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

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2022000119 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janeen S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000119 Hearing No. 451-2018-00274X Agency No. 2003-0671-2018100747 DECISION Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 13, 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., 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. At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, at the South Texas Veteran’s Health Care Systems in the Office of the Chief of Staff in San Antonio, Texas. Complainant retired from the Agency on October 31, 2017. On March 1, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability, age (69), and in reprisal for protected EEO activity: 1. In February 2017, the Chief of Staff for Mental Health asked Complainant when she was going to retire in a mean and sarcastic tone. 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. 2022000119 2 2. On June 26, 2017, the Chief of Staff blamed Complainant for questions she was unable to answer during an ongoing professional practice evaluation (OPPE) conducted by the Office of the Inspector General. 3. On July 12, 2017, the Chief of Staff requested that Complainant meet with her without Complainant’s attorney present. 4. On October 2, 2017, Coworker A blocked Complainant’s path when she exited the room. 5. On September 19, 2017, the Chief of Staff issued Complainant a reprimand. 6. On October 5, 2017, Coworker A yelled at Complainant. 7. From October 5 and 6, 2017, the Chief of Staff charged Complainant Absence Without Leave (AWOL). 8. On October 26, 2017, the Chief of Staff threatened to move Complainant to another office. The Agency issued a Notice of Partial Acceptance dismissing claim (5) as an untimely raised discrete action. The Agency accepted claim (7) as a timely raised discrete action. The Agency found claims (5) and (7) would be considered as part of Complainant’s overall harassment claim.2 At the conclusion of the investigation, 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 requested a hearing. The Agency filed a motion for summary judgment. Complainant filed a response and the Agency filed a reply. The AJ issued summary judgment in favor of the Agency. The AJ noted Complainant did not show any of the alleged acts were based on any statutorily protected class. Further, the AJ found that Complainant did not show that the alleged acts of harassment were so severe or pervasive so as to rise to the level of a hostile work environment. Regarding her claim of disability discrimination, the AJ found that Complainant did not demonstrate that she is a qualified individual with a disability entitled to protection under the applicable statutes. Moreover, the AJ found that when viewing the evidence in the light most favorable to Complainant, the record shows that Complainant has offered no evidence to support a finding that the Agency’s articulated reasons for its actions are a pretext for discrimination. 2 On appeal, Complainant does not challenge the Agency’s dismissal of claim (5) as an untimely discrete action. Thus, we do not address the dismissal of claim (5) in our decision. 2022000119 3 The Agency subsequently issued a final order fully implementing 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). At the outset, we note that Complainant does not challenge the framing of the accepted claims. Further, we find the record in the present case fully developed. 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 Complainant did not clearly identify any disability let alone show she had such a disability. Furthermore, Complainant did not show she had EEO activity prior to contacting an EEO Counselor for this complaint. Regarding the AWOL, the Agency asserted that Complainant did not submit any request for leave to her supervisor prior to her absence and she was therefore placed on AWOL. Complainant has not pointed to any evidence that shows that the supervisor was made aware of a request for leave before the Supervisor placed on her AWOL and Complainant has not shown that similarly situated people were not placed on AWOL under similar circumstances. Further, there is no indication that the decision to place Complainant on AWOL was motivated by discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant and even if we found she established she was disabled and had engaged in prior EEO activity, a reasonable fact-finder 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 fully implementing the AJ’s decision finding no discrimination. 2022000119 4 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. 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. 2022000119 5 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 March 23, 2022 Date