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

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020001258 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001258 Agency No. 200I-0596-2019100942 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 30, 2019, final decision 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., and 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 an Advanced Medical Support Assistant at the Agency’s Lexington Medical Center located in Lexington, Kentucky. Complainant’s first line supervisor was S1, the Medical Support Assistant Supervisor. Her second line supervisor was S2. Complainant filed a complaint alleging that she was discriminated against and subjected to a hostile work environment based on race (Black), age (over 40), and in retaliation for engaging in protected EEO activity when: 1. On October 1, 2018, she was removed from front desk duties by S1. 2. On October 3, 2018, she was accused of inappropriate conduct (per patient complaint) and referred to the Ethics Board. 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. 2020001258 2 3. Beginning on October 26, 2018 and ongoing, she was continuously assigned Physical Therapy duties, by S1 and S2. 4. On November 14, 2018, she was issued a Notice of Proposed 7-Day Suspension (that was later rescinded). 5. On December 21, 2018, she was charged Absent Without Leave (AWOL) for December 20, 2018. 6. On December 21, 2018, she was reassigned to the Physical Therapy Department and her duty hours changed from 7:30 am - 4:00 pm to 8:00 am - 4:30 pm. 7. From December 26, 2018 to January 8, 2019, she was issued written work criticisms via e-mail. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. Complainant requested a final decision, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency dismissed claims 1 and 2 as untimely because Complainant did not seek EEO counseling until December 3, 2018, which was beyond the 45-days allotted for contacting a counselor. The Agency indicated that claims 1 and 2 would be considered as background evidence for Complainant’s harassment claim. Regarding the remainder of the claims, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. With respect to claims 1 and 3, S1 stated that Complainant was removed from “front desk” duties and eventually reassigned because of conduct related issues. S1 stated that prior to removing Complainant from front desk duties, she spoke to Complainant over the course of several months about having visitors at the front desk, using her cell phone and the Agency’s phones to conduct personal business at the front desk, having conflicts with other employees at the front desk, doing her homework at the front desk, and making errors in scheduling patients. S1 stated that all these matters contributed to her decision to remove Complainant from front desk duties, but she thought the scheduling errors were the most serious. Regarding claim 2, on October 3, 2018, Complainant was accused of inappropriate conduct, i.e., accepting a gold necklace from a patient, and was referred to the Ethics Board. Complainant acknowledged accepting the gift. With respect to claim 4, the record indicates that on November 14, 2018, Complainant was issued a Notice of Proposed 7-Day Suspension, for inappropriate conduct. Although Complainant maintains that the proposal was never rescinded, there is no dispute that she was never actually suspended. Regarding claim 5, S1 stated that Complainant was not at work on December 20, 2018. Complainant presented medical documentation the next day, but she did not have enough sick 2020001258 3 leave to cover the absence, therefore, it was initially charged as AWOL. Subsequently, Complainant used annual leave to cover the absence and the AWOL status was changed. Regarding Complainant’s permanent reassignment, i.e., claim 6, S1 and S2 stated that the physical therapy department had a “scheduling backlog” and there was simply more of a need there than the front desk. S1 also felt the transition would minimize some of the issues Complainant was having at the front desk. S1 further stated that Complainant was very good with the public, but had a lot going on which kept her from being the best she could be at the front desk. With respect to her tour of duty, S1 stated that the physical therapy department had set hours of operation with a standard tour of 8:00 am to 4:30; consequently, being reassigned to that department resulted in the change in hours. Finally, with respect to claim 7, Complainant stated that from December 26, 2018 to January 8, 2019, she was issued written work criticisms via e-mail. Complainant did not specify which emails she viewed as evidence of harassment. The Agency noted that the record did contain emails from S2 asking Complainant to provide a status update regarding work related tasks on various dates in January 2018. 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”). At the outset, pursuant to 29 C.F.R. § 1614.107(a)(2), we AFFIRM the Agency’s dismissal of claims 1 and 2 on the grounds that Complainant sought EEO counseling in an untimely manner. Complainant did not provide a justification on appeal for extending the time limitation period. Regarding claims 3, 5, and 6, we note that in order to prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate 2020001258 4 responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming Complainant established that prima facie case of discrimination on all alleged bases, we find that the Agency articulated legitimate, non-discriminatory reasons for claims 3, 5 and 6, and that Complainant provided no persuasive evidence of pretext. Finally, with respect to Complainant’s hostile work environment claim concerning claims 1, 2, 4, and 7,2 we do not find that she established that these matters were based on discrimination; nor do we find that claims 1, 2, 4, and 7 were severe or pervasive enough to have subjected Complainant to unlawful harassment. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job- related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 2 Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail with regard to claims 3, 5, and 6. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2020001258 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). 2020001258 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 June 28, 2021 Date