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

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020002552 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fae P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002552 Agency No. 2001-0614-2017100642 DECISION On February 27, 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 January 29, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid, WG-3566-02, at the Agency’s VA Medical Center's Environmental Management Service facility in Memphis, Tennessee. On January 19, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and/or discrimination on the bases of sex (female), disability and age when: 1. During a meeting on November 9, 2016, her first line supervisor (S1) "threatened and intimidated" her when he "dehumanized" her and told her she was "unable to do anything." 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. 2020002552 2 2. On November 14, 2016, S1 reassigned her to a location which made her feel "less than a whole person with nothing to do." 3. S1 "constantly" told her she "needs to move faster" and that her "cleaning is unacceptable." 4. S1 repeatedly told her he "doesn't care" if she has a disability. 5. S1 has repeatedly threatened to disapprove her leave if she did not fill out the request "right then and now." 6. S1 has emphasized to her that she "needs to go home, retire, and fill out Social Security benefits." The Agency accepted claim (2) as an independently actionable claim and accepted the overall harassment claim. The Agency conducted an investigation, which produced the following pertinent facts: Regarding her alleged basis of disability, Complainant attested that she was diagnosed with cerebral palsy at birth. She attested that the condition does not affect her major life activities and she does not use any assistive devices. She also attested that she injured her shoulder at work. She attested that she had disability-related work restrictions in that she only does “low dusting” and does not do “high dusting.” She also indicated that she was on light duty. S1 and the Assistant Chief, Environmental Services (S2) attested that they were aware of Complainant’s disability. The Housekeeping Aid Supervisor (S3) attested that she was unaware of Complainant’s disability. In claim (1), Complainant alleged that, during a meeting on November 9, 2016, S1 threatened and intimidated her when he dehumanized her and told her she was unable to do anything. She attested that S1 demanded that she sign some leave papers that she felt uncomfortable signing and, when she asked if she could go to her locker to get her papers, S1 denied her request and told her she had to sight the papers as they were. Complainant attested that S1 got up from his desk, walked around, got in her personal space and in her face and told her that he was the supervisor and she does what he says. She alleged that S1 told her that he did not care about her disability and she does what he says, “or else.” She attested that he pointed at her and made her feel dehumanized and like she was not worth anything. She attested that, when she told S1 she felt threatened by this conversation, he told her he did not care how she felt. Complainant further attested to S1’s allegedly threatening behavior. She attested that there were times he would see her in the hallway and would accuse her of not doing anything, telling her she needed to go home because her performance is not up to their standards, and he did not care if she was on light duty. She attested that this kept her from getting promotions because S1 made comments that she could not do her job, which meant she could not receive an outstanding rating on her performance evaluation and kept her from getting a higher salary. She also alleged that, when she came to work, she felt scared, threatened, and constantly watched. She attested that she reported the matter to management and, as a result, she was moved to another area. 2020002552 3 S1 attested that, although Complainant had been on his time and leave sheet, he did not have a working relationship with her because she had not been reporting to him until S2 told him that he needed to have her report to him. S1 attested that, prior to S2 coming on board, Complainant would just call the secretary and let her know that she was at work, but S2 instructed him to make sure Complainant checks in and to give her assignments. S1 attested that, after he was told to have Complainant report to him, he paged her to his office and informed her that, going forward, she needs to check with him in the morning when she comes in, so that he can give her an assignment and know where she is throughout the day. He attested that Complainant’s response was that she said “okay.” S1 denied Complainant’s allegations that he was threatening and said she was unable to do anything. S2 attested that he was not aware of the conversation at issue. However, he attested that S1 reported to him that he was having difficulties with Complainant and, therefore, he had her removed from under his supervision. In claim (2), Complainant alleged that, on November 14, 2016, S1 reassigned her to the Women’s Center, which made her feel less than a whole person with nothing to do. She attested that her reassignment was in a secluded area that made her feel like she was in a box. She attested that she felt like she was being punished for something that she did not do, nobody listened to her, and management did not care. She attested that it felt like a jail or prison. Complainant acknowledged that she was performing the same duties in her reassignment as she was performing in her prior assignment, which were dusting and wiping things down. However, she attested that she found the reassignment unacceptable because it was not what she was used to doing and there was no job advancement from this position. She attested that she spoke to S2 about it and he told her to do whatever S3 told her to do. She attested that she did not discuss the matter with S3. S2 attested that he reassigned Complainant to work under S3 at the Women’s Center after S1 reported difficulties working with Complainant. S2 attested that, because Complainant had problems with her hands, she was unable to hold a broom, mop, or lift. S2 attested that, upon reassignment, Complainant was doing low dusting, as she had been in her prior assignment. S2 attested that previously, Complainant did not have a direct supervisor and she would call the service secretary to let her know her whereabouts and, for years, she had been allowed to come and go and do what she wants. He explained that, previously, they did not know when she was there and that is why she was told to check in with her supervisor. S3 attested that Complainant was performing the same duties at the Women’s Center as she had been in her previous assignment and was doing well. 2020002552 4 In claim (3), Complainant alleged that S1 constantly told her she needed to move faster and that her cleaning was unacceptable. She attested that she could only do low cleaning and dusting and that was unacceptable to S1, as he wanted her to be on ladders, do high dusting, mop, clean the vents in the ceilings, and do the elevators, all of which she could not do because of her disability. S1 denied these allegations. In claim (4), Complainant alleged that S1 repeatedly told her he doesn't care if she has a disability. She attested that S1 gave her a new assignment including getting on ladders and cleaning and dusting high windows and cleaning elevators and told her that if she did not do these things, she needed to go home. She attested that he constant told her that he did not care about her disability and she was there to do what he told her to do regardless of her disability. S1 denied these allegations. In claim (5), Complainant alleged that S1 has repeatedly threatened her with the disapproval of leave if she does not fill out the request “right then and now.” She attested that, when she was called into S1’s office to fill out leave paperwork, S1 told her that he wanted her to sign a paper for her leave, vacation time, and time she wanted off. She attested that she asked if she could have a moment to go to her locker and get her papers and see what days she had on her list and he told her, “just because [she has] a handicap don’t mean [she] get special treatment.” She attested that he told her to sign the papers right now and do what he told her to do. She attested that she felt threatened that she would not get leave if she did not sign it. S1 attested that he asked Complainant to choose four weeks when she wanted to go on vacation and she refused, stating that she needed to be able to go when she wanted to go. He explained that all employees were required to put in an annual leave forecast to ensure there would be sufficient staffing during vacation season. He attested that he explained to her that everyone had to do this, and she responded that she was not going to do it right now. He denied telling her that she could not go to her locker and threatening her. In claim (6), Complainant alleged that S1 has told her that she needs to go home, retire, and fill out Social Security benefits. She attested that, while she was working, S1 would watch her cleaning and would ask her what she was doing and tell her that she should go home because she could not do what he told her to do. She attested that he told her that what she was doing was “low and unacceptable work” so he was going to send her to the office to fill out paperwork for social security, so she could go home and sit down. She alleged S1 made remarks such as she was not doing her job well and her movement was not too great. She alleged that he told her that she could go home and draw disability. S1 denied these allegations. 2020002552 5 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 requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ’s Order to Produce Information. The AJ remanded the complaint to the Agency and the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(6). Complainant appealed the dismissal to the Commission. The Commission reversed the Agency’s dismissal and remanded the complaint to the Agency for the issuance of a final decision. 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. On appeal, Complainant submits statements from three Agency employees in support of her complaint. In response, the Agency argues that Complainant’s new evidence should not be considered on appeal and argues that the Commission should uphold its final decision. ANALYSIS AND FINDINGS Standard of Review 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”). Harassment Claim To establish a claim of hostile environment harassment, a 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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020002552 6 In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, her age, disability, or sex. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations reflect fundamental disagreements over how she should be supervised and disagreements with managerial decisions regarding reassignments, duties, and leave. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, with respect to Complainant’s allegations that S1 spoke to her in a way that was dehumanizing, insulting, or otherwise unpleasant, we find these allegations are insufficiently severe or pervasive to have altered the conditions of Complainant's employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). We have reviewed the record and, while S1 may have exhibited poor communication and/or managerial skills, it does not establish that that the Agency’s actions were because of her age, disability, and/or sex. Therefore, we find Complainant's allegations are insufficient to support her claim of discriminatory harassment. Disparate Treatment Claim A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep't of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020002552 7 Complainant's allegations in claim (2) regarding her reassignment give rise to a claim of disparate treatment. However, even if we assume arguendo that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant was reassigned because of the difficulties in the working relationship between Complainant and S1. We note that Complainant’s duties were not changed by the reassignment. Although Complainant has alleged discrimination, she has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. 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. 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. 2020002552 8 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. 2020002552 9 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 August 16, 2021 Date