[Redacted], Clarine L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2020005415 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clarine L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005415 Hearing No. 510-2020-00144X Agency No. 200I-0675-2019103958 DECISION 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 21, 2020, final decision concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to her complaint, Complainant was employed as the Minority Veteran Program Outreach Coordinator at the Orlando VA Health Care System located in Orlando, Florida. Prior to August 18, 2019, Complainant’s first-level supervisor was B1. Thereafter, S1 became Complainant’s supervisor. Complainant’s second-level supervisor, S2, was the Associate Director for Operations. S3, the Medical Center Director, was her third-level supervisor. Complainant filed an EEO complaint, which was subsequently amended, alleging that she was subjected to a hostile work environment based on race (Black) and reprisal (prior 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. 2020005415 2 (1). On May 8, 2019, A1, the Voluntary Service Director, sent an email to Complainant that stated, “The journals2 were not your Pastor’s, her entourage, her family and your friends.” Complainant told B1 about the comments, but she did not address it; (2). On May 14, 2019, B1 sent an email to Complainant that stated she was not allowed to send after action reports to the Director without B1’s review and that she changed the Women’s Veteran Tea Party after action report Complainant had prepared; (3). On June 2, 2019, Complainant received notification that she was the subject of an Administrative Investigation Board (AIB); (4). On June 5, 2019, B1 prevented Complainant from conducting outreach events; (5). On June 7, 2019, after Complainant reported allegations of harassment to S2, he informed Complainant that her concerns would be addressed after the AIB concluded; (6). In July 9, 2019, Complainant was not allowed to use compensatory time from an approved event to go to her appointment; (7). As of August 2, 2019, the results of the AIB that was submitted on July 3, 2019, were still pending; (8). On August 16, 2019, Complainant was not allowed to use compensatory time from an approved event to go to her appointment; (9). On an unspecified date, B1 canceled several Minority Veteran Program events that Complainant was responsible for without justification; (10). On an unspecified date, after the Women’s Tea Party event concluded, A2, the Women Veterans Program Manager, was given the credit in an article while Complainant was placed under an AIB investigation; (11). On October 28, 2019, Complainant was removed from her employment; (12). On September 19, 2019, S1 changed Complainant’s Family and Medical Leave Act (FMLA) request date from September 16, 2019 to September 19, 2019; (13). On October 1, 2019, S1 required Complainant to sign an inaccurate performance standard form; 2 The journals were gifts for veterans attending the Women’s Veteran Tea Party event that was coordinated by Complainant and a coworker. 2020005415 3 (14). On October 3, 2019, the Voluntary Service Specialist accessed Complainant’s office space without proper authorization; (15). On October 6, 2019, an HR Specialist required Complainant to obtain updated medical information regarding her FMLA request; and (16). On November 12, 2019, S1 and a HR Specialist changed Complainant’s tour of duty from 0730 - 1600 to 0800 - 1630. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Although she initially requested a hearing, Complainant withdrew her request and asked for a final decision from the Agency. The AJ dismissed the hearing request and remanded the matter to the Agency for a decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged. This appeal followed. With respect to claim (1), A1 stated that the email she sent Complainant concerned her prior instructions that donated funds must be spent and used for veterans only. She had received a report that Complainant’s pastor brought a large group to attend the function who were not veterans and yet they took gift items and journals that were purchased with donated funds. A1 insisted that her comments were in reference and in accordance with Agency guidelines concerning the use of the funds.3 With respect to claim (2), S2 stated that Complainant was submitting reports directly to S3 that had not been reviewed by the chain of command. He also noted that due to concerns raised about Outreach activities, an AIB was convened. Additionally, he noted that it was decided that outreach activities should be more closely monitored. He denied that Complainant’s race and prior EEO activity were factors in these decisions, explaining that this was done routinely across the organization and was standard practice. With respect to claim (3), Complainant stated that she received an email from an AIB Member that she was under investigation for accountability and management of funds, purchase card usage, time and leave policies, and conflicts of interest and she required Complainant to meet on June 4, 2019. S2 stated that management learned of issues in the Outreach Program after B1 became the Acting Supervisor, effective April 28, 2019. He stated that, after about a month, an AIB was conducted concerning the outreach activities, and Complainant’s allegations that she was being harassed. He denied that Complainant’s race and prior EEO activity were factors in this incident. 3 B1 was on extended leave and did not provide a statement for the investigation. 2020005415 4 Regarding claim (4), S2 stated that due to concerns raised about the outreach activities and the ongoing AIB, it was decided to curtail outreach activities until the AIB was concluded. Regarding claim (5), Complainant stated that she met with S2 and told him about B1’s bullying and harassing conduct that created a hostile environment. She stated that S2 heard concerns regarding these issues and stated that they would be addressed when the AIB was completed. S2 stated that management received notification of a harassment complaint from Workforce Management and Consulting and normally they would have started a fact-finding investigation immediately; however, because they already had an AIB schedule to start, he felt that it would have been awkward to interview employees regarding the same/similar content at the same time. Therefore, he suggested that the harassment claims be reviewed after the AIB, if Complainant’s concerns were not addressed. According to S2, he received approval from the EEO Manager on this approach on July 5, 2019, and he communicated the plan to Complainant. Regarding claims (6) and (8), Complainant maintained that she was not allowed to use compensatory time that she had earned to go to appointments on July 9, 2019, and August 16, 2019. The Agency produced Complainant’s time and attendance reports which indicated that on July 3, 2019, a request was denied, because “employee communicated the wrong dates. Correcting the timecard.” A July 16, 2019, entry also indicated a denial and stated, “working with timekeeper to correct.” Regarding the month of August, there is no indication that Complainant was ever denied compensatory time. The records show that she was approved and used compensatory time during that month. (ROI, Tab 7-18, pp. 276-279). Regarding claim (7), Complainant stated that, as of September 4, 2019, she had not received any updates on the status of the AIB, which was submitted on July 3, 2019. S2 stated that this was correct, but denied that Complainant’s race and prior EEO activity were factors in this matter. Regarding claim (9), Complainant stated that B1 cancelled several Outreach events. S2 stated that the outreach activities were suspended pending the AIB investigation into the Outreach Program. Regarding claim (10), Complainant indicated that, on May 7, 2019, she was told that A2 was writing two articles on the Veteran Women’s Tea Party, and on May 15, 2019, a document was published internally with no mention of Complainant’s participation as the lead program manager. A2 changed the document after receiving a text from Complainant asking why A2 did not include her. Additionally, Complainant stated that, on May 15, 2019, an article was released with no credit given to her. S2 stated that he had no awareness of this incident. 2020005415 5 Regarding claim (11), the record indicates that S1 proposed that Complainant be removed on September 17, 2019, and it was sustained by S3 on October 28, 2019; however, because Complainant filed a whistleblower claim, S1 stated, the removal was placed on “hold,” and was not carried out. S1 stated that the justification for the removal included: (A) Failure to Follow Policy, (B) Failure to Safeguard Government Property, (C) Failure to Follow Instruction, (D) Apparent Conflict of Interest and (E) Making Defamatory Statement(s) about Agency Physicians.4 S3 stated that as the Interim Medical Center Director, she was the deciding official on all adverse actions. She confirmed that S1 proposed the removal on September 17, 2019, and she sustained the proposed removal, but the decision was rescinded on November 7, 2019, based on the whistleblower allegation. S3 felt that the removal was necessary based on Complainant’s behavior, and the lost trust in her to professionally and appropriately represent the Agency. Complainant’s removal, she stated, was needed to promote the efficiency of the Agency and to restore public trust based on the gravity of the charges and supporting evidence. Regarding claim (12), Complainant stated that S1 was provided with FMLA paperwork on September 16, 2019, for her signature but S1 did not provide the correct date that she signed the document. Complainant stated that S1 changed the date on the FMLA request to reflect September 19, 2019, which was incorrect. According to Complainant, she discussed the matter with Agency officials and S1 referred her to HR. S1 stated that she did not change the dates on the FMLA request paperwork. She maintained that she signed Complainant’s paperwork on September 19, 2019, after receiving the original request for FMLA from Complainant on September 18, 2019 via email. S1 denied that Complainant’s race and prior EEO activity were factors in this incident and she responded that she had no knowledge of Complainant complaining that this incident constituted harassment based on race and reprisal. HR-1 stated that on the copy that they received the date was not changed, the FMLA period request was for September 13, 2019 through March 31, 2020, and the supervisor signed the form on September 19, 2019. Regarding claim (13), Complainant stated that around October 1, 2019, S1 began contacting her about signing her performance appraisal and stated that Complainant had not signed when she had requested her to do so. 4 According to the letter proposing her removal, the Agency noted that Complainant, on or about September 7, 2019, while representing the Agency as an Outreach Program Specialist, stating to a group of participants, “I have a paranoia, I don’t trust that doctor at the VA,” or words to that effect. She also allegedly stated, “For those that don’t want to come to the VA, I understand, being a veteran of the Persian Gulf, I don’t trust them jokers either.” The Agency noted that these remarks were made to a large group at a suicide prevention motorcycle ride and were later posted on Facebook. 2020005415 6 Complainant stated that the dates were incorrect and S1 was going to get it corrected with HR but S1 never mentioned it again. Complainant stated that when she went to sign, she noticed that the dates were still incorrect and S1 again stated that she would contact HR. S1 stated that she requested that Complainant electronically sign the performance plan at the beginning of FY19, which was the same performance plan as Complainant had previously signed. S1 stated that because of the change in supervisors that the plan had to be resigned and that was the same for all other staff in the office. Regarding claim (14), Complainant stated that CW1 accessed her office and did not report the entry to the department at the time. Complainant maintained that there were protocols setup to access employees’ workspaces that were established by facility police. Complainant indicated that she completed a report of contact on October 7, 2019, and had not received any response from leadership. S1 stated that this incident occurred on October 4, 2019, when Outreach materials were needed at Lake Nona and were in the Lake Baldwin Outreach office. She stated that an employee from Lake Nona was at the Lake Baldwin facility that day and she requested that the Administrative Officer provide access to the Outreach office for CW1 and the Lake Nona Staff member so that they could locate the Outreach materials. She denied that Complainant’s race and prior EEO activity were factors in this incident. CW1 stated that she accessed Complainant’s office upon receiving a request to assist an employee from Complainant’s department to gather outreach materials. She escorted the employee and an additional employee into the office/storage closet and obtained the material. After which, she closed the office and they parted ways. She denied that Complainant’s race and prior EEO activity were factors in this incident. Regarding claim (15), Complainant stated that, on October 6, 2019, she was required to obtain an updated medical certification and was provided specifics on what information to put on the form. Complainant stated that she had to drive across town to have them fill out the form as requested. HR-1 stated that on October 5, 2019, she reviewed Complainant’s FMLA request for processing and saw that Complainant was incapacitated for a period. Additionally, she saw that Complainant was working after a physician had stated that she was supposed to be off work. HR- 1 stated that she needed to clarify the information with Complainant and that was why she sent Complainant an email requesting updated medical information. Regarding claim (16), Complainant stated that, on November 12, 2019, S1 detailed her to a new assignment with a change in her tour of duty from 7:30 a.m. to 4:00 p.m. to 8:00 a.m. to 4:30 p.m., and when she asked why, S1 told her that she needed to speak to HR-2. Complainant maintained that HR-2 and S1 detailed her without any procedure or policy to support the decision. 2020005415 7 S1 stated that the decision to change Complainant’s tour of duty was based on the work hours of the new department to which Complainant was detailed. She stated that Complainant’s tour of duty was never actually changed; however, because after speaking with the detail supervisor, there was an agreement to keep Complainant in the 7:30 a.m. - 4 p.m. time slot. HR-2 stated that his role was simply to type the detail letter for the supervisor to present to Complainant. He stated that no one decided to change Complainant’s tour of duty, the tour of duty was already established for the department. He confirmed, however, that Complainant’s tour of duty was never changed. 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”). Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). 2020005415 8 Assuming, arguendo, Complainant established a prima facie case of race and reprisal discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions set forth in claims (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), and (16). Complainant offered no persuasive evidence of pretext. Complainant argued that the actions of various Agency officials were unacceptable because the journals were not issued to the Speaker, who was a Life Coach by profession and the author of the journals. Complainant stated that because the room was 95% minority Veterans, they removed the alleged missing journals. Additionally, she acknowledged submitting an after-action report directly to S3 and argued that allowing B1 to change the report was an abuse of authority that endangered the public health, safety and well-being of the minority community. Complainant further stated that she had not been presented with the outcome of the AIB and that she believed that management colluded to provide a false narrative and falsely accuse her of unauthorized purchases. We find that Complainant did not establish that discriminatory animus played any role regarding claims (1), (2), (3), (4), (5), (6), (8), (9), (11), (12), (13), (14), (15), and (16). With respect to claims 7 and 10, we find that Complainant did not establish a prima facie case of discrimination based on race or retaliation. While Complainant is a member of protected classes based on her race, and previous EEO activity, we find no evidence that she suffered an adverse employment action when, as of September 4, 2019, she had not yet received any updates on the status of the AIB, or when she did not receive the credit she felt she was entitled to for her efforts. Moreover, under the specific facts of this case, we do not find that Complainant was subjected to conduct that was reasonably likely to deter her or others from engaging in protected EEO activity with respect to claims (7) and (10). Harassment In order to establish a claim of hostile-environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). At the outset, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that any of the actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2020005415 9 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2020005415 10 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. 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 October 19, 2021 Date