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

Equal Employment Opportunity Commission

Jul 29, 2021

Appeal No. 2020002803 (E.E.O.C. Jul. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dixie K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002803 Agency No. 20DR-01AL-2019101597 DECISION On February 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 16, 2020 final decision concerning an 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. BACKGROUND During the relevant period, Complainant worked as a Management and Program Analyst at the Agency’s Office of Logistics and Supply Chain Management Services in Washington D.C. On March 8, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African-American) and sex (female) when: 1. on August 17, 2018, Complainant requested permission from her second-level supervisor (“S2”) to attend two trainings, and in response, S2 denied her request and instructed Complainant to resubmit her training requests to the recently hired Deputy Director; 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. 2020002803 2 2. in September 2018, Complainant submitted three training requests to her newly hired supervisor who, in response, asked Complainant to place a priority of preference on her training requests and to identify trainings which she had received during the preceding 12-month period. Complainant provided the requested information and upon review her immediate supervisor (“S1”) denied two of the three requested trainings; 3. on August 15, 2018, Complainant received notification that she was not selected for the Supervisory Management and Program Analyst, GS-15 position, under Announcement Numbers OAL-CW-18-VO-10250243 and OAL-CW-18- VO10248734; 4. on September 4, 2018, S1 told Complainant that she and other GS-14 employees had to brief senior executive staff, and that due to realignment they would have to undergo a desk audit; 5. on September 25, 2018, after the completion of a team building exercise, S1 offended Complainant by stating “I’m surprised [a co-worker] was the only one to stand up and take leadership;” 6. on December 19, 2018, management denied Complainant’s request to participate in the President’s Management Council Interagency Rotation Program; 7. on January 2, 2019, during a project meeting, Complainant was threatened with written counseling if she did not complete an assigned task by January 7, 2019; 8. on January 18, 2019, management denied Complainant’s request for administrative leave, and instead charged her with annual leave; and 9. between January 21-24, 2019, management assigned Complainant tasks without providing clear guidance on several occasions. After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on September 11, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant through her attorney, argues that the Agency’s response to her appeal was untimely. However, the record reflects that on March 13, 2020, the Commission extended the Agency’s deadline to May 23, 2020, based on a request for an extension. 2020002803 3 ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, 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 Construction 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 Department of Community Affairs 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 based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 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 analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, non-discriminatory reasons for its actions as more fully discussed below. During the period at issue, Complainant worked as a Management and Program Analyst at the Agency’s Office of Logistics and Supply Chain Management Services in Washington D.C. Her first line supervisor was the Procurement Analyst, and the Deputy Director was her second line supervisor.2 Regarding Complainant’s claim that between July 10, 2018 and January 7, 2019, the Procurement Analyst denied several of Complainant’s training requests, the Acting Director (“S1”) (Caucasian, male) explained that Complainant had not been denied training since his assumption as Deputy Director in September 2018, and subsequent ascension to Acting Director. S1 stated that he did not work with Complainant before September 7, 2018. 2 The Director of the Office of Logistics, also Complainant’s former supervisor, resigned from Agency employment effective April 8, 2019. The investigator attempted to obtain the former Director’s testimony but no response was received. 2020002803 4 He further stated that on one occasion, he denied Complainant’s training for an extended detail. S1 stated, however, after further consultation with the Associate Executive Director of the Office of Logistics, he reversed the decision and allowed Complainant to attend the extended detail. S1 stated that after he assumed the position of Deputy Director on September 4, 2018, Complainant sent a follow up email complete with the SF 182 training requests for three training events identified by Complainant. In response, S1 asked Complainant to order the training in order of preference for attendance, as S1 was able to support one or more. At that time, S1 noted that he had not been able to review the budget at that time and “needed to be judicious in my approvals until such a time as I had a full understanding of costs, time requirements, mission requirements, and workloads.” S1 stated that on September 14, 2018, he asked Complainant for a copy of all training she had attended in the preceding twelve months, to make an informed decision based on cost, time away from the office, and suitability of training mission requirements. He noted that Complainant provided him with six separate requests for the twelve months prior to his assumption of the Deputy Director position. Complainant attended two of the six training events (VWISE Ignite DC and 24th Annual Women’s Leadership Development Colloquium). In addition, S1 noted that Complainant attended Federal Acquisition Project and Program Management Level Certification Course FPM 362 through the Veterans Affairs Acquisition Academy (VAAA) in September 2017. S1 stated that when Complainant followed up with him regarding her training requests, he informed her that he was planning to announce a GS-14 Supervisory Position and asked Complainant if she planned to apply for it because he would like to see a return on his investment. Specifically, S1 stated he informed Complainant “I would like to see the skills obtained at these trainings, specifically leadership events, deployed within the office through seeking of greater responsibilities.” He stated, however, Complainant informed him that she had no interest in being a supervisor. Moreover, S1 stated that Complainant has continuously demanded training and “detail opportunities dating back to my arrival. Based on her mission requirements, level of productivity, competence in her work, and willingness to assume roles of greater responsibilities within the organization, I feel that she does not merit these opportunities. However they have not been denied.” Complainant also claimed that on September 4, 2018, S1 informed Complainant that as a GS-14 employee, she and other GS-14 employees had to brief senior executive staff and that due to realignment they would have to undergo a desk audit. S1 explained that he was required to review the performance plans of all employees assigned to him against the approved organizational structure which included Position Management Reviews as necessary. At that time, the Office of Logistics Policy and Supply Chain Management Services (“LPSCMS”) office had recently had a new organizational structure approved by the Associate Executive Director and the Acting Executive Director. 2020002803 5 The record reflects that coupled with this new Organizational, the organizational performance descriptions for PSCMS were beyond 5 years old, and in some cases exceeding 10 years, S1 informed his team that an audit of the position descriptions and a position audit was necessary in accordance with the VA Handbook 5003 and the Office of Human Resources Management (“OHRM”) Classification Guide for Supervisors. In addition, S1 stated that he requested from each employee a summary of their respective workloads based on mission and responsibilities. The information was used to validate a positional review to either increase, maintain or decrease position grades as warranted. Complainant also claimed that on December 19, 2018, management denied Complainant’s request to participate in the President’s Management Council Interagency Rotation Program (“PMC IRP”). Complainant stated that on December 18, 2018, she emailed S1 her application package for the PMC IRP and explained page 3 of the application must be endorsed by S1 and the Deputy Assistant Secretary. She stated that she did not receive a response from S1 by the end of that day. Complainant called him regarding her email and S1 told her that he would discuss her application the following day. The next day, December 19, 2018, Complainant went to S1’s office to discuss her application and he had the former Deputy Director come into his office. Thereafter, S1 informed Complainant that her request was denied because he needed her to manage the Category Management Program. Complainant then went to see the Associate Executive Director to discuss S1’s denial of her training request. The Associate Executive Director acknowledged that he read the email from the former Deputy Director and explained that he agreed with the former Deputy Director. Complainant also claimed that on September 25, 2018, S1 offended Complainant when he stated after a team-building exercise that he was surprised that a named male employee (Employee 1) was the only one to stand up and take leadership was taken out of context. Specifically, S1 stated that at the end of the team building exercise, he mentioned that he was surprised that Employee 1 took the lead “as he was the lowest ranking individual. Based on my studies in leadership, while it is not always the case, the lower ranking members of a team will defer to those in higher positions based on a presumptive knowledge. This statement was not intended, nor was it delivered in such a manner as to cause offense.” In regard to Complainant’s claim that between January 21-24, 2019, S1 assigned Complainant tasks without providing clear guidance on several occasions, the record reflects that Complainant’s task involved drafting a “white paper” requested by S1’s supervisor. The record reflects that the white paper was to contain specific information about “category managers.” However, the guidance provided to Complainant was changed. Specifically, the S1’s supervisor was looking for a “more in-depth” work product. 2020002803 6 Regarding Complainant’s claim that on January 18, 2019, management denied Complainant’s request for administrative leave and instead charged her with annual leave, the record reflects that Federal offices were closed due to inclement weather when Complainant’s request for administrative was denied. The date of the leave denial was January 14, 2019 rather than January 18, 2019. S1 explained that Human Resources provided instructions on how to account for leave for January 14, 2019 snow day and identified, “that the individual maintained a telework agreement, the person most either work or take an annual leave day. S1 noted that Complainant “errantly or falsely submitted an Administrative Leave Request at 12:09 pm which indicated she had neither worked prior to that time and did not intend to work any other time during the day.” With respect to Complainant’s allegation that on August 15, 2018, she received notification that she was not selected for the Supervisory Management Program Analyst, GS-15 position, under Announcement Numbers OAL-CW-18-VO-10250243 and OAL-CW-18-VO10248734, the record reflects that Complainant applied for the two positions. On or about July 15, 2018, Complainant received an electronic notice from “USAJobs” advising her that her resume had been forwarded to the hiring manager for both positions. On August 15, 2018, the former Deputy Director announced that the Acting Director and another employee had been selected for the subject positions. The record further reflects that on August 17, 2018, Complainant received an electronic notification from “USAJobs” advising her that she was not selected for either position. The former Deputy Director stated that an external panel made up of GS-15 employees screened the qualified candidates of which there were 14 and 12 one each certificate. The panel scored all candidates and thereafter, the former Deputy Director interviewed the top two scoring applicants from each certificate. Thereafter, the former Deputy Director selected the Procurement Analyst and another Agency official for the subject positions. The Human Resources (HR) Specialist reviewed the selection documents and filed a complaint after discovering a discrepancy. He indicated that there was one-point difference between the score sheets submitted by a panel member and those submitted by the former Deputy Director. The HR Specialist also noted that it was well known to employees that the former Deputy Director and the Procurement Analyst had a very friendly relationship. While the HR Specialist believed that the alleged score change was intentional, the record was devoid of any evidence that it was intentional. Moreover, the record reflects that Complainant has never alleged that she was more qualified than the Procurement Analyst or the other individual who was interviewed. Complainant claimed that on January 2, 2019, during a project meeting, Complainant was threatened with written counseling if she did not complete an assigned task by January 7, 2019. The record reflects that the former Deputy Director gave Complainant two tasks with a specific timeline. In addition, he informed Complainant that if there was any ambiguity concerning the timeline that they could get together and discuss. The former Deputy Director stated that he “went out of my way to clarify the task (meeting multiple times & various email clarifications) and reduced the requirement when the employee indicated that time was a challenge.” 2020002803 7 He then informed Complainant that he needed to meet the timeline established by his supervisor. Complainant was placed on notice that she would be counseled after three failures to meet a simple task. Furthermore, the former Deputy Director stated that his conversation with Complainant was “held behind closed doors, in my office as not to embarrass her in front of her peers. [Complainant] was unable to complete the assignment and her supervisor [S1] had to complete her assignment.” Regarding Complainant’s claim that on January 18, 2019, management denied Complainant’s request for administrative leave and instead charged her with annual leave, the record contains a copy of the former Deputy Director’s email dated January 18, 2019 to Complainant. Therein, the former Deputy Director informed Complainant that he denied her request for administrative leave on Monday, January 14, 2019 because the telework policy states that “individuals who maintain an ad hoc telework agreement must work on the days that the government is closed through telework and account for their time in that manner. If you did not work (as is identified through your Administrative Leave request), you must submit for regular leave. Please refer to the telework policy if you have any questions. Please submit either regular or sick leave for this date.” Beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by management were pretextual designed to mask discriminatory animus. Harassment Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 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 bases -- in this case, race and sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of her race and sex. S1 asserted that he did not subject Complainant to harassment. S1 stated that he allowed Complainant to attend the training and details that she requested. He further stated that he tried to communicate with Complainant “consistently during my tenure as the Deputy Director and now Acting Director. [Complainant] has continuously been stand-offish and unopen to communication. As a manger, and more importantly a leader, I have been - - and continue to be - - more than willing to work with [Complainant] to help her enhance her capabilities and skillsets and advance her career, however, it is a gesture that she has refused to accept.” 2020002803 8 Complainant has simply provided no evidence to support her claim that her treatment was the result of her race or sex. Her claim of discriminatory harassment 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. 019982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination 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. 2020002803 9 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 July 29, 2021 Date