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

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 2020003149 (E.E.O.C. Apr. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Golden L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003149 Hearing No. 420-2017-00328X Agency No. 200I-0619-2017101381 DECISION On April 7, 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 March 9, 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. 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Social Worker, GS-0185-12, at the Tuskegee VA Medical Center in Tuskegee, Alabama. On February 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), color (brown), and disability (posttraumatic stress disorder). Complainant subsequently filed amendments to her formal complaint. She ultimately raised a total of 21 claims consisting of the following allegations of discrimination: 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. 2020003149 2 1. At least once a month since the fall of 2015, and most recently in November 2016, Complainant overheard the former Social Work Service Chief (“Chief”) referring to herself as the “Queen of unsubstantiated EEO complaints”; 2. At least once a month since the fall of 2015, and most recently on June 28, 2016, the Chief made derogatory comments to Complainant’s subordinate employees and others about Complainant’s supervisory skills; 3. At least once a month since the fall of 2015, and most recently on June 28, 2016, the Chief made derogatory comments about Complainant’s military rank, i.e., “Lieutenant Colonel don’t mean shit, who the hell does she think she is and this is not the military, or words to that effect”; 4. In May 2016, Complainant was not selected for the position of Assistant Chief of Social Work Service, GS-13, Vacancy Number JU-16-HCB-1539; 5. On June 28, 2016, during a supervisory meeting, the Chief ridiculed Complainant about her disability, and the way she spoke, to the point where Complainant was in tears, and the Chief then told Complainant to go cry to her therapist; 6. On June 28, 2016, instead of intervening while Complainant was being ridiculed by the Chief, the Assistant Chief of Social Work (“Assistant Chief”) giggled, put her head on the desk, accused Complainant of starting the conflict with the Chief, and told Complainant to accept the way she was being treated by the Chief; 7. In July 2016, Complainant’s coworker made a threatening gesture towards Complainant and told Complainant that she was messing with the wrong person or words to that effect. Later, the same coworker was in Complainant’s personal space and began yelling at her; 8. On October 13, 2016, the Human Resources Specialist screamed at Complainant, called her a liar, stated that Complainant did not have integrity, threatened to have an employee file a harassment complaint against her and threatened to have Complainant investigated for ethics violations and more; 9. On October 13, 2016, Complainant’s treating psychiatrist instructed Complainant not to report for work; 10. On numerous occasions between October 13, 2016 to April 5, 2017, Complainant was forced to exhaust her leave balances and was forced to take Leave Without Pay; 11. On December 12, 2016, Complainant was stripped of all supervisory and program manager duties; 12. Effective December 12, 2016, Complainant was detailed to the Non-Veteran Community Care (“NVCC”) Unit; 13. On December 12, 2016, Complainant was told that she could not report to the NVCC Unit because the detail paperwork had not yet been received; 14. Since December 13, 2016, the Patient Care Associate Director has refused to meet with Complainant to discuss Complainant’s detail assignment; 15. Complainant was not allowed to report to the NVCC Unit until December 27, 2016; 16. As of January 25, 2017, the NVCC Chief had not received any official documentation regarding Complainant’s detail assignment; 17. On October 3, 2016, Complainant was subjected to a questionable formal factfinding investigation. Yet, when she requested information pertaining to the investigation 2020003149 3 under the Freedom of Information Act, she was advised that no such investigation occurred; 18. On March 21, 2017, Complainant was issued a memo instructing her to participate in another factfinding investigation; 19. Complainant was placed on Leave Without Pay and has not been paid since her return to work from extended medical leave on April 10, 2017, and continuing through but not limited to May 12, 2017; 20. Complainant was required to prove she was physically present at work during the period of April 10, 2017 through May 12, 2017; and 21. On or about May 24, 2017, instead of accepting Complainant’s proof of attendance during the period of April 10, 2017 through May 12, 2017, the Nurse who served as the Acting Chief of the NVCC requested the Information Technology Department to verify Complainant’s computer login for the same dates. The Agency subsequently accepted claims 11, 12, and 19 for investigation as independently actionable discrete acts. However, the Agency dismissed claims 4 and 9 pursuant to 29 C.F.R § 1614.107(a)(2) because the Agency determined that Complainant failed to timely raise these claims with an EEO Counselor.2 In dismissing claims 4 and 9 as discrete acts, the Agency advised Complainant that it would consider all 21 of her claims, including the dismissed claims, as part of Complainant’s overall hostile work environment claim. 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 timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 5, 2018, motion for a decision without a hearing and issued a decision without a hearing on February 27, 2020. 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. The instant appeal followed. 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. (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). 2 We note that Complainant, on appeal, did not challenge the Agency’s decision to procedurally dismiss claims 4 and 9. 2020003149 4 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 factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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. 2020003149 5 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 April 19, 2021 Date