[Redacted], Emiko S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021005065 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emiko S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021005065 Agency No. 20DR-0010-2020105602 DECISION On September 15, 2021, 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 August 16, 2021, 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. 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 EEO Specialist at the Agency’s Office of Mental Health and Suicide Prevention, Veterans Crisis Line in Washington, D.C. On October 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), color (light-skinned), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. During March 2020, the Program Manager accused her of scheduling a meeting with the Facility Director “behind his back;” 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. 2021005065 2 2. In April 2020, the Program Manager (a) referred to Complainant as “Kunta Kinte” after she attempted to explain to him the guidelines stated in Federal Regulation MD-110; and (b) On other occasions called Complainant a “liar” when she tried to clarify the process for completing a sexual harassment form; 3. Between April 2020 and July 2020, the Program Manager denied Complainant’s requests to create and distribute an EEO newsletter; 4. In August 2020, while Complainant was on sick leave, the Program Manager sent Complainant a text to her personal cell phone asking when she was returning to work; 5. In August 2020, the Deputy Director issued Complainant a Letter of Counseling; 6. On multiple occasions on unspecified dates, the Program Manager told Complainant that he oversaw her and that she was his subordinate. Complainant stated that in March 2020, she arranged a meeting with the Facility Director to discuss what direction he wanted the EEO program to go and what areas needed improvement. See Report of Investigation (ROI) at 72.2 She stated that the Program Manager became offensive and demeaning, asking how she would feel if someone made an appointment with her boss without telling her, and accusing her of going behind his back. See id. Complainant further stated that the Program Manager called her Kunta Kinte, a reference to a slave in the movie “Roots,” when she tried to explain to him the guidelines stated in Federal Regulation MD-110. See ROI at 72. She explained that in June 2020, she was notified that sexual harassment charges had been filed against the Director by five staffers and she wanted to inform them of their right to file an EEO complaint but the Program Manager became extremely impatient and when she gave him a copy of VA Directive 500, he called her a liar and accused her of failing to use due diligence by failing to provide him with correct information. See ROI at 73. Complainant stated that between April 2020 and July 2020, the Program Director was demeaning when he rejected her suggestion of an EEO newsletter, stating that he made her feel as if her efforts were useless. See ROI at 73-74. She asserted that she later presented the idea to the new Director who loved the idea and implemented it. See ROI at 74. Complainant stated that in August 2020, while she was out on sick leave after surgery, the Program Director sent her an email asking when she would return to work which she later found out was because of the investigation into Complainant’s recording of calls with the Program Manager. See ROI at 74. She stated that she was also called several times by Human Resources asking when she would return to work. See id. Complainant stated that she recorded the Program Manager’s conversations with her for her own personal safety and that as a result, the Deputy Director issued her a Letter of Counseling for a 2 The record indicates that the Program Manager retired in January 2021 and was unable to be interviewed during the investigation. See ROI at 93-94. 2021005065 3 violation of Agency Directive 1078 which forbids audio recordings without a person’s consent. See ROI at 74. The Agency also conducted an investigation which resulted in a Report of Findings, where a Human Resources Specialist found that there was tension between the Program Manager and Complainant and that they misunderstood the other’s comments but that she did not find evidence of a hostile work environment. See ROI at 131. A Privacy Specialist recommended that Complainant delete the audio recording. See ROI at 134. Complainant asserted that on multiple occasions, the Program Director began regularly talking to her in a demeaning and belittling manner in staff meetings, saying things like “As soon as you realize that you are a just a [peon] in this organization and no one will listen to you the better,” and “you can send things out to staff without my review but be prepared to deal with [what] comes next.” See ROI at 74-75. A Program Specialist corroborated Complainant’s assertions, stating that the Program Manager “engaged in argumentative discussions with [Complainant] in which the tone … seemed demeaning and off-putting.” See ROI at 87. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that the Agency articulated a legitimate, nondiscriminatory reason for the Letter of Counseling, i.e., that Complainant violated an Agency Directive by recording a conversation with the Program Manager, and Complainant did not establish that the reason was a pretext. The decision further found that Complainant did not establish that any of the alleged incidents of harassment were due to a protected basis. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency’s decision. The Agency did not file a brief in response. 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”). Adequacy of the Investigation As an initial matter, we will address Complainant’s challenge to the adequacy of the investigation. Investigations of discrimination complaints are governed by 29 C.F.R. § 1614.108 2021005065 4 and the instructions contained in the Commission's EEO MD-110. See EEO MD-110, Chap. 6 (“Development of Impartial and Appropriate Factual Records”). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” 29 C.F.R. § 1614.108(b); EEO MD- 110, Chap. 6, § § I, IV.B., IV.C. An investigator must be unbiased, objective and thorough. Id. at § V.C. The investigator must obtain all relevant evidence from all sources regardless of how it may affect the outcome. Id. at § V.D. Complainant’s only challenge to the adequacy of the investigation is based on her argument that the Agency did not interview one of the named witnesses on her behalf. We note, however, that Complainant has not identified any additional information which that witness would have provided which was otherwise excluded from the investigation. Absent any such information, we cannot find that the investigation was inadequate and upon our review of the record, we find that it was adequately developed such that we can draw conclusions as to whether discrimination occurred. See Spencer T. v. Dep’t of Transp., EEOC Appeal No. 0120180241 (Aug. 2, 2019). Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This established order of analysis, in which the first step normally consists of determining the existence of a prima facie case, need not be followed where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue. Since the instant complaint involves an allegation of disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for issuing Complainant the Letter of Counseling, it is Complainant’s burden to demonstrate by a preponderance of the evidence that the agency’s issuance of the letter of counseling was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary’s Honor Center v. Hicks, 509 U.S 502 (1993). We find that the Agency articulated a legitimate, nondiscriminatory reason for issuing Complainant the Letter of Counseling, specifically, that Complainant violated an Agency directive by recording a meeting with the Program Director without his consent. We further find that there is no evidence in the record to indicate that the Agency’s reason was a pretext for discrimination. Complainant does not dispute that she recorded the meeting nor that it was in violation of Agency policy, only states that after the Agency’s internal investigation of the incident, the Privacy Specialist only recommended that she delete the recording. The mere fact that Complainant disagrees with the Agency’s decision to impose discipline for her violation of Agency policy is not evidence of pretext. See Owen W. v. Dep’t of Veterans Affs., EEOC Appeal No. 2019000144 (Dec. 19, 2019). 2021005065 5 Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the statutorily protected class; (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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Id. We note that the threshold for establishing retaliatory harassment is different than for discriminatory hostile work environment. Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it is not severe or pervasive enough to alter the terms and conditions of employment. “If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, Sect. II.B, e.g. 17. As an initial matter, we find that there is no evidence in the record to indicate that any of the alleged incidents of harassment are due to Complainant’s sex. With respect to the Program Manager calling Complainant “Kunta Kinte,” we note that, assuming the comment was made, it was inappropriate and racially insensitive. However, the comment was unsubstantiated and as such, is not sufficient to establish a hostile work environment. See Donovan O. v. Dep’t of Agric., EEOC Appeal No. 2022003858 (Sept. 20, 2022). Lastly, we turn to Complainant’s assertion that the Program Manager frequently treated her in a belittling and demeaning manner in staff meetings, making comments such as “As soon as you realize that you are a just a [peon] in this organization and no one will listen to you the better,” and “you can send things out to staff without my review but be prepared to deal with [what] comes next.” See ROI at 74-75. In this case, while we are troubled by the comments and the Program Manager’s treatment of Complainant, we find that Complainant has not provided sufficient evidence to indicate that this behavior was retaliatory, as opposed to evidence of a bad interpersonal relationship between the Program Manager and Complainant. The evidence in the record indicates that the Program Manager and Complainant had a tense interpersonal 2021005065 6 relationship and disliked each other, but the Commission has repeatedly stated that such personality clashes and other common workplace grievances “while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner.” Felton M. v. Dep’t of Agriculture, EEOC Appeal No. 0120171203 (June 23, 2017). The simple fact of Complainant’s position as an EEO Specialist is not sufficient to infer that any negative behavior directed towards Complainant was due to protected activity. We are troubled, however, by the Program Manager’s unprofessional conduct towards Complainant. While we do not find that Complainant has met her burden in this instance, we strongly remind the Agency of the importance of maintaining unfettered access to the EEO process and ensuring that all supervisors and managers avoid making any comments or engaging in behavior which may dissuade a reasonable person from engaging in protected activity. See Parker v. Dep’t of the Navy, EEOC Appeal No. 01970412 (Oct. 4, 2000). 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 finding that Complainant did not establish that she was subjected to discrimination as alleged. 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 2021005065 7 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). 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 2021005065 8 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 January 31, 2023 Date