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

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal No. 2020001090 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jenna P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001090 Agency No. 200J-0695-2018102801 DECISION On November 8, 2019, 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 October 11, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision. ISSUE PRESENTED The issue presented is whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to disparate treatment and/or harassment based on age. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) Program Manager, GS-12 at the Agency’s Clement J. Zablocki VA Medical Center in Milwaukee, Wisconsin. On April 13, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (64) when: 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. 2020001090 2 1. on or about June 2, 2017, Complainant was detailed to another position in the Release of Information (ROI) Department while an Administrative Board Investigation (ABI) was conducted; 2. in November 2017, Complainant was made to resubmit her Family and Medical Leave Act (FMLA) paperwork and was told that she would be charged Absent Without Leave (AWOL) if it was not fixed by December 19, 2017; 3. on or about December 29, 2017, Complainant was not paid due to being marked AWOL for two weeks; and 4. on February 2, 2018, Complainant felt forced to retire due to harassment based on her age.2 Claim 1: on or about June 2, 2017, Complainant was detailed to another position in the ROI Department while an ABI was conducted. Complainant stated that one of her subordinates had alleged that Complainant created a hostile work environment. Complainant stated that Complainant’s first-line supervisor (S1), Complainant's second-line supervisor (S2), and upper management decided to perform an ABI into the allegations. Complainant alleged that during the ABI, management reassigned Complainant to the ROI department. Complainant stated that management informed her that she had to be reassigned due to the pending board investigation. Complainant alleged that the reason provided by management was not a true reason because Complainant ultimately went back to being supervised by S1 after the ROI department supervisor alleged Complainant was too talkative and someone reported a smell of alcohol. Complainant indicated that she informed S1 and S2 that she thought the reassignment was offensive, implying that she felt the position to which she was reassigned was undesirable. Complainant also stated that the position required her to stand and scan documents all-day and this caused her pain as she had blood clots in her legs. Complainant stated that management was aware of the blood clots in her legs. Complainant stated that S2 assumed Complainant wanted to be “off” until the ABI was over, which was not true. Complainant stated that S2 told her that Complainant had other “options” since Complainant had been with the Agency for 40 years. 2 The Agency noted that it partially dismissed Claims 1 and 2 pursuant to 29 C.F.R. 1614.105(a), and in accordance with Section 1614.107(a)(2) as untimely raised discreet acts for which the record reflected no reason to justify a waiver. Both claims were however retained as evidence to support Complainant's overall claim of harassment. The Commission addresses all four of Complainant’s allegations in this decision. 2020001090 3 Complainant indicated that she reported her reassignment as harassment by talking to S1. Complainant indicated that after she reported the alleged harassment, management took no action. Complainant stated that this was discriminatory based on her age because there was no reason to move her to the ROI department when it was a temporary reassignment. S2, affirmed by S1, explained that Complainant was detailed while management conducted an ABI following some whistleblower allegations that were based on Complainant’s inability to manage the staff appropriately and to hold staff to a standard of care. S2 stated that she thought staff would be in a precarious position and would not be forthcoming with information while being exposed to Complainant daily. S2 stated that she received a report of contact from the ROI department suggesting that Complainant was distracting coworkers with excessive conversation. The ROI department supervisor also reported that she smelled of alcohol on more than one occasion. S2 stated that management then asked Complainant to take over administrative tasks in the Acute Outpatient division instead, so that Complainant could be more closely monitored. S2 stated that given the concerns at the ROI department, and the report that Complainant’s ineffective work behaviors could not be corrected, S1 decided to return Complainant; and assigned Complainant back to her original division. S2 stated that she did not recall telling Complainant that S2 assumed Complainant wanted “off” during the investigation, nor did Complainant inform S2 of a condition or other concern that related to Complainant’s temporary assignment. Neither S2 nor S1 recalled that Complainant reported harassment. In rebuttal, Complainant reiterated her allegations, asserting that she told S1 that it was unfair that everyone else remained in their positions, including S1, yet she, Complainant was reassigned somewhere else. Complainant also asserted that her “inability to manage staff” was not shared with her during Complainant’s conversation with S2. Claim 2: in November 2017, Complainant was made to resubmit her Family and Medical Leave Act (FMLA) paperwork and was told that she would be charged Absent Without Leave (AWOL) if it was not fixed by December 19, 2017. Complainant stated that following her doctor’s advice, she requested and received FMLA. Complainant stated that S1 informed her by letter that Complainant’s FMLA papers were not appropriate. Complainant stated that the letter required her to have her paperwork redone by a certain date or Complainant would be charged AWOL. Complainant asserted that her doctor corrected the error; and that she resubmitted her FMLA paperwork to S1. Complainant stated that she did not report the incident as harassment or hostile work environment at the time. Complainant alleged that S1 was threatening her with AWOL during a stressful period in Complainant’s life. Complainant indicated that S1’s letter was a delayed request for more paperwork because time had elapsed since Complainant’s original submission. Complainant indicated that she did not believe that S1’s action was based on Complainant’s age. 2020001090 4 S1 stated that she had difficulty contacting Complainant during the period in question. S1 indicated that she eventually sent a letter to Complainant, asking that Complainant provide medical documentation to support Complainant’s continued absence. S1 also warned Complainant that if Complainant did not submit appropriate medical documentation, Complainant would be marked AWOL. S1 indicated that this warning was consistent with applicable Agency standards. S1 also stated that she was not aware of the harassment or hostile work environment allegations until the instant complaint was filed. S2 provided supporting statements, noting that though not typical, it was possible for a month to elapse before an employee was contacted to correct errors in paperwork. In rebuttal, Complainant indicated that she was not contacted by S1; neither did she speak to S1 until the day following the death of Complainant’s husband when Complainant called to inform S1 of the event. It was at that time, Complainant indicated, that she informed S1 that Complainant would get the updated medical documentation to S1 as soon as possible. Claim 3: on or about December 29, 2017, Complainant was not paid due to being marked AWOL for two weeks. Complainant alleged that she was charged two weeks AWOL even though Complainant had faxed her corrected medical documentation paperwork by the deadline date as instructed. Complainant indicated that management had not provided her with an explanation for the AWOL charge. Complainant stated that S1 told Complainant that the AWOL charges would be reversed. Complainant contended that S1’s action was inappropriate and harassing because S1 knew that Complainant’s husband died. Complainant stated that she did not know whether other employees were treated in the same manner or treated more favorably than her regarding AWOL. Complainant stated that she did not indicate to S1 that she thought the AWOL charge was offensive or unwelcome. Complainant stated that she did not believe she was charged AWOL based on age. Complainant stated that after several pay periods, the charge was corrected, and she received her pay. S1 asserted that she did not recall charging Complainant AWOL. S1 indicated that she only learned of Complainant’s allegation during the EEO process; and that she had no knowledge of anyone harassing Complainant. S1 also asserted that she was sympathetic and saddened to hear about Complainant’s husband. In rebuttal, Complainant reiterated her allegations against S1, asserting that she discussed the AWOL charge with S1. 2020001090 5 Claim 4: on February 2, 2018, Complainant felt forced to retire due to harassment based on her age. Complainant alleged that due to the hostile work environment, she had to retire. Complainant asserted that S1 was thrilled that Complainant was retiring and had the paperwork ready. Complainant alleged that S1 commented that her retirement was “wonderful.” Complainant argued that she was constructively discharged. She stated that she felt pressured by management to retire based on her age considering the ABI. Complainant stated that she did not indicate to management that she felt offended or that comments allegedly made by S1 that Complainant could find a new job were unwelcome. Complainant stated that she did not inform management that she was harassed. S1 repeatedly stated that she was not aware of Complainant’s age, asserting that she did not initiate any discussion regarding retirement with Complainant. Nor did she know why Complainant felt forced or pressured to retire. S1 stated that there was one other employee who voluntarily retired. S1 stated that Complainant asked to obtain a copy of the ABI; and that S1 advised Complainant to make a Freedom of Information Act (FOIA) request. S2 provided supporting statements, adding that she twice discussed options with Complainant. S2 stated that Complainant never mentioned to S2 that Complainant felt forced to retire or that Complainant felt harassed or offended from S2’s conversations with Complainant. 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. The AJ cancelled the hearing following Complainant’s failure to comply with the AJ’s orders. On March 11, 2019, the AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts her belief that the facts in her case support discrimination. Complainant therefore requests further review. In response, the Agency reiterates that Complainant failed to meet the burden of proof with respect to her complaint that she was subjected to a hostile work environment or harassed based on her age. Likewise, the Agency asserts, on appeal, Complainant failed to proffer any evidence to show that she satisfied her burden of proof regarding the claims of unlawful discrimination. The Agency requests that the Commission affirm its FAD. 2020001090 6 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”). ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on age; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Claim 1, S1, affirmed by S2, stated that Complainant was reassigned pending investigation into complaints against Complainant by a subordinate. Complainant raised arguments to indicate that she did not feel the reassignment was desirable. She however described no facts to substantiate her allegation that the reassignment was based on her age. Complainant was also reassigned to her original division due to her unaddressed behavior even though it does not appear that the ABI was completed at that time. Regarding Claim 2, S1 explained that Complainant was asked to provide updated paperwork to substantiate her continuous FMLA use. Complainant contended that S1’s letter was delayed; and that S1 threatened to charge her with AWOL. However, S1 explained that she was unable to timely reach Complainant. S1 also explained that charging an employee with AWOL for untimely submission of paperwork was the Agency standard. 2020001090 7 Besides, S2 stated that the one- month delay in contacting Complainant to resubmit her corrected paperwork was not typical but possible. Regarding Claim 3, S1 denied charging Complainant AWOL. Complainant also admitted that the alleged AWOL charges were reversed. Complainant attempted to show pretext by arguing that she found some of the alleged management actions to be offensive or insensitive based on her circumstances following the death of her husband, and the discomfort Complainant felt due to blood clots in her legs. However, statements provided by S1 and S2 indicate that they were not aware that Complainant found the alleged management actions offensive. In January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015), the Commission stated that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. We find no such proof in the instant complaint. Neither did Complainant describe any ageist comments made or actions taken by S1 or S2 that would support Complainant’s age discrimination allegations. We find that Complainant failed to establish a prima facie case of discrimination as she has not provided any evidence or facts that give rise to an inference of unlawful discrimination based on her age. Complainant also failed to demonstrate that she was treated less favorably than similarly situated employees under similar circumstances. Moreover, Complainant failed to identify any comparators who engage in the same behavior described by management that led to the ABI. She also admitted that she was not aware of any employees who received different treatment regarding the alleged AWOL charge. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). Harassment In the same vein, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020001090 8 Constructive Discharge - Claim 4 Regarding Claim 4, Complainant alleged a claim of constructive discharge when she was forced to retire. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon- Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant did not describe any facts that establish that she was subjected to constructive discharge as alleged in Claim 4. 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 2020001090 9 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. 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. 2020001090 10 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 July 21, 2021 Date