[Redacted], Jayna A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 5, 2021Appeal No. 2020003811 (E.E.O.C. Aug. 5, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayna A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003811 Agency No. 200H-0630-2018103413 DECISION On June 2, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Program Support Assistant, GS-8, at the Agency’s Logistics Services, New York Harbor Health Care System (NYHHCS) at the New York Campus in Manhattan. On July 21, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity when: 1. On March 23, 2018, the Chief, Material Management. wrote a report of contact against Complainant with false information provided by a Chief’s family member, who works in VA Police Service, which included a recommendation that Complainant be suspended from weapons inspection/Police Inventory, no longer be granted overtime and that an incident of record be documented in her mid-year performance review. 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. 2020003811 2 2. On April 24, 2018, Complainant was permanently reassigned to the NY Harbor Manhattan campus. 3. On April 25, 2018, the Chief, Logistics charged Complainant with being Absent Without Leave (AWOL) despite her reliance on limited government transportation to the Manhattan campus. After the investigation of the claims,2 the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on March 12, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community 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 Center 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2 The record reflects that during the investigation, Complainant did not submit an affidavit. 2020003811 3 During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on March 23, 2018, the Chief, Material Management (female) wrote a report of contact against Complainant with false information provided by the Chief’s family member, who works in VA Police Service, which included a recommendation that Complainant be suspended from weapons inspection/Police Inventory, no longer be granted overtime and that the incident of record will be documented in her midyear performance review. The Chief explained that the Agency had a quarterly weapons inspection and a VISN audit. She noted that Complainant made several errors, for which the Agency was cited for, in the audit. The Chief stated that after meeting with Complainant, the Chief, Logistics, and the union president she agreed to dismiss the report of contact. In addition, the Chief noted that the report of contact was not noted on Complainant’s mid-year review, her overtime was not stopped, and the outcome was that Complainant was moved to the Manhattan location and report to the Chief, Logistics as her direct supervisor. Moreover, the Chief stated that management decided that the Weapons management would be solely managed by the highest-level Property Manager and herself. Complainant asserted that the Chief used a family member to have her removed from weapons inspection. The Chief, however, stated that the matter was not a personal action taken against Complainant, that Complainant’s accusations were false, and that she had conducted research and checked the inventory which revealed inconsistencies, causing her to write a report. Regarding claim 2, Complainant alleged that on April 24, 2018, Complainant was permanently reassigned to the NY Harbor Manhattan campus. The Chief stated that she was not responsible for Complainant being permanently reassigned to the NY Harbor Manhattan campus. Specifically, the Chief stated at that time Complainant was already removed from her supervision and the move was the result of a mediation and had Complainant’s agreement. Regarding claim 3, Complainant claimed that on April 25, 2018, the Chief, Logistics charged Complainant AWOL despite Complainant’s reliance on limited government transportation to the Manhattan campus. The Chief Logistics (male) stated that he became Complainant’s supervisor on April 24, 2018. He asserted that Complainant was not charged AWOL on April 25, 2018. Specifically, S1 stated that he explained to Complainant that if he does not know her location two hours after her expected arrival, Complainant would be counted as AWOL until she advises him otherwise. Moreover, he stated that there is a government shuttle that goes between the NY Manhattan campus and the Brooklyn campus multiple times during the day enough time to make it to either location in a timely manner. 2020003811 4 Here, Complainant failed to meet her ultimate burden of proving, by a preponderance of the evidence, that her supervisors acted on the basis of a prohibited reason. In sum, Complainant has simply provided no evidence to support her claim that her treatment was the result of her sex or prior EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003811 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 August 5, 2021 Date Copy with citationCopy as parenthetical citation