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

Equal Employment Opportunity Commission

Nov 17, 2021

Appeal No. 2021001324 (E.E.O.C. Nov. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgeann R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001324 Hearing No. 450-2018-00207X Agency No. 2003-0674-2017102617 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 14, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Health Benefits Advisor at the Agency’s Eligibility and Enrollment Section, Central Texas Veterans Health Care System in Austin, Texas. On or about February 27, 2017, according to Complainant, her first-line supervisor (S1) instructed Complainant’s coworkers to watch her and write reports about her. Report of Investigation (ROI) at 88. Complainant stated that on March 24, 2017, S1 sent an email seeking to hold a meeting regarding reports of contact by two of Complainant’s coworkers. 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. 2021001324 2 Despite efforts by Complainant and her union representative, Complainant stated that S1 refused to provide a date for the meeting. ROI at 92-3. Since March 24, 2017, asserted Complainant, S1 isolated her and did not allow her to serve veterans. She was placed in the back of the medical center and was not permitted to return to her department, contended Complainant. ROI at 97. On March 27, 2017, Complainant filed a report of contact alleging sexual harassment by a coworker (CW1). Specifically, Complainant reported that, on February 27, 2017, CW1 kissed her on the mouth and asked that she raise her dress. Complainant asked to be relocated to an area where she would feel safe. ROI at 150-2. In response, S1 temporarily relocated Complainant, on March 30, 2017, pending an investigation into her allegations. ROI at 143. The following day, CW1’s supervisor issued CW1 a memorandum and instructed him to have no contact with Complainant and remain at his current workstation until the allegations were investigated and resolved. ROI at 144. Complainant asserted that on April 24, 2017, CW1 improperly accessed her medical records. ROI at 100-1. On May 1, 2017, Complainant was served a notice of her termination during her probationary period, effective May 18, 2017. ROI at 108. On May 9, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment (sexual and non-sexual) on the bases of race (African American), sex (female), disability (learning disability, dyslexia, and post-traumatic stress disorder) and age (59), and in reprisal for prior protected EEO activity (reporting sexual harassment), when: 1. on February 27, 2017, CW1 kissed Complainant on her mouth and then later asked her to lift up her dress; 2. on or about February 27, 2017, S1 instructed employees to watch Complainant and write reports about her; 3. on March 24, 2017, S1 sent Complainant a “threatening” email and initiated an investigation to gather evidence against her; 4. since March 24, 2017, S1 isolated Complainant and did not allow her to serve veteran patients; 5. in April 2017, coworkers accessed Complainant’s medical records; and 6. on May 18, 2017, S1 terminated Complainant during her probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On October 13, 2020, the AJ issued a Notice of Proposed Summary Judgment. Complainant and the Agency filed their responses in a timely manner. 2021001324 3 On December 3, 2020, the AJ issued a decision without a hearing. The AJ found that, with respect to Complainant’s sexual harassment claim, the Agency took immediate and appropriate corrective action as soon as it was put on notice of the harassing behavior and, as a result, there was no basis for imputing liability. Regarding claims 2-5, the AJ determined that the claims appeared to be based, not on evidence, but on presumption and speculation. The AJ noted that the Commission has consistently stated that statements of belief, no matter how genuinely held, are not proof and cannot withstand legal scrutiny. With respect to Complainant’s termination during her probationary period, claim 6, the AJ concluded that the action was justified. Specifically, the AJ noted that Complainant was absent without informing her supervisor of her whereabouts, failed to report for the start of her shift, and was the subject of two investigations related to coworker allegations. The AJ found that Complainant offered no evidence to show that the Agency’s articulated reasons for its actions were a pretext for discrimination. The AJ concluded that summary judgment in favor of the Agency was appropriate. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On January 19, 2021, four days after the expiration of the time limit for submitting an appeal brief, Complainant requested an extension to file her brief due to unforeseen circumstances. Despite the Commission’s denial, on January 29, 2021, Complainant uploaded her appeal brief. Additionally, on February 3, 2021, Complainant reiterated her request for an extension due to “future unforeseen circumstances appear to have possibly impeded the completion of the document.”2 On February 9, 2020, the Agency filed an opposition brief and requested that the Commission affirm its final order. STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment 2 Due to the untimeliness of her submission, the Commission declines to consider Complainant’s arguments on appeal. 2021001324 4 discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS Decision without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has failed to reveal any disputes of material fact. Therefore, we find that the AJ’s issuance of a decision without a hearing was appropriate. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had 2021001324 5 the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Sexual harassment We find that Complainant belongs to a protected class based on her sex. With respect to the second element, CW1 denied kissing Complainant or asking her to lift her dress. ROI at 134. However, even crediting Complainant’s version of events and assuming that CW1’s actions created a hostile work environment based on Complainant’s sex, we find that there is no basis for imputing liability on the Agency because it took immediate and corrective action. In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep’t of the Air Force, EEOC Request No. 05920194 (July 8, 1992). In this case, the record shows that S1 immediately moved Complainant after she learned of the allegations, pursuant to Complainant’s request. Moreover, CW1’s supervisor instructed CW1 to remain in his workstation and not contact Complainant. We note that Complainant did not report any further incidents of sexual harassment. The Agency’s actions were immediate and effective. As such, we find that Complainant did not establish that the Agency subjected her to unlawful sexual harassment. Non-sexual harassment We find that Complainant belongs to protected classes based on her age, disability, race, sex, and prior protected EEO activity. However, there is no evidence that the conduct occurred as described by Complainant. Regarding claim 2, S1 denied asking Complainant’s coworkers to watch and report on her. Rather, S1 stated that employees consistently raised concerns, so she instructed them to email their concerns so that she could properly address them. ROI at 123. While Complainant stated that another coworker (CW2) informed her that S1 directed CW2 to write a report of contact on her interactions with Complainant, CW2 attested that S1 did not instruct her to watch Complainant or write reports. ROI at 88-9, 140-1. Regarding incident 3, S1 explained that she probably sent several emails that day and denied that any were “threatening.” ROI at 123. Complainant did not provide a copy of the email, so there is no supportive evidence that she was threatened by S1 in the correspondence. 2021001324 6 We also note that the request to meet with Complainant, to discuss concerns raised by coworkers, was within S1’s supervisory responsibilities. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no evidence that S1’s email requesting a meeting with Complainant was abusive or offensive, and meant to harass her based on a protected class. As for claim 4, S1 denied isolating Complainant or prohibiting her from serving veterans. S1 stated that, prior to March 30, 2017, Complainant worked at the front desk and had personal interactions with veterans. After Complainant’s report of sexual harassment and request to be relocated, she was moved. Consequently, it was impossible for her to continue to conduct front desk duties, but she was still expected to answer telephone calls from veterans. ROI at 125. We also find that there is no evidence that any of the alleged harassment was based on a protected basis. Accordingly, we find that Complainant did not establish that the Agency subjected her to non-sexual harassment based on her age, disability, race or sex, or in reprisal for prior protected EEO activity. Disclosure of Medical Information Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Complainant alleges, in claim 5, that coworkers accessed her medical records. CW1, whose duties included providing travel assistance, attested that Complainant instructed him to access her medical records to determine if one of her appointments could be considered service- connected for purposes of travel reimbursement. According to CW1, Complainant did not have an appointment and a travel reimbursement could not be processed. ROI at 136. We note that it is not clear what information was contained in the “medical records” accessed by CW1. When asked to describe the records, Complainant responded, “[t]he specific records accessed can be described and identified by the privacy officer located in the Temple Texas Va.” ROI at 101. CW1 did not claim to see any information containing Complainant’s medical condition or history. 2021001324 7 Additionally, Complainant alleged that another coworker accessed her medical records because she was “being nosey” and wanted to find information about Complainant’s health, but there is no evidence to support Complainant’s assertion. ROI at 102. Accordingly, we find that Complainant did not establish any improper disclosure of confidential medical information. 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). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, we find that the Agency proffered legitimate, nondiscriminatory reasons regarding its actions in claim 6. S1 stated that she recommended Complainant’s termination because Complainant, after attending three days of orientation, left and failed to report to work or call for a couple of days. S1 also stated that, despite extensive training, Complainant was not able to perform the basic functions of her position, such as navigating the eligibility screens of the system. ROI at 129. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2021001324 8 Complainant did not provide any evidence to show that S1’s reasons were not worthy of belief. Further, she only made bare assertions that management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, race or sex, or in reprisal for prior protected EEO activity, when it terminated her employment during her probationary period. 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 order adopting the AJ’s decision without a hearing finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021001324 9 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 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 November 17, 2021 Date