[Redacted], Chelsie L., 1 Complainant,v.Denis McDonough Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 12, 2021

Appeal No. 2020000191 (E.E.O.C. Apr. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chelsie L.,1 Complainant, v. Denis McDonough Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000191 Hearing No. 410-2014-00406X Agency No. 200I-0557-2013104460 DECISION On September 23, 2019, 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 August 19, 2019 final decision 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 During the period at issue, Complainant worked as a Raspatory Specialist, Grade GS-8, at the Agency’s Carl Vinson Medical Center in Dublin, Georgia. On September 23, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of religion (Christian), race (African-American) and in reprisal for prior protected EEO activity when: 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 2020000191 1. on or about August 17, 2013, donated leave and back pay were not credited to Complainant in the same manner as one of her co-workers; 2. on August 23, 2013, Complainant's request to have some Fridays and "extra" Sundays off was denied; 3. by memorandum, dated October 10, 2013, the charge in a proposed reprimand was sustained and, as a result, Complainant was issued a written reprimand; 4. on November 25, 2013, Complainant was not included on an e-mail message that posted available overtime opportunities; 5. on or about December 10, 2013, Complainant's balance of donated leave had been removed from Complainant's Leave and Earning Statement; 6. on December 12, 2013, Complainant received an overall rating of "Excellent" rather than "Outstanding” on her fiscal year (FY) 2013 performance appraisal; and 7. on February 28, 2014, Complainant was detailed for 30 days while a fact-finding investigation was conducted to determine if she had created a hostile work environment. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 3 2020000191 We examined Complainant’s claims religious, racial and retaliation discrimination in accordance with the U.S. Supreme Court’s three-part analysis from McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish prima facie of disparate treatment, 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 adverse employment action. 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 its burden, Complainant bears the ultimate responsibility to persuade the fact-finder by a preponderance of the evidence that the Agency acted based on animus toward Complainant’s EEO-protected characteristics. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). We may bypass with first requirement of the prima facie case establishment in some cases, to include the present matter. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas test, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that Agency’s justification for any of its actions were pretexts to mask unlawfully discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). Here, Agency management articulated legitimate, nondiscriminatory reasons for its actions as detailed below. Regarding Claim 1, concerning Complainant’s donated leave and backpay, the Agency explained that its rules only permitted Complainant to use leave donated from other co-workers to cover Complainant’s absence for the purpose of caring for her mother’s emergency medical needs. Once Complainant returned to work, she could not use any excess donated leave for other purposes. Regarding Complainant’s claim that the Agency owed her back pay for professional certification, the Agency stated that its payroll audit found that Complainant had been fully compensated based on the date the Agency received her certification credentials. Regarding Claim 2, Complainant’s allegation that Agency had discriminatorily denied her request for Fridays or Sundays off, the Agency explained that shift-schedules were prepared bi- weekly in a manner that rotated days off evenly among Complainant and her comparators. Regarding Claim 3, concerning management reprimanding Complainant, her supervisor explained that Complainant had disrupted a staff meeting by raising her voice and accusing the supervisor of denying her Fridays off over three months. The supervisor directed Complainant to discuss the matter after the staff meeting in the supervisor’s office, but Complainant refused. The written reprimand was issued for disrespectful conduct toward the supervisor. Regarding Claim 4, regarding Complainant’s claim that she was excluded from an email about overtime opportunities, the supervisor explained that she had printed, in hard-copy, a message that was directed to all staff. 4 2020000191 The supervisor stated that the available overtime dates were physically posted during a period and in a location so that they were visible to Complainant and her comparators. Regarding Claim 5, that donated leave credit was wrongfully removed from Complainant’s leave and earnings statement, the Agency explained that applicable rules governing donated leave mandated returning leave to the donor after Complainant’s authorization to use the donated leave had expired. Regarding Claim 6, Complainant’s claim that she should have been rated “outstanding” as opposed to “excellent” for her overall performance in Fiscal Year 2013, the supervisor determined that Complainant did not merit an outstanding because she had not been exceptional on all performance criteria. The supervisor further explained that she had also rated some of Complainant’s coworkers excellent instead of outstanding. Regarding Claim 7, where Complainant alleged she was involuntary detailed to another supervisor in reprisal for the prior EEO claims, Agency management witnesses explained that Complainant was detailed in order to conduct a fact-finding inquiry into her coworkers’ complaints that Complainant had not only been difficult to work with, but also bullied and intimidated them. Based on our independent review of the evidence of record, we conclude that Complainant failed to prove, to a preponderance of the evidence, that these reasons that the Agency has articulated, were pretexts to hide actual prohibited considerations of her race, religion, or EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s decision finding that Complainant was not subjected to discrimination as alleged. 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. 5 2020000191 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. See 29 C.F.R. § 1614.604(c). 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. 6 2020000191 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 April 12, 2021 Date