[Redacted], Evelyn M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020001374 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Evelyn M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001374 Hearing No. 480-2018-00304X Agency No. 200P-0664-2017102312 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 22, 2019 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant worked as a Nurse Recruiter, VN-3, at the Agency’s Medical Center in San Diego, California. On June 28, 2017, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her on the basis of age (64) when: 1. Her position was realigned and certain functions and responsibilities were taken away from her; 2. She was placed in pay retention status after moving from the Administrative Nursing salary schedule to the Registered Nursing (RN) salary schedule; and 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. 2020001374 2 3. She was subjected to a hostile work environment as evidenced by the following incidents: a. On unspecified dates, she experienced difficulty scheduling meetings with the Nursing Executive (NX); b. On unspecified dates in December 2016, NX instructed her to use mail for RMS requests rather than a recurring meeting; c. On January 20, 2017, and several other dates, Complainant was unable to access the S-Drive; d. On an unspecified date in January 2017, Complainant learned from a coworker that NX had said that she talks to much; e. Complainant had not received a new functional statement from the Nurse Director (ND); and f. On an unspecified date between June and October 2017, NX confided in the Nurse Manager that she wanted to remove the “old guard” and bring in a new young team that she could develop. The Agency investigated the complaint and notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On July 9, 2018, the AJ assigned to the matter (AJ1) issued an Acknowledgement and Order that, among other things, included directions that discovery needed to be completed within 90 calendar days from the date of receipt of the order, unless the parties mutually agreed to extend the deadline. The Order also included the regulations specifying the sanctions that an AJ could impose for failure to follow her orders. In addition, it included a recitation of the circumstances under which an AJ could issue a decision on summary judgment without holding a hearing. The certificate of service stated that it would be presumed that the parties received the Order within five calendar days after the date it was sent via email, and that the Order was sent via email on July 9, 2018 to Complainant’s work email address. On October 15, 2018, Complainant, through her attorney, filed a motion for sanctions requesting that a default judgment be entered against the Agency. In her motion, she cited what she characterized as multiple deficiencies in the conduct of the investigation and of the investigative record itself. Among her assertions: an assistant in the EEO Office deceived the investigator; that the investigator failed to question numerous witnesses; that the investigative report was improperly redacted; and that the Agency’s counsel objected to extending the discovery deadline knowing that she did not receive a copy of the Acknowledgment and Order until August 31, 2018. 2020001374 3 On November 16, 2018, the case was reassigned to a new AJ (AJ2). That same day, AJ2 issued the notice of assignment and an Order denying Complainant’s motion for sanctions and denying her motion to extend the discovery deadline. As to the sanctions Order, the AJ stated: Complainant states in her motion that the Agency received her formal complaint via email on June 29, 2017. She further states that the Agency provided her with a copy of the investigative file on January 4, 2018. The 180th day following the filing of the complaint was December 26, 2017. Based on these representations, Complainant argues that the Agency violated 29 C.F.R. § 1614.108(f) because it did not provide her with a copy of the investigative file within 180 days of the filing of the complaint. Complainant’s motion omits the following critical facts. On November 6, 2017, the investigator sent an email to Complainant asking her if she would agree to a 30-day extension of the investigation deadline because of anticipated delays related to the approaching holidays. Complainant sent an email the same day stating that she agreed. The investigator responded with an email asking Complainant to specifically state that she agreed to a 30-day extension. Complainant confirmed that she agreed. Investigative File, pp. 103-104. *** I find that the email exchange constituted a written agreement for a voluntary extension within the meaning of § 1614.108(e). The failure of Complainant’s counsel to identify or address the November 6, 2017 extension in the instant Motion is troubling. [A]ll the emails addressing the extension are included in the investigative file. Moreover, they are included in bookmarked Tab 3-3 which is entitled “3-3 Request for 30-day Extension of Investigative Period.” The instant motion contains literally dozens of citations to the file. Therefore, it is exceedingly unlikely that counsel’s failure to identify or address the emails regarding the 30-day extension that are clearly identified in the Investigative File was an oversight or excusable neglect. The most likely explanation for the omission from the instant motion of the critical fact of the emails discussing the extension is that Complainant’s counsel deliberately attempted to mislead the Commission and/or submitted an argument that counsel knew had no merit. The attempt by Complainant’s counsel to mislead the Commission is sufficient grounds to deny the entirety of Complainant’s motion for sanctions. Even if it were not sufficient, Complainant’s motion fails to identify any grounds sufficient to sanction the Agency for reasons related to its investigation of the instant complaint or related to the conduct of Agency counsel. Accordingly, Complainant’s motion for sanctions is denied. AJ2 also denied Complainant’s motion to extend the discovery deadline by 30 days, which Complainant had filed on September 26, 2018: 2020001374 4 The certificate of service attached to [AJ1’s Acknowledgement and Order dated July 9, 2018] was served on Complainant via email addressed to [her work email address]. However, Complaint had retired prior to July 2018. That address was her former work email. Complainant’s motion includes a representation from Complainant’s counsel that Complainant did not receive a copy of the Order until August 31, 2018, when she requested a copy in an email she sent on that date to an EEOC administrative support employee. The motion does not include a copy of the August 31, 2018 email. *** The Agency states that Complainant served her discovery requests on September 20, 2018. However, the Agency attached to its opposition a copy of an email that Complainant sent to Agency counsel on August 30, 2018. The email states, “My understanding of our instructions *** required that both parties submit/exchange settlement proposals within 30 days of receipt of instructions (received email 8/4/18).” The Agency argues that the “instructions” refers to instructions set forth in the Acknowledgment and Order and that the email acknowledges that Complainant received such instructions via email on August 4, 2018. Complainant’s motion does not address the August 4 email. Specifically, Complainant does not explain how she knew of the instructions set forth in the Acknowledgment and Order requiring the parties to exchange settlement proposals within 30 days of receipt if she had not yet received the Order. In determining the factual basis for Complainant’s motion, I am taking into account that the motion does not include any corroboration of the representation of Complainant’s counsel that Complaint sent the August 31, 2018 email or that Complainant did not receive the Acknowledgement and Order until that date. I find that Complainant has not established by a preponderance of the evidence that she did not receive the Acknowledgement and Order until August 31, 2018. Accordingly, Complainant’s motion to extend the discovery deadline is hereby denied. On February 28, 2019, the Agency filed a motion for summary judgment. On June 17, 2019, a second notice of reassignment was issued informing the parties that the case had been reassigned from AJ2 to a new AJ (AJ3). On October 2, 2019, AJ3 granted the Agency’s motion for summary judgment. AJ3 reaffirmed AJ2’s denial of Complainant’s motion to extend the discovery period, finding that Agency presented unrebutted evidence that Complainant received the Acknowledgment and Order prior to August 31, 2018 and that Complainant failed to notify the Agency of her new email addressed after she retired from her job. AJ3’s Decision (October 2, 2019), pp. 10-12. On the merits of Complainant’s complaint, the AJ found that the Agency had articulated legitimate and nondiscriminatory reasons for its actions that Complainant failed to show were pretext for age discrimination. AJ3’s Decision, pp. 13-20. As to Complainant’s hostile work 2020001374 5 environment claim, AJ3 found that the incidents comprising her claim were neither sufficiently severe or pervasive enough to rise to the level of actionable harassment nor motivated by unlawful considerations of Complainant’s age. AJ3 Decision, pp. 20-23. With regard to incident 3(f), the age-related remarks allegedly made by NX, AJ3 found that the comments did not refer to Complainant and were too remote and ambiguous to link unrelated incidents to a discriminatory motive. AJ3 Decision, p. 20. Accordingly, AJ3 found that Complainant was not subjected to discrimination as alleged. AJ3 did not address AJ2’s decision to deny imposing sanctions upon the Agency in connection with its conduct of the investigation or its preparation of the investigative report. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s motion for summary judgment should have been denied because it was defective on its face. Complainant also reiterates that she was prevented from engaging in discovery and that the denial of her motion to extend discovery by AJ2 and AJ3 constituted an abuse of discretion on the part of these Administrative Judges. Finally, Complainant maintains that AJ2 abused his discretion in declining to issue a default judgment against the Agency. She also contests AJ3’s summary judgment finding on the merits. The Agency responded that it met its burden to articulate legitimate and nondiscriminatory reasons for its actions that Complainant failed to demonstrate were pretextual. ANALYSIS AND FINDINGS Complainant’s Request for Sanctions The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant’s hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with his orders. Id. When the complainant fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances: (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; (iv) Issue a decision fully or partially in favor of the opposing party; or (v) Take such other actions as appropriate. 29 C.F.R. § 1614.109(f)(3). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable 2020001374 6 remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non- complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. A default judgment against an agency is among the harshest sanctions that can be meted out. For that reason, the default judgment should only be imposed upon agencies that directly defy Commission orders and whose actions adversely impacted the conduct of the hearing. Such a situation had occurred in Chere S., supra. In that case, the AJ ordered the agency to stop filing frivolous motions to dismiss the complaint on procedural grounds and made it very clear that the agency would be subject to sanctions if it continued to file such motions. Despite the AJ’s warning, the agency in Chere S. went ahead and filed another motion to dismiss in direct defiance of the AJ’s order for the agency to engage with the complainant in order to resolve the case. The Commission agreed with the AJ that the sanction of default judgment was warranted because the agency had repeatedly delayed the start of the hearing due to its repeated unsuccessful attempts to have the complaint dismissed on procedural grounds knowing that the likelihood of success on those motions was nil. The AJ also pointed out that the agency’s conduct had the adverse effect of bottlenecking the administrative process, which in turn impacted on the ability to hear other pending cases. Chere S. thus stands for the proposition that default judgment may be imposed upon an agency that deliberately disobeys an order from the AJ and that disobedience adversely impacts the conduct of the hearing or undermines the integrity of the administrative EEO process. Such circumstances were clearly absent in a more recently issued decision, Salvatore B. v. Dep’t of Agriculture, EEOC Appeal No. 2019005314 (Mar. 5, 2021). In this case, the complainant requested that a default judgment be entered against the agency for issuing, among other things, an untimely final decision. We found that it took the agency 398 days to issue a final decision from the date it had completed a supplemental investigation, and when it finally did issue that decision, it failed to address claims raised in an amendment to the complaint. It took the agency another seven months to issue its second decision addressing those claims. Nevertheless, the Commission concluded that despite the fact that the delay extended over a year, it would not impose the sanction of a default judgment because the complainant failed to show that he had been prejudiced by the delay or that the delay was unconscionable. In the case now before us, Complainant sought a default judgment based upon her assertions that the investigation and the investigatory report were inadequate. Both her motion for default judgment and her appeal brief cite dozens of minute points throughout the record in support of her contention that a default judgment was warranted. She also argues that the investigative report was issued eight days late. However, Complainant does not address AJ2’s finding that her 2020001374 7 counsel had omitted discussion of the investigator’s request for a 30-day extension of the investigatory time frame, and that Complainant had agreed to that extension. Complainant thus does not address the central issue in AJ2’s denial of her motion for default judgment, namely what AJ2 characterizes as an attempt by her counsel to mislead the Commission regarding the tardiness of the investigative report. Moreover, despite her extensive citations to what she characterizes as the investigative report’s shortcomings, she has not identified anything in the report that tends to raise a genuine issue of material fact as to the issues in her complaint. Complainant has likewise presented no evidence tending to show that the Agency disobeyed Commission orders in a way that adversely impacted the conduct of the proceeding or the integrity of the process, circumstances that were clearly present in Chere S. but absent in Salvatore B. We therefore find no abuse of discretion on the part of AJ2 in denying Complainant’s motion for a default judgment against the Agency. Denial of Discovery Extension Requests Next, Complainant argues that AJ2’s and AJ3’s denial of her discovery requests constitutes an abuse of discretion. As discussed above, AJs have broad discretion in the conduct of hearings, including discovery and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Ch. 7 (Aug. 5, 2015). Here, Complainant claimed that she did not receive the Acknowledgment and Order until August 31, 2018 and requested that the discovery period be extended. The record reveals that Complainant failed to inform the Commission or the Agency of her new email address following her retirement; however, the AJs noted that Complainant was not forthright about an email indicating that she received AJ2’s July 9, 2018 Acknowledgment and Order much earlier than August 31, 2018. Complainant’s motion to extend the discovery time frame did not address that email. Premising her request for a discovery extension upon a materially false statement is quite substantial, and a grant of the motion would have needlessly extended an already drawn-out process. The Commission has reviewed the record and finds no abuse of discretion by the AJs. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJs managed this case. Summary Judgment on the Merits 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 2020001374 8 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. (as revised, August 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to affirm the final Agency order. We agree with the AJ that the record establishes that, even assuming arguendo, Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext. In particular, with respect to the realignment of her duties, NX conducted a review of Nursing Services upon entering duty at the facility and decided to realign many employees, including Complainant. NX and other officials confirmed that the realignment allowed Complainant to focus on her primary recruitment duties, to address staffing issues, to prioritize a project that needed immediate attention, and to address inefficiencies. In addition, regarding the change to Complainant’s pay schedule, a Human Resources Specialist determined in August 2014 that some employees, including Complainant, were being incorrectly paid on the Administrative Nurse schedule. In October 2016, officials decided to place Complainant on the proper RN schedule, but after NX expressed concern about the effects to Complainant, Human Resources allowed Complainant to be placed on pay retention without any attempts to recoup any prior overpayment. NX noted that all employees under the incorrect pay schedule were moved as well. We also agree with the AJ that the record establishes that Complainant failed to demonstrate that the incidents complained of in this complaint were severe or pervasive enough to establish a hostile work environment. Accordingly, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. As a result, the Agency's final order adopting the AJ’s decision is AFFIRMED. 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 2020001374 9 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). 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. 2020001374 10 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation