[Redacted], Charlene S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 21, 2021Appeal No. 2020004595 (E.E.O.C. Dec. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004595 Hearing No. 460-2020-00028X Agency No. 2003-0504-2019102284 DECISION On August 18, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2020 final order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND In September 2018, Complainant accepted a transfer from another Agency facility in New Jersey. After the transfer and during the period at issue, Complainant worked as a Supervisory Program Specialist, Grade GS-12, Step 1, and supervised the Community and Patient Relations Service (C&PRS) for the Agency’s Thomas E. Creek Medical Center of Amarillo, Texas. Among Complainant’s duties as C&PRS Chief were managing a volunteer program and drafting responses to Congressional inquiries. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2020004595 Effective, March 31, 2019, the facility’s Associate Director (AD) who was then Complainant’s first-line supervisor (Caucasian, white, female) demoted Complainant to a Grade GS-11, Step 3, position as a Volunteer Services Program Officer. On May 22, 2020, Complainant filed a formal complaint alleging the Agency discriminated against her based on race (Caribbean-American of origin, sex (female), and color (Dark Brown) when: 1. From October 1, 2018, through the present, the AD assigned Complainant the duties of two vacant unfilled “community positions:” 2. In December 2018, the AD falsely accused Complainant of “going around and asking people to hire Complainant’s daughter:” 3. In January 2019, the AD directed Complainant to write-up a subordinate employee because the AD was not happy with that employee's performance; 4. On January 9, 2019, the AD directed Complainant to assume the duties of Voluntary Service Management, and when Complainant asked how to perform those duties, the AD responded, “Read a book;” 5. On February 20, 2019, the AD directed Complainant to complete assignments which were not required for her position; 6. On February 28, 2019, the AD denied Complainant’s request to attend Social Media Boot Camp training, on March 26, 2019 and 27, 2019; 7. On February 28, 2019, the Associate Director failed to take action when the Quality Safety and Value (QSV) Chief sent an email to Complainant directing Complainant not to send staff to the QSV area or and not to interact with the QSV staff; 8. On March 6, 2019, the Associate Director initiated an administrative fact-finding inquiry, based on false allegations that Complainant failed to attend required meetings or sent subordinate employees in Complainant's absence; 9. On March 14, 2019, the Human Resources Officer denied Complainant’s request to retain her previous salary as a Grade GS-11, Step 7; 10. On March 15, 2019, the AD demoted Complainant during the probationary period, from Complainant's position as a Supervisory Program Specialist, GS-12, Step 1, to a Voluntary Services Officer, GS-11, Step 3; 11. On March 15, 2019, the AD accused Complainant of not writing or not timely staffing responses to Congressional inquiries; 3 2020004595 12. On April 1, 2019, the AD failed to take action or investigate a violation of Complainant’s privacy rights; and 13. On April 4, 2019, AD directed Complainant to attend "huddles" with the male coworker who was placed in Complainant's former position after her demotion. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 29, 2020 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on July 16, 2020. The Agency subsequently issued a final order adopting the AJ’s finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. See Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant did not identify material factual discrepancies or evidentiary deficiencies within the record that required resolution through a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 4 2020004595 Disparate Treatment: Claims 1, 6, 9, and 10 The Commission reviews disparate treatment claims by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the Agency’s employment actions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). Regarding Claim 1, AD explained that the community positions referred to a Volunteer Services Manager position vacancy in C&PRS that was created by an employee’s recent retirement. AD stated that Complainant had inappropriately delegated management for the hospital volunteer program to a C&PRS employee who was a Grade GS-7, program support assistant. According to AD, it was appropriate to assign the program support assistant with tasks to help the volunteer program. AD had expected Complainant, as the Chief of C&PRS, to assume leadership over the volunteer program until the Volunteer Services Manager position was filled. Regarding Claim 6, the record revealed that Complainant made six training requests; AD approved three and disapproved three. AD stated that she disapproved Complainant’s training requests for multiple reasons including C&PRS staff being needed in the facility during the training, the social media training had already been attended by a C&PRS employee whom Complainant supervised, and funding was unavailable at the time of the request. We note that AD had also arranged for job training opportunities, involving shadowing more experienced C&PRS managers at other facilities, but Complainant had declined to travel to the other facilities. Regarding Claim 9, AD cited policy from VA Handbook 5013, which provides that, when Complainant was placed into GS-11 position because of non-completion of a supervisory probation in a GS-12 position, Complainant had lost entitlement to grade retention and pay retention. Regarding Claim 10, the Agency documented performance-based reasons for demotion. Complainant had sent a subordinate C&PRS employee to the operational “huddles,” whereas the AD had instructed that Complainant, as a manager, was to be present at such leadership meetings. Complainant, moreover, failed to follow AD’s instructions to complete certain tasks such as creating a strategic calendar and a strategic plan. Complainant was also in charge of Congressional inquiries. However, multiple draft responses were overdue. Complainant acknowledged that she had failed to complete some tasks timely but then attributed her performance issues to C&PRS employees whom she supervised. 5 2020004595 The record contained evidentiary supports the Agency’s non-discriminatory rationales behind its adverse actions that Complainant alleged were discriminatory. Meanwhile Complainant has failed to carry her burden of persuading us, with preponderant evidence, that the Agency’s articulated reasons were pretext masking discriminatory or retaliatory animus. Hostile Work Environment: Claims 2 through 5, Claim 7, Claim 8, and Claims 11 through 13 We analyze Claim 2, Claim 3, Claim 4, Claim 5, Claim 7, Claim 8, Claim 11, Claim 12 and Claim 13 in the context of harassment or a hostile work environment. Only if Complainant can establish that management acted abusively and with a discriminatory intent, will the Agency be held liable for a hostile work environment. Britany C. v. U.S. Postal Serv., Appeal No. 2019001456 (May 29, 2019). Although Complainant's time as a probationary manager for the facility’s C&PRS may be perceived as stressful and contentious, we do not find that this matter was hostile or abusive. We note that not every unpleasant or undesirable action occurring in the workplace constitutes an EEO violation. Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Instead, we find that Complainant has experienced was not discriminatory harassment but rather everyday indignities, petty slights, routine admonishments or supervisory criticisms that are regular in the workplace. Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). Even if Complainant’s accusations could be characterized as severe or pervasive, Complainant discriminatory animus. Only one witness shared Complainant’s perception that her being the only African American manager at the facility had factored into her conflicts with AD. On the other hand, this witness also acknowledged that there was no proof of discrimination but rather opined that Complainant had engaged in a “power struggle” with AD. Again, Complainant has failed to prove the AD acted out of animus toward Complainant’s raised bases. Taken together, we have been presented with conflicting testimonies that were, at best, in equipoise. Therefore Complainant did not carry her burden to prove any EEO prohibited motives had factored into the Agency’s allegedly hostile conduct at issue. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 6 2020004595 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 29 C.F.R. § 1614.604(c). 7 2020004595 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 21, 2021 Date Copy with citationCopy as parenthetical citation