[Redacted], Jonelle R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 16, 2021Appeal No. 2020003442 (E.E.O.C. Aug. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonelle R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003442 Hearing No. 410-2018-00329X Agency No. 2001-0508-2017104735 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 19, 2020, 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 is whether Complainant established that the Agency discriminated against her based on her age or in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid (WG-2) at the Agency’s Environmental Management Service (EMS) in Decatur, Georgia. 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. 2020003442 2 Complainant stated that from March to September 2017, she served on a detail assignment as an Acting Team Leader/Lead Housekeeper (WL-2), but she did not receive pay associated with the position.2 Report of Investigation (ROI) at 88, 90. Complainant’s supervisor (S1) (age 61, no prior EEO activity) stated that Complainant was paid for acting as a Lead Housekeeper. ROI at 143. Complainant stated that in or around September 2017, she was reassigned back to a Housekeeper Aid position. ROI at 93. On October 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her age (63), and in reprisal for prior protected EEO activity (prior EEO complaint filed in July 2017), when: 1. from March 2017 until October 2, 2017, Complainant performed the duties of a Lead Housekeeper but did not receive the pay associated with this position; and 2. on October 2, 2017, Complainant was reassigned back to a Housekeeper Aid position. The Agency accepted the above claims for investigation but dismissed Complainant’s claim alleging discrimination when in August 2016, Complainant was not selected for the position of Housekeeping Aid Leader Grade:02, Certificate Number:JV-16-ICe-0802150, Vacancy ID: 1695538, Series-Position:3566, as untimely. ROI at 49. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request because Complainant did not show good cause for her failure to timely comply with the AJ’s order to file a Pre- Hearing Statement. The AJ remanded the complaint back to the Agency to issue a final decision, pursuant to 29 C.F.R. § 1614.110(b). On September 14, 2019, Complainant filed an appeal, prior to the Agency’s issuance of a final decision. The Commission dismissed the appeal as premature but remanded the complaint and ordered the Agency to issue a final decision. Jonelle R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005772 (Jan. 31, 2020). On February 19, 2020, the Agency issued a final decision finding no discrimination. The Agency determined that management officials articulated legitimate, nondiscriminatory reasons for their actions, and that Complainant did not show pretext for discrimination. The Agency noted that Complainant provided her subjective belief that the Agency took advantage of her due to her age and retaliated against her for her EEO activity; however, Complainant did not provide any supporting evidence. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. 2 At the hearing stage, the Agency provided a declaration from a Human Resources Specialist who stated that the difference in pay and other benefits Complainant would have received from March to October 2017 was $1,027.14, based upon the relevant WG and WL pay schedules. 2020003442 3 Complainant filed the instant appeal, and she submitted a statement and documents in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant argues that she never received payment for her temporary assignment and that there was paperwork showing what the payment should have been, but she did not receive it. Regarding S1’s statement that Complainant was paid, Complainant responds that S1 “gave the money to someone else.” Complainant asserts that management officials were not truthful, which was proven by “incidents that have taken place affecting the agency.” Complainant notes that her outstanding performance ratings and awards demonstrate her professional demeanor, and she provided copies of her 2019 performance award and rating. Complainant states that she attempted to get supporting witness statements but was refused due to concerns of retaliation from upper management. Complainant also states that she was forced to clean the “Sleep Lab RME,” which was inappropriate. The Agency responds that its final decision thoroughly and accurately detailed the relevant facts and applied the appropriate legal standards to the facts. The Agency states that Complainant was assigned as an Acting Lead Housekeeper in March 2017 until she was reassigned back to the position of Housekeeping Aid, effective October 2, 2017. The Agency states that, while Complainant’s pay was not immediately increased while she worked as an Acting Lead Housekeeper, she was eventually paid at the rate of a Lead Housekeeper for the time she spent acting as a Lead Housekeeper. The Agency asserts that Complainant did not present any evidence to the contrary, and only argued that S1 “apparently, gave the money to someone else.” The Agency requests that the Commission uphold the final decision. ANALYSIS AND FINDINGS 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 (EEO MD-110), 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”). Claims As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id, at Chap. 9, § IV.A.3. On appeal, Complainant did not contest the Agency’s procedural dismissal of her non-selection claim; as such, we will not address it in the instant decision. 2020003442 4 In addition, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Here, Complainant argues that she was forced to clean the “Sleep Lab RME.” Should she wish to pursue this new claim, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date she filed her appeal (March 25, 2020), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date she receives this decision. New Evidence As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that they prepared a “form 52” for Complainant’s pay for acting as a Lead Housekeeper, but he was not sure if that was done while Complainant was acting or after she had finished the assignment. ROI at 143. 2020003442 5 Regarding claim 2, the EMS Chief (age 58, prior EEO activity) stated that Complainant was reassigned back to a Housekeeping Aid position because her customer service was bad; she did not want to do anything; and she did not get along with her supervisor. ROI at 113. Complainant’s supervisor during the detail assignment, an EMS supervisor (EMSS) (age 61, prior EEO activity), stated that Complainant was not performing requested duties and difficult to get along with. For example, EMSS stated that when he asked Complainant to do an inspection, she refused and stated that it was above her pay grade; and EMSS overheard Complainant tell three individuals that if it were up to her, she would “fire all of their asses.” ROI at 125, 127. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant alleges that the management officials lied which was proven by “incidents that have taken place affecting the agency.” However, Complainant did not specify these “incidents” and she did not provide any evidence to support her assertions. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). In addition, while Complainant disputes S1’s claim that she was paid and asserts that S1 “gave the money to someone else,” an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretext for discrimination. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Soc. Sec. Admin., EEOC Request No. 05980011 (Apr. 26, 2001). Here, Complainant did not provide any evidence to show that S1’s statement was not worthy of belief. Accordingly, we find that Complainant has not established that she was discriminated against based on her age, or in reprisal for prior protected EEO activity, when she performed the duties of Lead Housekeeper but allegedly did not receive the pay associated with this position; and when she was reassigned back to a Housekeeper Aid position. 2020003442 6 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 finding that Complainant did not establish that the Agency discriminated against her based on her age or in reprisal for prior protected EEO activity. 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. 2020003442 7 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 16, 2021 Date Copy with citationCopy as parenthetical citation