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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2021004279 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emily A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004279 Hearing No. 490-2016-00173X Agency Nos. 2003-0598-2015103552 and 2003-0598-2015104618 DECISION On July 7, 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 June 30, 2021, final order 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 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 order. At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency’s Central Arkansas Health Care System in Little Rock, Arkansas. Agency Case Number: 2003-0598-20151046182 (Complaint1) On August 24, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (African- American), disability (mental), and reprisal for prior protected EEO activity when: 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. 2 For ease of reference we shall utilize the Administrative Judge’s statement of the claims. 2021004279 2 1. on April 6, 2015, the Supervisory Medical Support Assistant (Supervisor) issued Complainant a written counseling and put it in her file; 2. from June 5, 2015, through the present date, Complainant's request for reasonable accommodation from her physician to human resources has not been approved and the Employee Relations and Labor Relations Specialist (Specialist1) failed to respond to her repeated requests for updates; 3. on July 16, 2015, the Supervisor accused Complainant of being rude to a patient and attempted to issue her a report of contact of his verbal counseling; 4. on August 7, 2015, the Supervisor failed to respond to Complainant 's reporting about a patient cursing her and hanging up the phone abruptly twice; 5. on August 10, 2015, the Supervisor intimidated Complainant when he refused to explain why he wanted to meet with her at the end of the day; 6. on August 11, 2015, the Supervisor intimidated Complainant when he entered her work area and questioned why her phone registered in the system as not being on; 7. on August 13, 2015, the Human Resource Officer (HR Officer) denied Complainant's accommodation request and contends that her request for accommodation had been met; 8. on August 20, 2015, the Supervisor failed to respond to Complainant reporting that an argument between two Patient Service Assistant employees (PSA1 and PSA2) had disturbed her work environment; 9. on September 16, 2015, the Supervisor reassigned work from her colleague, the Patient Services Assistant (PSA3) to Complainant; 10. on September 16, 2015, the Supervisor failed to respond to Complainant's written sick leave request; 11. on October 14, 2015, the Supervisor interfered with Complainant's performance of her duties when he used her phone code to log into the ACD phone system; 12. on October 21, 2015, the Supervisor issued Complainant a written counseling; 13. on November 5, 2015, Complainant became aware that the Supervisor, the Business Manager for Primacy Care Service (Business Manager) and the Associate Chief of Staff for Primary Care (Associate Chief) denied her request to be rated Exceptional on all four performance standards; 2021004279 3 14. on November 10, 2015, Complainant became aware of demeaning statements made about her by PSA1 when, while laughing and in a loud voice, she stated, "She ran out the door like she is so concerned about him...She is always calling him a bum...he ... probably had some drugs or he was trying to rob somebody and they shot him in his ass."; 15. on November 12, 2015, the Supervisor, the Business Manager, and the Associate Chief denied Complainant’s request to change her first line supervisor from the Supervisor to the Supervisory Program Support Assistant (Supervisory Assistant); 16. on November 24, 2015, Complainant felt threatened when she became aware that Interim Medical Center Director (Interim Director) sent a letter to Complainant's husband after she accessed his medical records; 17. on December 9, 2015, the Associate Chief cancelled Complainant's cash award and gave her a time off award; 18. on January 25, 2016, the Supervisory Assistant assigned Complainant to perform the duties originally assigned to the PACT Team Clerk; 19. on January 28, 2016, the Supervisor intimidated Complainant when he told her he was going to issue her a memorandum for allegedly telling a co-worker that she was pissed off and she doesn’t know who she’s messing with; 20. on January 28, 2016, the Supervisor threatened Complainant when he told her he was going to tell the Union Representative that she declined to attend the meeting; 21. on January 29, 2016, the Supervisor intimidated Complainant when he required only her to check her phone to show it was in the active and available mode; 22. on February 17, 2016, the Supervisor disclosed Complainant’s physical health issues to other co-workers during a staff meeting by commenting that he knows how she felt because he has back problems too; 23. beginning on March 9, 2016, and ongoing, the Supervisor failed to act when Complainant complained that he was affecting her work performance and causing her anxiety by working in the adjacent cubicle for two weeks; 24. beginning on March 15, 2016, and ongoing, the Supervisor intimidated Complainant and affected her duties by working in the cubicle adjacent to hers; 25. beginning on March 15, 2016, and ongoing, the Supervisor failed to respond in a timely manner to approve the complainant’s request for sick leave request; 2021004279 4 26. on March 30, 2016, the Supervisor wrote negative comments on Complainant’s mid-term performance evaluation; 27. beginning on April 7, 2016, and ongoing, Complainant became aware that the Business Manager and other management officials had delayed the processing of her FMLA request since March 15, 2016; 28. on April 11, 2016, the Supervisory Assistant threatened Complainant when she yelled and reassigned to her the duty of making a primary care appointment for a patient. After its investigation into Complaint1, 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 (AJ). Complainant timely requested a hearing. Agency Case Number: 2003-0598-2015103552 (Complaint2) On June 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to hostile work environment and discrimination on the bases of her disability (mental), race (Black), and reprisal (prior EEO activity) when: 1. from March 15, 2016, and ongoing, the Business Manager, the Supervisory Human Resources Specialist (Supervisory HR Specialist), the Specialist1, and the Reasonable Accommodation Coordinator (RA Coordinator) lied to Complainant and did not ensure that her Family Medical Leave Act (FMLA) request was processed in a timely manner; 2. on May 10, 2016, the RA Coordinator did not respond to Complainant’s first request for an update about her FMLA request, and on May 12, 2016, the RA Coordinator did not respond to the complainant’s second request until the complainant had already left for the day; 3. on May 10, 2016, the Supervisor did not timely respond to Complainant’s annual leave request; 4. on May 13, 2016, the Supervisory HR Specialist requested Complainant provide additional medical documentation, even though she had previously provided it to the Supervisory HR Specialist and the Specialist1; 5. on April 26, 2016, the Supervisor told Complainant he needed to speak with the timekeeper about her leave balances; 6. on May 18, 2016, the Business Manager, the Supervisor, and the Union Representative met with Complainant about her reasonable accommodation request and tried to force her to sign paperwork that she had not received or reviewed prior to the meeting; 2021004279 5 7. on May 20, 2016, the Deputy Associate Chief of Staff for Primary Care (Deputy Associate Chief) charged Complainant 1 hour of AWOL; 8. on May 23, 2016, the Business Manager and the Deputy Associate Chief sent emails about Complainant while Complainant was on leave; 9. on June 27, 2016, the Supervisor required Complainant to schedule two patient appointments that should have been scheduled by the assistants working in the primary care clinics; 10. on July 11, 2016, the Supervisor did not timely respond to Complainant’s sick leave request and charged her 15 minutes of AWOL; 11. on July 19-20, 2016, the Supervisor denied Complainant’s request to attend a VISN 16 CBO Site Visit training; 12. on July 22, 2016, the Supervisor charged Complainant 3 hours of AWOL even though she had enough annual leave available to cover the leave; 13. on July 22, 2016, the Supervisor contacted the Employee and Labor Relations Specialist (Specialist2) for the Chief of Staff about leave resulting in the Specialist2 explaining time and leave procedures to Complainant; 14. on May 17 through 20, 2016, the Supervisor charged Complainant AWOL; 15. on August 19, 2016, the Supervisor got on the elevator with Complainant, and while huffing and puffing, stared at Complainant in a hostile manner; 16. on August 30, 2016, the Business Manager demanded Complainant include him on emails sent to the Program Analyst and the Administrative Assistant; 17. on September 8-9, 2016, the Program Analyst charged Complainant AWOL, even though she was told by the Supervisory Assistant she could take annual leave in lieu of sick leave; 18. on September 19, 2016, the Supervisory Assistant sent Complainant an email regarding her leave balance and told her to stop harassing and bullying her; 19. from September 19 through October 14, 2016, the Program Analyst, the Specialist2, and the Supervisory Assistant called her at home while she was on doctor-ordered leave to discuss her return to work date; 2021004279 6 20. on September 29-30, 2016, the Program Analyst, the Specialist2, and the Supervisory Assistant called the complainant at home while she was on leave to discuss her leave balances, and to instruct her to complete OPM Form 71, even though she already submitted the form; 21. on October 4, 2016, Specialist2 instructed Complainant’s daughter to tell her to complete OPM Form 71, even though she already submitted the form; 22. on October 6, 2016, the Supervisory Assistant and Specialist2 told Complainant they did not have her completed OPM Form 71, even though she already submitted the form; 23. on July 24, 2016, HR Officer issued Complainant a memorandum informing her that her position was realigned under the Chief of Staff; 24. from September 19 through November 14, 2016, the Program Analyst charged Complainant AWOL in conjunction with her FMLA request; 25. on October 28, 2016, the Assistant Chief denied Complainant’s request for LWOP; 26. on November 3, 2016, the Program Analyst issued Complainant a letter ordering her to return to duty; 27. on November 15, 2016, the Program Analyst issued Complainant a letter stating that her absence from work was affecting employee morale, causing a hardship on the service, and threatened to terminate her; 28. on December 7, 2016, the Assistant Chief issued Complainant a Proposed Removal; 29. on December 23, 2016, the Assistant HR Officer denied Complainant’s leave without pay (LWOP) request for November 15-28, 2016; 30. beginning January 12, 2017, and ongoing, the Assistant Chief failed to provide Complainant with a copy of the SF-71 that she requested be completed on her behalf; 31. on January 27, 2017, Specialist2 sent Complainant an email informing her that her written response to her removal would be sent to the deciding official; 32. on March 30, 2016, the Supervisor included derogatory comments on Complainant’s mid-year performance appraisal; 33. on March 20, 2017, the Assistant HR Officer issued Complainant a letter disapproving her LWOP requests for the time period of December 12, 2016, through April 5, 2017; 2021004279 7 34. on March 21, 2017, the RA Coordinator issued Complainant a letter requesting she provide medical documentation related to her physician’s previously requested reasonable accommodation; 35. on March 21, 2017, the Chief of Staff reissued Complainant a Proposed Removal; 36. on December 5, 2016, the Chief of Staff designated the Assistant Chief to issue Complainant’s proposed removal, even though the Assistant Chief was not part of her chain of command; 37. on February 9, 2017, Specialist2 provided Complainant with the evidence file, and she discovered the Agency intentionally included false information to support her proposed removal; 38. on April 26, 2017, the Director issued Complainant a removal letter, effective May 6, 2017. After its investigation into Complaint2, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an AJ. Complainant was advised that her complaint was a mixed case and informed of her relevant hearing rights as to Complaint2, claim 38. Complainant timely requested a hearing on the non-mixed portion of Complaint2. Complainant’s hearing request was docketed under EEOC No. 490-2017-00162X. On June 1, 2017, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding Complaint 2, claim 38. On June 5, 2017, MSPB AJ dismissed this appeal without prejudice as it had been filed prematurely. Complainant later re-filed her MSPB appeal, which was dismissed without prejudice pending a decision on Complainant’s disability retirement. Complainant later filed again with the MSPB. Meanwhile, the Agency issued a final decision on December 27, 2017, pertaining to the removal action, finding that the removal was not motivated by discriminatory animus. Following a MSPB hearing, the MSPB AJ upheld the Agency’s removal. Upon receipt of this decision, Complainant filed a petition for review with the full Board of the MSPB. Consolidation of Complaints On March 12, 2020, the Supervisory Administrative Judge (Supervisory AJ) issued an Order denying Complainant’s motion to reinstate previously dismissed Complaint 1, claim 16. The Supervisory AJ also reframed the claims. Lastly, the Supervisory AJ consolidated Complaint1 and Complaint2 under EEOC No. 490-2016-00173X. The matter was assigned to the AJ. On February 22, 2021, the Agency submitted a Motion for Summary Judgment in the consolidated matter. The Agency argued that Complainant failed to put forward any evidence to support her contention that the events at issue were based on her protected classes of race, disability, and/or reprisal. Likewise, the Agency argued that Complainant offered no evidence to support a claim of pretext for the legitimate, non-discriminatory reasons provided by the Agency. 2021004279 8 Lastly, the Agency argued that the 66 separate events, taken individually, or as a whole, were neither severe nor pervasive enough to create a work environment that a reasonable person would find objectively hostile or abusive. The Agency requested that summary judgement in its favor be granted. On May 21, 2021, the Agency submitted a Motion to Dismiss Complaint2, claim 38. The Agency argued that Complainant was not entitled to a hearing before the EEOC AJ on her removal claim. The Agency asserted that the claim should be dismissed as the issue was decided by the Agency in a final decision on December 27, 2017. Based on the record, the Agency requested that the AJ dismiss Complaint2, claim 38, pursuant to 29 C.F.R § 1614.107(a)(1). On June 24, 2021, the AJ issued their decision without a hearing. In their decision, the AJ provided a detailed breakdown citing to the record regarding the claims of disparate treatment and harassment. The AJ granted the Agency’s motion to dismiss Complaint2, claim 38. Further, the AJ noted that in Complaint1, claim 22, Complainant alleged an improper medical disclosure in violation of the Rehabilitation Act. The AJ stated that the Commission regards documentation or information about an individual’s diagnosis or symptoms as confidential medical information. See Becki P. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019004451 (Sept. 29, 2020). If comments made are deemed confidential medical information, improper disclosure would constitute a violation. Id. A casual comment, however, may not be a violation. Id. In Coley v. Department of Transportation ̧EEOC Appeal No. 0120101294 (July 22, 2010), the Commission found that it was not a violation when an agency attorney disclosed to a third party stating that the attorney had empathy for the complainant “because of her personal and mental health history.” Id. The Commission held that that statement in Coley did not concern Complainant’s diagnosis nor constitute medical information within the purview of the Rehabilitation Act. Id. Similarly, in Complaint 1, claim 22, the AJ determined that the Supervisor’s statement as alleged herein neither concerned Complainant’s diagnosis nor constituted medical information within the purview of the Rehabilitation Act. Therefore, upon review of each of the 66 claims alleged, the AJ concluded that Complainant failed to show that she was subjected to discrimination as alleged. On June 30, 2021, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not provide an appellate response. In response to the appeal, the Agency asserts Complainant failed to meet the burden of proof, below or on appeal, with respect to her claim of harassment and discrimination based on race and reprisal. The Agency requests that the Commission affirm its final decision adopting the AJ’s finding of no discrimination, and dismissal of Complaint 2, claim 38. 2021004279 9 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. We note that despite given the opportunity to do so, Complainant did not submit an appellate brief supporting her appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. We note that the record in this case is exhaustive, containing two reports of investigations detailing each claim raised. Upon careful review of the AJ’s decision and the evidence of record, as well as the arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021004279 10 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). 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. 2021004279 11 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 January 26, 2023 Date