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

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2020005179 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005179 Hearing No. 490-2019-00181X Agency No. 200I-0614-2018106318 DECISION On September 15, 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 17, 2020, final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Social Worker at the Agency’s Memphis Medical Center in Memphis, Tennessee. She requested that a supervisor oversee her clinical hours in order to obtain her Licensed Clinical Social Work (LCSW) designation. Record of Investigation (ROI) at 193, 206. Mental Health Supervisor (Supervisor) and Section Chief of Mental Health, Social Work, and Recovery Programs (Section Chief) explained the process for obtaining the LCSW designation. Section Chief stated that, to acquire an LCSW, Social Workers are responsible for obtaining a LCSW to meet weekly with them and supervise the required 3,000 clinical hours. ROI at 187. 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. 2020005179 2 Supervisor explained that the process is documented on a weekly basis, once the agreement has been finalized and the appropriate documentation has been submitted. ROI at 193. Once all of the steps are completed, stated Supervisor, the final packet is submitted to the licensure board so that the candidate may be allowed to take the examination. ROI at 193. The National Association of Social Work policy, per Section Chief, is that “you [do not] sign off on something you did not do. It would be unethical.” ROI at 187. Moreover, Supervisor clarified that this type of supervision is separate and distinct from the applicant’s employment supervisor, unless there is a supervisory agreement between the two parties. ROI at 193. Chief of Mental Health Services (Chief) confirmed that there was no specific individual responsible for signing Complainant’s LCSW paperwork. ROI at 203. Rather, it was Complainant’s responsibility to arrange for this supervision. See id. In this case, all parties concur that there was no written agreement between Complainant and any Agency employees to perform her LCSW supervision. ROI at 297. Supervisor stated that Complainant asked her to perform Complainant’s supervision for her LCSW. Supervisor asserted that she declined because she did not have the time to perform this function. ROI at 193. On April 19, 2016, Complainant sent Section Chief a message asking if Section Chief could do LCSW supervision. The response from Section Chief was, “I will.” ROI at 206. Complainant alleged that, in August 2017, she told Section Chief that she completed her required face- to-face supervised hours and needed Section Chief’s signature because she “was almost done.” ROI at 179. Complainant asserted that Section Chief responded by asking about her EEO complaint. ROI at 179. Complainant stated that she repeatedly asked Section Chief to sign her documentation, in October 2017, December 2017, and February 2018. Complainant resigned from the Agency on February 22, 2018. ROI at 237. In April 2018, Complainant stated that she visited Section Chief’s office and that Section Chief said she had to “think about signing my hours because I didn’t listen to her.” ROI at 179. Section Chief asserted that, even after Complainant’s resignation, she asked Section Chief to sign off on her paperwork. ROI at 187. Section Chief stated that she gave Complainant the appropriate paperwork, as she did every similarly situated employee, but she told Complainant that she would not supervise her for licensure purposes. ROI at 140. Section Chief alleged that Complainant brought her a completed book for her signature. ROI at 140. According to Section Chief, she explained to Complainant that she could not sign the LCSW paperwork, because she did not perform LCSW supervision of Complainant and could not sign anything that had not been discussed, that it would be unethical. ROI at 140, 187. Section Chief went on to state, “I was not going to sign off on something that did not happen…and was not going to sign off on something she brought back to the [Agency] after she resigned.” ROI at 187. Section Chief did not indicate that she said anything about Complainant’s EEO activity during this conversation, as alleged by Complainant. ROI at 179. 2020005179 3 On April 26, 2018, Complainant messaged Section Chief asking whether she had decided to sign off on Complainant’s hours. When Section Chief did not reply, Complainant messaged: “Okay, well I can see you’re still reading my messages and not responding. I won’t beg you.” ROI at 212. On May 12, 2018, and, again, on September 12, 2018, Complainant emailed Section Chief asking to discuss Section Chief’s “agreed upon 3,000-hour supervision and completion as well as the application process[.]” ROI at 214-15. In an October 2, 2018 email to Supervisor, Complainant stated that Section Chief refused to sign off on her clinical supervision hours and requested that Supervisor sign the documentation. In response, Supervisor declined and stated she was too busy. ROI at 235. On October 24, 2018, Complainant sent a message to an unidentified individual stating that Section Chief was not going to sign any of her hours and that she was going to “have to start over” beginning October 1, 2018. ROI at 216; 260-96. On December 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when Section Chief refused to sign off on her request for certification of clinical hours during her employment with the Agency. At the conclusion of the 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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on July 14, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit a brief in support of her appeal. The Agency contends that Complainant has not shown that anyone at the Agency agreed to complete her clinical representation for her LCSW. Moreover, the Agency claims that Complainant’s allegations about statements made by Supervisor and Section Chief were vague and without merit. Finally, the Agency argues that there was no requirement for Complainant to have supervision or complete her licensure to maintain her position at VA. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); 2020005179 4 see also Equal Emp. Opportunity Mgmt. Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. 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. 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. 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. 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. See 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 has not asserted a dispute of material fact. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case 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 adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 2020005179 5 The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder 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). Assuming, arguendo, that Complainant meets the prima facie case for race and retaliatory discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. Specifically, the relevant Agency officials stated that they did not perform supervision of Complainant relative to her LCSW clinical hours, nor were they required to do so. Moreover, Section Chief asserted that to sign Complainant’s paperwork, when she had not supervised Complainant, would be unethical. As such, both Supervisor and Section Chief provided legitimate, nondiscriminatory reasons to decline to sign Complainant’s LCSW paperwork. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Complainant stated that Section Chief brought up her EEO complaint in August 2017, when she asked Section Chief to complete Complainant’s LCSW paperwork. Section Chief stated that she did not agree to fill out the paperwork because she had not supervised Complainant. There are no witnesses or other evidence corroborating Complainant’s assertion. As such, we find that complainant failed to meet her burden of proof by a preponderance of the evidence that there was discriminatory intent in Supervisor’s and Section Chief’s decision to not sign her supervision paperwork. Rojas v. Dep’t of the Navy, EEOC Appeal No. 0120063514 (June 25, 2007) (affirming that when the evidence is in equipoise, Complainant did not meet their burden of proof by a preponderance of the evidence). While there is evidence that Section Chief had, at some point, agreed to complete LCSW paperwork for Complainant, there is no evidence, beyond the uncorroborated recollection by Complainant of a singular statement made by Section Chief, that Section Chief’s decision to not sign Complainant’s paperwork was due to retaliatory discrimination. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Even if an agreement was present, that was not fulfilled, Complainant has not provided sufficient evidence that the action was retaliatory, as opposed to merely poor management or mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Vetereans Affs., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. 2020005179 6 Complainant has failed to meet her burden in showing that the Agency’s proffered legitimate, non-discriminatory reasons were pretext to mask unlawful discriminatory animus. Therefore, the AJ’s finding of no discrimination was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision that there was no discrimination on the part of the Agency, and the Agency’s decision to implement the same. 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). 2020005179 7 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 March 21, 2022 Date