[Redacted], Joanna G., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020003838 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joanna G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003838 Hearing No. 510201700121X Agency No. 200I15022016101889 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) pursuant to 29 C.F.R. § 1614.403, from the Agency’s Final Order concerning an equal employment opportunity 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Licensed Clinical Psychologist, GS-13, for the Readjustment Counseling Service ("RCS"), at the Agency’s Daytona Beach Veteran’s Center (“Vet Center”), located in Daytona Beach, Florida. On May 9, 2016, Complainant filed an EEO complaint alleging that she was subjected to harassment/a hostile work environment by the Agency, as reprisal for engaging in prior protected EEO activity2 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. 2 Agency No. 200I153A2015103121 (Aug. 19, 2015) (resolved by settlement agreement). 2020003838 2 1. In November 2015, her third level supervisor (“S3”), the Regional Director, accused Complainant of misrepresentation, misleading information and failure to follow procedures, 2. On or about January 5, 2016 her first level supervisor (“S1”)Team Leader, asked Complainant about her response to questions about her license renewal as the Agency considered reporting her to the State Board of Licensing, and, 3. On or about January 8, 2016, her second level supervisor (“S2”), the Deputy District Director, informed Complainant that a comprehensive review was being conducted on her licensing application. 3 After investigating her complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of right to request a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing. The assigned AJ held a hearing on January 13, 2020, and issued a decision in favor of the Agency on March 20, 2020. From 2011 through 2014 Complainant was a Team Lead, and reported to S3 as her first level supervisor. During this time frame, Complainant engaged in a year-long inappropriate sexual relationship with a veteran. The veteran was not under Complainant’s care, nor was he a Vet Center client. However, he was a client at an affiliated Agency facility, where, among other services, he received treatment from an Agency psychologist. In June 2014, the veteran disclosed the improper sexual relationship, which had since ended, to the Agency, and also alleged that Complainant violated his medical privacy under the Health Insurance Portability and Accountability Act (“HIPPA”). S1, who worked in a different Agency office at the time, met with the veteran and took an initial intake for his complaint. On July 1, 2014, S2 issued a letter to Complainant notifying her that the Agency initiated an investigation on the matter. In or about September 2014, S3 notified Complainant that she would be placed on paid administrative leave on September 8, 2014. Complainant was training her colleagues to replace her as “Acting” Team Lead. While making preparations for an upcoming site visit by S2, Complainant saw that the annual Memorandum of Understanding (“MOU”) between the volunteer yoga instructor and the Vet Center, had expired. Yoga was part of the Vet Center’s Relaxation and Wellness Program, and Complainant used it for helping clients with PTSD manage their symptoms. Seeking to ensure that the paperwork would be in order after she went on leave and in time for the site visit, Complainant attempted to register the volunteer yoga instructor through the Agency’s Daytona Voluntary Services office. 3 We have omitted a fourth claim, alleging that “on or about January 14, 2016, the Agency removed Complainant from her position pending investigation” as both parties agree this did not happen. 2020003838 3 The Volunteer Coordinator (“VC”) claimed that her position did not support volunteers at the Vet Center. VC provided Complainant with a volunteer packet to use as an example, and suggested that she contact the Orlando VA Medical Center. Complainant completed an updated MOU based on the forms, which she and the yoga instructor signed, and notified her coworker (“C1”) who she was training to replace her as the “Acting” Team Lead. On September 8, 2014, Complainant was placed on paid administrative leave. Later that month, Complainant applied to the Florida Licensing Board (“Florida Board”) for a license to practice clinical psychology. Meanwhile, the veteran with whom she was involved, filed another complaint against Complainant, this time with the Colorado Licensing Board where she had obtained her license to practice clinical psychology. On February 6, 2015, the Colorado Licensing Board issued a letter notifying Complainant that it dismissed the veteran’s complaint, due to “insufficient grounds to warrant commencement of formal disciplinary proceedings.” Complainant obtained her Florida License on February 20, 2015, aware that she was still under investigation by the Agency. On April 1, 2015, S3 issued a decision, which provided that “in the best interests of the Agency,” Complainant was demoted from Team Lead, to a non-supervisory role as the Vet Center’s Psychologist. Her pay grade and salary were not impacted. She also received a Letter of Reprimand. A few weeks after Complainant returned to work on April 1, 2015, she initiated an EEO Complaint alleging that S3 subjected her to harsher disciplinary actions than male employees who engaged in the same conduct. On August 19, 2015, S3 and Complainant resolved the EEO complaint by entering into the settlement agreement, underlying the instant reprisal claim. Under the agreement, the Agency would expunge the Letter of Reprimand from all Agency files on October 4, 2016, so long as Complainant was not subject to additional disciplinary action before then. Complainant alleges that this provision caused the Agency to subject her to two investigations in an attempt to subject her to disciplinary action, so the Letter of Reprimand remained in her record. In October 2015, S1 was hired as the Team Lead at the Vet Center, and was surprised to find that Complainant, who he assumed was fired, would be one of his subordinates. S1 disclosed that he found it difficult to work with Complainant because he felt biased against her. In S1’s opinion, from a professional standpoint, Complainant had to have known that the veteran she chose to have a relationship with was particularly “vulnerable.” S1 also revealed multiple times in the record that he resented the Agency’s decision to place Complainant on involuntary paid administrative leave, which, in an email to S2, he describes as “a reward/bonus of $81,380 for zero contribution to the mission-for nine months.” Investigation # 1: Volunteer Yoga Instructor On October 19, 2015, Complainant was co-leading a yoga class at the Vet Center, and made comments that a veteran in attendance found unprofessional. 2020003838 4 That veteran complained to one of Complainant’s coworkers (“C2”), then, the Acting Team Lead, who in turn notified S1. C2 already received feedback from a few other veterans voicing a preference for the Volunteer Yoga Instructor over Complainant to lead the class. S1 met with the veteran who made the complaint, and then spoke with the Volunteer Yoga Instructor. It was agreed that Complainant would not lead or co-lead the yoga class any more. S1 notified Complainant on October 26, 2015, during a previously scheduled meeting. While looking into this matter, S1 discovered that the annual MOU that Complainant and the Volunteer Yoga Instructor signed on September 8, 2014 had expired. In November 2015, S2 contacted VC for guidance, and learned that all Agency volunteers were required to undergo a vetting process, including fingerprinting and training with Volunteer Servicing. VC did not see a volunteer application from the Vet Center for a yoga instructor in the records for 2014. S1 discovered that the Vet Center lacked a formal procedure for volunteers, then he saw the September 8, 2015 training document, signed by Complainant, falsely certifying that Volunteer Yoga Instructor received the required Agency volunteer training from VC. S1 temporarily canceled yoga class and notified S3 that (1) Complainant exceeded her scope of authority by signing the volunteer form, and (2) there was no appropriate policy in place to vet volunteers for the Vet Center. S3 authorized an investigation. On December 6, 2015, the assigned investigator, a Team Lead from another facility, issued a report addressing the allegations. The report stated that Complainant neither exceeded her authority, nor failed to follow an agreement or policy for screening or registering volunteers. At the end of the Report, the Investigator stated, “of additional note, it will be helpful for [S1] to continue to work with supportive services regarding his self-disclosed ‘bias’ towards [Complainant]. It appears as though [S1] would benefit from coaching/mentoring to assist in him being successful as a Team Leader.” S3 testified that as this was merely the Investigator’s “opinion” no action was taken to mitigate S1’s “bias” toward Complainant, as his subordinate. Investigation #2 - License Application Disclosures On December 8, 2015, S1 held a team meeting to discuss coverage, as he was retiring in mid- January. According to S1, Complainant commented that she was interested in applying for her prior position as a Team Lead, and in this context, mentioned that she obtained a new license from the Florida Board. This greatly concerned S1, believing this was “another” instance of dishonesty and improper certification by Complainant. S1 looked up Complainant’s Florida license and determined that she applied for it while the Agency’s investigation into her alleged HIPPA violation and improper sexual relationship was still open. After further investigation, S1 was able to review Complainant’s Florida license application, and saw that she responded “No” to Question 31, which asked if she were under investigation in “any jurisdiction” at the time she applied. 2020003838 5 Prior to his retirement, S1 completed and signed a complaint form to the Florida Board, which, along with a detailed explanation of his “discovery” of Complainant’s “False Reporting” on her license, he sent to a number of Management Officials to use, if they felt it was necessary. S2 testified that S1 appeared to be trying to obtain the investigative file for Complainant’s now closed investigation into the improper sexual relationship. S2 informed S1 that it would be inappropriate to discuss Complainant’s closed case. Although S1 testified that he felt “tremendous pressure” from S2 to report Complainant to the Florida Board, but S2 denies pressuring S1, and provides emails where he made it clear to S1 that it was S1’s decision whether to report his “discovery” to the Florida Board. Moreover, Agency attorneys informed S2 that before reporting alleged licensing violations, the proper protocol would be to conduct an internal fact-finding investigation. S2 initiated the review without notifying Complainant. In January 2016, S1 told Complainant that she was under investigation for falsifying her application for her State of Florida Psychologist license because Florida defined “any jurisdiction” to include “employer, city, county, federal, or other government entity.” Complainant explained that when she completed the application, she thought the phrase, “any jurisdiction,” referred to a state licensing board or court, not an investigation by her employer. After conducting a comprehensive review, the Agency employee assigned to investigate the matter found “with reasonable probability, that [Complainant] may have answered in good faith based on her interpretation that the VA is not a licensing board or a court of law.” No further action was taken. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2020003838 6 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. Texas 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). Evidence to show that an Agency’s proffered explanation is pretext for discriminatory or retaliatory motivation may be found where there are internal inconsistencies, implausibility, or contradictions in an employer's explanation of a challenged employment decision. Complainant v. Office of Pers. Mgmt. & Soc. Sec. Admin., EEOC Appeal Nos. 0120120901 & 0120123038 (Dec. 2, 2013). Such evidence may include hearing testimony, emails and other documents, or in some instances, a lack of documentary evidence. See Hashimoto v. Dep't of the Navy, EEOC Request No. 05900823 (Dec. 31, 1990), Complainant v. Dep't of Labor, EEOC Request No. 0520120381 (June 25, 2015). The Commission has long held that the Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259, Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997), see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31, 2013). 2020003838 7 Claims 1 and 3 both concern investigations that Complainant argues were part of a “crusade” or a “witch hunt” that S3 was waging against her in retaliation for her prior EEO activity. For Claim 1, According to Complainant, S3 sought to engineer an “unwarranted” investigation where Complainant would be subject to disciplinary action so that the temporary reprimand on her record could no longer be expunged. For Claim 3, Complainant alleges that S3 inquired about her license with the Florida Licensing Board to cause her to lose her license and by extension, her job. Complainant emphasizes that the investigations began within two months of entering into the EEO Settlement Agreement with S3. While the temporal proximity was sufficient to establish a prima facie case, we find Complainant is unable to overcome Agency’s legitimate nondiscriminatory explanations for Claims 1 and 3. Claim 1 (Yoga Instructor Investigation) The Agency cites safety as its legitimate nondiscriminatory reason for accusing Complainant of misrepresentation, misleading information and failure to follow procedures in November 2015, with respect to her failure to properly vet the volunteer yoga instructor. By signing the portion of the annual agreement certificate reserved for the volunteer manager to sign, Complainant confirmed that the Yoga Instructor’s volunteer screening and training had been completed, even though they had not. Evidence reflects that Complainant tried to identify and apply the Agency’s volunteer policy while working under the knowledge that she would be placed on administrative leave the next day, and wanting to ensure continuous yoga treatment for the clients. Complainant contacted the appropriate authority, VC, and when VC informed her (incorrectly) that the Voluntary Services did not offer assistance for placing volunteers, Complainant reached out to two Associate Regional Managers, and neither was sure what to do. A September 10, 2014 email reflects that before her departure, Complainant also instructed C1, who would be Acting Team Lead in her absence, to ensure that the form was approved by the correct office, although this never occurred. The assigned investigator had a strong knowledge of the Agency’s volunteer protocols based on her prior management position at one of the Agency’s Medical Centers with a large volunteer program. She confirmed that when Complainant issued the September 8, 2015 certification and MOU for the volunteer yoga instructor, the Vet Center lacked a formal screening policy for volunteers. To the extent that Complainant allegedly violated the Agency’s overall policy for screening and vetting volunteers, the Investigator did not find “fraudulent” intent by Complainant. The investigator took Complainant’s time constraint into account, and noted that Complainant acted within the scope of her authority when she signed the certificate because she was the highest ranking employee at the Vet Center. The investigator emphasized during her testimony that S1 told her in a “direct quote” that he “was having a hard time staying unbiased [against Complainant.]” Despite these findings, the investigator definitively testified that S1 and S3’s decision to initiate an investigation in to the matter to be “valid.” 2020003838 8 Claim 3 (License Investigation) The Agency’s legitimate nondiscriminatory reason for subjecting Complainant to a third party “fact-finding” investigation or “comprehensive review,” in response to S1’s allegation that Complainant lacked candor on her license renewal application, was that it was Agency policy to internally investigate allegations related to professional licensing before notifying the relevant state board. S2 based his decision to request the investigation on evidence offered by S1 indicating Complainant knew she was the subject of an Agency investigation related to her improper sexual relationship with a veteran, yet she did not disclose this to the Florida or Colorado Licensing Boards. If the lack of candor was true, Complainant could be subject to disciplinary action by a licensing board, or lose her license. Either outcome would result in termination of Complainant’s employment. The investigator assigned to conduct the comprehensive review testified that the Agency had a valid reason to request the investigation, noting that Complainant’s supervisor raised the issue. With respect to the delay in notifying Complainant about the “comprehensive review,” S2 testified that he did not consult Complainant before initiating a third party investigation, even though he may have done so in the past or with other employees in the same situation, because of the severity of the allegation, and because he no longer trusted Complainant after the improper sexual relationship with a veteran. He was also aware that the resulting Letter of Reprimand, which was still conditional, included the investigative finding of “lack of candor.” S2 testified that leadership structure for Agency Vet Centers is “Remote Supervision,” which he describes as a “trust-based system.” As Deputy Director, S2 conducted site visits to the Vet Center about twice a year, otherwise, the Team Lead was usually the highest level employee on site. Before Complainant’s improper sexual relationship came to light, S2 trusted Complainant’s leadership of the Vet Center implicitly, and testified that Complainant “ran a fantastic vet center, one of the best. Never any issue. Never any doubt. I believe she started that Vet Center. I mean, just really solid, very dependable.” S2 explained that following the investigation of the improper sexual relationship and Complainant’s return to work, he no longer trusted Complainant. Therefore, while S2 sought to rebuild the trust he previously had for Complainant, in this instance, he felt it was appropriate to obtain a third party review of S1’s allegation regarding Complainant’s license. Harassment/Hostile Work Environment To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her race or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). 2020003838 9 A few isolated incidents of are usually insufficient to establish harassment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995). A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Claims 1 and 3, cannot be included in this harassment analysis because the Agency succeeded in providing legitimate nondiscriminatory reasons for the alleged actions in these claims. Claim 2 alleges a single instance of harassment unaccompanied by a concrete action, which occurred when S1 allegedly asked Complainant how she responded to questions on her license renewal, as the Agency considered reporting her to the State Board of Licensing. The record does not reflect that S3 or S2 took any steps toward reporting Complainant to the Florida Licensing Board, nor did they encourage S1 to report her. Despite his bias against Complainant and evidence in the record that he believed Complainant should be reported for “false reporting” on her application, S1 also did not report Complainant to the Board. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION 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). 2020003838 10 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. 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. 2020003838 11 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 January 11, 2021 Date