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

Equal Employment Opportunity Commission

Feb 16, 2023

Appeal No. 2022001981 (E.E.O.C. Feb. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001981 Hearing No. 410-2021-00288X Agency No. 200I-0316-2020104332 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 January 31, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Administrative Specialist, GS-0501-09, at the Agency’s Atlanta Regional Office in Decatur, Georgia. On August 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (59) and in reprisal for prior protected EEO activity when: 1. since April 2019, Complainant’s Lead (Lead) has denied and ignored Complainant’s training and refresher training on new processes for tracers and 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. 2022001981 2 multiple platforms and items requiring Complainant to process Agency Inquiry Routing & Information System (IRIS) in only one day; 2. since April 2019, the Financial Chief (FC), after Complainant reported training deficiencies, took no action on her report and ignored and refused to discuss Complainant’s training concerns and other work-related matters; 3. in November 2019, Complainant was denied instructions on the Mail Portal; 4. in January 2020 and February 2020, FC misplaced Complainant’s request for training and doctor’s note; 5. in April 2020, Complainant received a “needs improvement” on her midyear evaluation; 6. since April 2020, Complainant has been denied instructions on the accounting portion of travel in Financial Management System (FMS); 7. on June 30, 2020, Complainant learned she was not selected for a Loan Specialist position; and 8. since April 2019, Complainant has been isolated and ignored by supervisors and coworkers. In her affidavit, Complainant alleged that Agency management has refused to train her since she asked for accounting training in 2013. Complainant alleged that she began experiencing harassment at that time, and that it continued upon her return to the finance office. Complainant said she asked FC for training and refresher training every week and was denied with no justification. With respect to Claims (1) through (3), Complainant referred the investigator to email correspondence between her and her supervisors. The investigative file contains several emails in which Complainant sought generalized training and in response, her supervisors asked Complainant to be more specific or to complete an assessment to determine what kind of training was necessary. In response to Complainant’s request for training on specific tasks, Complainant’s supervisors directed Complainant to published guidance containing step-by-step instructions. FC generally denied treating Complainant differently. With respect to Complainant’s requests for training, FC acknowledged that she had many conversations with Complainant, but explained that Complainant had given open answers regarding training without being specific. Complainant refused and said “no, I need to be trained on everything.” Accordingly, FC gave Complainant an “individual training assessment which is a tool for supervisors as well as the employees to see what area they need to be assisted with.” Complainant never returned the assessment. Further, FC said that Complainant asked for one-on-one training, and FC and the Leads in the department provided Complainant with one-on-one training. Additionally, FC said that Complainant was never denied training on the Mail Portal. Rather, “on the initial day of training, on or about September 2019, the entire finance area received instructions, Complainant was late and did not participate in the training. When she did arrive to work, the Lead, at that time, sat with Complainant at her desk and trained her on the Mail Portal.” Complainant then received subsequent one-on-one training two more times. 2022001981 3 In Claim (4), Complainant said that she placed a written request for training and a doctor’s note on FC’s desk, but FC said she did not receive the paperwork. Complainant argued that FC received other employees’ paperwork and claimed that FC’s failure to receive her paperwork constituted discrimination and retaliation. FC denied the allegation. Regarding Claim (5), Complainant said that FC did not give her an explanation for giving her a “needs improvement” rating. Complainant speculated that FC did not like that Complainant “added the director on an email pertaining to credit not debt, on his travel card that he is responsible for maintaining.” Complainant further protested that, while she was in payroll training, the payroll clerk was supposed to check his work, but did not. Rather, he waited for Complainant to “miss a step processing payroll and did not fix it,” which affected her appraisal. FC responded that Complainant made numerous mistakes on her daily financial transactions during the applicable fiscal year. In Claim (6), Complainant explained that she was assigned responsibility for travel cards, but refused to sign forms agreeing to be responsible because she did not get training. Complainant argued that the assignment was another way to make her look bad. Complainant believed that FC made sure that GS-7 employees received travel training, but she did not. FC said she did not train Complainant on the accounting portion of FMS, which was the Accountant’s responsibility. FC believed the Accountant administered the training in June 2020. Complainant said she did not receive an explanation why she was not selected for the position at issue in Claim (7). When asked what qualifications she possessed for the position, Complainant referred the investigator to the resume she submitted for the position. The Selecting Official testified that she and a selecting committee scored each application with respect to specialized experience and each candidate’s description of their experience. While supervisor checks were conducted for each application, the Selecting Official said that the checks did not change the candidates’ overall rankings. The Selecting Official made an offer to one candidate whose score far exceeded any of the other internal candidates. After that person declined the offer, the committee re-opened the application and invited external candidates. Because no one remaining candidate far exceeded the others, the committee held interviews. As a result of the interviews, the Selecting Official offered the position to the candidate with the best remaining score. The Selecting Official said that Complainant ranked fifth best out of six internal candidates in the first process, and then fifth out of six candidates in the second process, which contained three internal candidates and three external candidates. The Selecting Official noted that some internal candidates withdrew their application during the second process. Other members of the selecting committee provided testimony that corroborated the Selecting Official’s explanation. 2022001981 4 Complainant argued that the Agency created a hostile work environment and suggested that all of her prior supervisors be asked who told them to act as if Complainant did not exist. Complainant referenced a conversation with FC in 2013 in which FC asked why Complainant did not take medical retirement. The supervisors who provided affidavits for the record uniformly rejected Complainant’s suggestion that they subjected her to a hostile work environment or retaliation. FC recalled receiving Complainant’s complaint of harassment via email and provided a copy of her response providing Complainant information on how to file a complaint. 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed CONTENTIONS ON APPEAL On appeal, Complainant contends that she established prima facie claims of discrimination and harassment and that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. In support, she again references the 2013 conversation with FC about medical retirement. Accordingly, Complainant requests that the Commission reverse the final decision. 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, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2022001981 5 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, as more fully detailed above, the Agency has articulated legitimate, non- discriminatory reasons for its actions. Regarding Claims (1) - (3) and (6), as explained by FC and emails in the record, Complainant was provided with one-on-one training and standard Agency instructions on how to perform her duties. When FC attempted to pinpoint what specific training Complainant was seeking, Complainant failed to provide additional details and failed to return an assessment which would have provided more information about her needs. FC also denied misplacing Complainant’s documentation as alleged in Claim (4). Further, there is no indication that Complainant suffered harm as a result. Regarding Claim (5), FC also explained that Complainant received a “needs improvement” on her performance appraisal because she had made numerous mistakes on her daily financial transactions during the fiscal year. Finally, Complainant was not selected in Claim (7) because she was not among the highest ranked candidates following an application scoring and interview process. The Selecting Official confirmed that when the selection committee originally ranked the six internal candidates, Complainant ranked fifth based on her application and specialized experience. After the initially selected candidate declined, the pool added external candidates and Complainant again ranked fifth out of six candidates. Documentation related to the selection committee’s selection process supports that the selectee was the top-ranked candidate based on his interview responses which more effectively demonstrated his qualifications for the position than Complainant. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. We note that Complainant withdrew her request for a hearing. As Complainant chose to withdraw her request for a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Complainant fails to carry her burden of demonstrating, by a preponderance of the evidence, that she was subjected to discrimination or reprisal. 2022001981 6 Hostile Work Environment To prevail on a claim of discriminatory harassment, Complainant would have to 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 classes; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Complainant alleged that management created a “a hostile work environment that makes it difficult for me to focus on my duties, causing mental and emotional stress, that has affected my health.” In addition, Complainant claimed that she was isolated and ignored by management officials and co-workers. Management officials denied ignoring or isolating Complainant or being responsible for such conduct. Complainant further stressed that FC previously made a comment that she interpreted as encouraging her to retire. Even assuming that FC made the allegedly unprofessional comment, we note that the antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Furthermore, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The evidentiary record reflects that the alleged incidents were more likely the result of personality conflicts, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2022001981 7 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. See 29 C.F.R. § 1614.604(c). 2022001981 8 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 February 16, 2023 Date