[Redacted], Elise S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 2021Appeal No. 2020004400 (E.E.O.C. Nov. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004400 Hearing No. 520-2016-00542X Agency No. 200H-0561-2015104709 DECISION On July 21, 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 June 24, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Program Support Assistant, GS-0344-06, at the Agency’s VA Healthcare System in East Orange, New Jersey. On September 24, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of disability (cardiac condition, hypertension) when: 1. on July 13, 2015, the Chief Accountant (S1), denied Complainant’s request to be reassigned back to Complainant’s former Accounting Technician position; 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. 2020004400 2 2. on July 13, 2015, Education Designated Learning Officer (S2) did not reply to Complainant and left Complainant’s office when he commented to Complainant that a coworker “should not work like a slave all day,” and Complainant asked, “to make that statement is to say what?”; and 3. on July 22, 2015, S2 ignored Complainant’s request to go to Employee Health and states that Complainant could not go to Employee Health without his permission. In Claim (1), Complainant claimed that S1 and S2 would never give her a response when she asked to be reassigned back to her old position. S2 responded that, when Complainant became angry, she often said she would go back to Fiscal Service or find another job. S2 insisted that Complainant freely transferred into her current position, and that he does not have the authority to unilaterally transfer her back. According to S2, Complainant is welcome to speak with Fiscal Service supervisors to see if they have a vacant position, or to apply for other openings. S1 denied receiving a request from Complainant for a transfer and asserted he has not supervised Complainant since she transferred to the Office of the Director in 2011. Complainant testified that she did not report Claim (2) to anyone. S2 asserted that the phrase was a figure of speech and taken out of context, and said that the department, as a whole, is overworked sometimes. For Claim (3), Complainant alleged that she requested permission from S2 to go to Employee Health and said that S2 responded that Complainant needed his permission to go. S2 responded that he never prevented Complainant from going to Employee Health; “there were no consequences other than [S2] reminding [Complainant] later that she needed the supervisory slip unless it was an emergency.” 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that she has been “subjected to four or five titles from [her] supervisor,” references a meeting with the local union, and suggests that documentation that would clarify her reassignment is missing from the record. 2020004400 3 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). 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). Assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. In Claim (1), S2 explained that he did not have the authority to transfer Complainant, and that she was free to ask other departments whether they would be willing to receive her. Regarding Claim (3), there is no evidence that S2 denied Complainant the opportunity to visit Employee Health. S2 stated that Complainant requested to go to Employee Health numerous times and that she often did so without getting the required supervisor’s slip. S2 noted that Complainant would frequently go when she was upset and wanted to walk out. S2 added that Complainant once became angry when she found out about the topic of a meeting and left. S2 acknowledged that he asked Complainant to come back to the meeting, but Complainant did not experience any consequences other than S2 reminding Complainant to request a supervisor’s slip unless it was an emergency. 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). 2020004400 4 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. Complainant suggests that there is a lack of documentation regarding her transfer to Fiscal Service. However, the record contains a Form SF-50 demonstrating that she transferred in 2011, and Complainant does not articulate what other documentation is necessary. Complainant has not offered any other evidence tending to demonstrate that the Agency officials’ articulated reasons are false or unworthy of belief. We note that Complainant withdrew her request for a hearing before an EEOC Administrative Judge, and as a result we do not have the benefit of an Administrative Judge's credibility determinations of the witnesses in this case. As such, we find that Complainant did not establish that she was subjected to to discrimination as alleged. Hostile Work Environment To establish a claim of discriminatory 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; and (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In this case, the Commission finds that the totality of the alleged conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Specifically, as to the comment in Claim (2), S2 explained that the remark was just a figure of speech referring to how they were overworked by customer needs. S2 stressed that he was never referring to the Complainant individually but was referring to all of the staff. While S2's comment may have been ill-advised, there is no evidence that the remark was directed at Complainant or based on Complainant's protected class. 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 Servs., Inc., 523 U.S. 75, 81 (1998). As a result, the Commission finds that Complainant was not subjected to discrimination 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. 2020004400 5 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). 2020004400 6 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 November 16, 2021 Date Copy with citationCopy as parenthetical citation