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

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020002796 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clora D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002796 Agency No. 20DR-0005-2017103340 DECISION On March 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 27, 2020 final decision concerning her equal employment opportunity (EEO) complaint claiming 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as a Management Analyst, GS-13, at the Agency’s Office of Information and Technology (OI&T) in Washington, D.C. On June 29, 2017, Complainant filed a formal complaint alleging she was subjected to harassment/a hostile work environment based on her age (over 40), genetic information, and in reprisal for prior EEO complaints when: 1. during fiscal years 2015 to 2017, management did not issue Complainant a position description and tasked her with assignments that were “fake and convoluted;” 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. 2020002796 2 2. on September 19, 2016, the Deputy Assistant Secretary for Information Technology Resource Management (ITRM) issued Complainant a 2-day suspension without pay for failure to follow instructions; 3. on August 15, 2016, the Chief Learning issued Complainant a Performance Improvement Plan; 4. on or about December 1, 2016, management took no action when Complainant complained that a Management Analyst (MM) and other co-workers were publicly discussing her medical condition; 5. on March 1, 2017, the Chief Learning Officer issued Complainant a 14-day suspension without pay for inappropriate conduct; 6. on May 3, 2017, the Chief Learning Officer directed Complainant to return to the office despite the order of the VA Police for Complainant to remain out of the office; 7. on May 4, 2017, Complainant was moved to a new seat next to an employee who filed a complaint against her; and 8. on May 26, 2017, the Supervisory IT Specialist issued Complainant a Proposed Removal letter. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.2 In accordance with Complainant’s request, the Agency issued a final decision on February 27, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency also dismissed Complainant’s GINA claim, noting the record is devoid of any allegations by Complainant that she was discriminated against because of genetic information. The Agency also dismissed claims 2, 3 and 5 as independently actionable claims, noting they were untimely raised. However, the Agency considered these claims as part of Complainant’s overall discriminatory harassment claim. The instant appeal followed. Complainant did not submit a brief on appeal. 2 The record reflects that during the investigation, Complainant did not submit an affidavit. 2020002796 3 ANALYSIS AND FINDINGS Dismissal of GINA Claim As already noted, the Agency dismissed Complainant’s GINA claim because there is no indication that Complainant alleged any facts to suggest she was discriminated against because of genetic information. After careful review of the record, we find the Agency’s dismissal of this basis was correct. See Long v. Department of Defense (AAFES), EEOC Appeal No. 0120113789 (2013) (dismissal of genetic information as a basis where record devoid of facts regarding genetic tests of the complainant or complainant’s family members, or complainant’s family history). Harassment/Hostile Work Environment Claim 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her age, genetic information or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Disparate Treatment Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant claimed that on during fiscal years 2015 to 2017, management did not issue Complainant a position description and tasked her with assignments that were “fake and convoluted.” The Supervisory Information Technology Specialist (supervisor) (over 40) asserted that on October 11, 2016, Complainant was provided a position description including a formal performance plan with defined performance measures for the period in which she worked in 2020002796 4 Chief Learning Office (CLO) during fiscal years 2016 and 2017. He further stated that Complainant’s performance plan was similar in scope to those of other GS-13 Management Analysts. Regarding claim 2, Complainant alleged that on September 19, 2016, the Deputy Assistant Secretary for Information Technology Resource Management (ITRM) issued Complainant a 2- day suspension without pay for failure to follow instructions. The Chief Financial Officer (Chief) (over 40), the former Deputy Assistant Secretary for ITRM, also Complainant’s third-level supervisor, stated that on July 10, 2016 he issued Complainant a 3-day suspension without pay for failure to follow instructions. The Chief stated that Complainant’s supervisor provided documentation in which Complainant was directed to obtain a government issued travel card in order for her to attend staff meetings in West Virginia. However, Complainant refused to order a travel card, based on general or unsubstantiated information about unauthorized employees getting access to her Personal Identifiable Information (PII). The Chief stated that on August 11, 2016, he was notified of a 3-day suspension proposed by the supervisor. The Chief stated that because Complainant did not get a travel card, she was specifically told she could not travel to West Virginia for the meeting. He noted, however, that Complainant arrived at the West Virginia location at 10:30 a.m. which was 4½ hours after her scheduled duty start. In addition, the Chief noted the supervisor’s suspension letter contained an “aggravating factor” in which Complainant was reprimanded on July 22, 2016 for making disrespectful comments and failing to complete the travel card application. After Complainant was issued the proposed 3-day suspension, she appealed the proposal to the Chief and also provided him rebuttal information. On September 19, 2016, the Chief determined to reduce the suspension to 2 days and issued Complainant the memorandum on the same day, but she refused to sign it. Regarding claim 3, Complainant alleged that on August 15, 2016, she was placed on a Performance Improvement Plan. The supervisor stated that on August 15, 2016, he issued Complainant a Performance Improvement Plan (PIP), not the Chief Learning Officer, as alleged by Complainant. Prior to issuing the PIP, the supervisor stated that he consulted with the Human Resources (HR) Specialist, the Chief Learning Officer and the Director of IT Workforce Development. Specifically, the supervisor placed Complainant on notice that her performance of the duties of her position as Management Analyst was unacceptable. The supervisor expressly noted that on July 6, 2016, Complainant failed to handle differences of opinion in a business-like fashion by stating that she would show up at a meeting that required official travel orders to attend without actually having travel orders. The supervisor noted that Complainant made these comments after being told that attending was not an option without being on official travel orders. The supervisor also noted that Complainant failed to maintain a positive relationship with others and failed to handle difference in opinion in a business-like fashion by insulting the Director of IT Workforce Development by referring her as “cavalier” during a conference call. 2020002796 5 Moreover, the supervisor stated that Complainant would be given until November 14, 2016 to demonstrate acceptable performance. The supervisor also noted that the next 90 calendar days, he would meet with Complainant on a weekly basis to discuss her work and assist her in organizing and prioritizing her work. The HR Specialist (over 40) explained that her role was advisory. She stated that after discussing Complainant’s performance with the supervisor, they determined that there was failure of a critical element. Regarding claim 4, Complainant claimed that on or about December 1, 2016, management took no action when Complainant complained that a Management Analyst (MM) and other co- workers were publicly discussing her medical condition. The supervisor stated that on or about December 1, 2016, Complainant refused to name the staff member who she felt was discussing her medical condition. The supervisor stated in his written interrogatory dated October 6, 2017, that he had worked with Complainant to understand the complaint, and documented her concerns and also discussed the complaint with the Director of the other employees in Complainant’s work area. The supervisor stated that he informed Complainant that he sought advice from Human Resources and conducted an inquiry of the allegations and shared his informal investigative findings with the Anti-Harassment Coordinator for OI&T and OI&T EEO representative. He also noted that Complainant was provided links to the Anti-Harassment Office and What Employees need to know document. Furthermore, the supervisor acknowledged that there were no witnesses to this incident. Regarding claim 5, Complainant alleged that on March 1, 2017, the Chief Learning Officer issued Complainant a 14-day suspension without pay for inappropriate conduct. The Chief Learning Officer (over 40), also Complainant’s second-level supervisor, stated that he issued Complainant a 14-day suspension because she acted inappropriately to an office visitor who was also a customer after discussing the issue with the supervisor and HR Specialist. The HR Specialist confirmed that the reason for the 14-day suspension were disrespectful comments, failure to complete allocations, failure to follow instructions and inappropriate conduct. Regarding claim 6, Complainant asserted that on May 3, 2017, the Chief Learning Officer directed Complainant to return to the office despite the VA Police’s order for Complainant to remain out of the office. The record contains a copy of an email from Complainant’s co-worker (MM) dated May 3, 2017, to Agency management concerning an incident involving a male Management Analyst. Specifically, MM stated that approximately 11:15 a.m., three Homeland Security Police and a VA employee who she has never seen before, showed up in her work area. 2020002796 6 She stated that she was on the phone when they began questioning a male Management Analyst if he approached Complainant and touched her. MM stated that once she heard the questions, she immediately began telling them that Complainant was a troublemaker. She explained recent events that occurred between her and Complainant and gave them an email that she sent to Agency management. The record also contains a copy of the supervisor’s email dated May 3, 2017 to Complainant. Therein, the supervisor expressed concerns about her communication with MM. He further stated that as the result of their discussion about her April 18, 2017 communication with MM, the email served as a written notice of the supervisor’s expectations and explicit instructions to “move forward.” Specifically, the supervisor instructed Complainant to cease non-work related contact with MM, all non-related concerns Complainant has with MM are to be addressed to him, and when communicating with other employees, her language shall be respectful and non- provoking. The record reflects that the supervisor authorized Complainant to telework for the reminder of the day. Regarding claim 7, Complainant alleged on May 4, 2017, Complainant was moved to a new seat next to an employee who filed a complaint against her. The supervisor explained that on May 9, 2017, he received an email from a named employee (Co-worker 1) requesting that Complainant be reassigned to a different cubicle. Specifically, Co-worker 1 stated that she was contacted by the Department of Homeland Security stating that she was mentioned in a complaint by Complainant which was resolved. The supervisor stated that because Co-worker felt uncomfortable with Complainant sitting so close to her work area, he contacted Building Management to request a new cubicle for Complainant. Regarding claim 8, Complainant asserted that on May 26, 2017, the supervisor issued her a Proposed Removal letter. The supervisor explained that on May 26, 2017, he sent an email to Complainant with the subject header “Proposed Removal.” Therein, the supervisor stated that on August 15, 2016, Complainant was issued a written Warning of Unacceptable Performance- Notice of Opportunity to Demonstrate Acceptable Performance and advised her to meet the standards of acceptable performance for the critical element of her position as a Management Analyst. According to the supervisor, the Chief decided to terminate Complainant’s employment effective July 12, 2017. The image which emerges from considering the totality of the record is that there were conflicts and tensions with management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment unless that treatment is the result of discriminatory factors. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. 2020002796 7 The essence of the action is, of course discrimination.”). Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her age, genetic information and /or prior EEO activity. Again, we note that Complainant failed to submit an affidavit during the investigation of her complaint and also did not submit a brief in support of the instant appeal. Her claim of harassment/hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2020002796 8 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. 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 June 9, 2021 Date