[Redacted], Josefina L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 29, 2022

Appeal No. 2020003915 (E.E.O.C. Mar. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josefina L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003915 Hearing No. 410-2018-00112X Agency No. 200I-0557-2017102142 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) received Complainant’s timely appeal, filed per 29 C.F.R. § 1614.403(a), from an April 29, 2020 final Agency order on 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. Complainant is represented by counsel. Complainant was employed by the Agency as a Caregiver Support Coordinator (Supervisory Social Worker), GS-0185-12, at its Veterans Affairs Medical Center (VAMC) in Dublin, Georgia. She supervised the VAMC’s Caregiver Support Program in its Social Work Services. On April 20, 2017, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected her to a hostile work environment based on her race (African American), sex (female), and reprisal for prior protected EEO activity under Title VII when: 1. On December 30, 2016, by email the Dublin VAMC Director - her third line supervisor (“S3” Caucasian/female) directed her to follow up on the denial of an appeal in a caregiver’s support case that was closed over a month. 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. 2020003915 2 2. On January 25, 2017, she learned that the National Social Work Program was going to review (onsite occurred in March 2017) the Caregiver Support Program, and the Social Work Professional Standards Board she chaired. 3. On February 10, 2017, S3 called and chastised her in a loud tone for sending an email response to an inquiry by the National Community Nursing Home Program. 4. On March 7, 2017, she was required to participate in the National Social Work Program onsite visit. 5. On April 14, 2017, she learned the Social Work Professional Services Board of three she chaired was being dissolved by S3. 6. After her second line supervisor (“S2” African American/female) explained she detailed “the first person she could get to” to Acting Chief of the Social Work Service (“S1a”- African American/Female) to whom she directly reported, she learned on May 30, 2017, that a temporary concomitant promotion to GS-13 for S1a was being processed without giving her or anyone else in the service the opportunity to be detailed. S1a acted from April 11, 2017 to June 12, 2017. 7. At S3’s behest, an employee whose permanent duty station was the Palo Alto VAMC in California, was detailed as the next Acting Chief of the Dublin Social Work Service (“S1b” - African American and Korean/female) on June 12, 2017, not to exceed October 12, 2017, without offering her or anyone else the opportunity to be detailed. 8. On June 14, 2017, S1b verbally inferred that an email Complainant sent to management the day before expressing she was “disappointed” with the process that resulted in S1b becoming Acting Chief was inappropriate. 9. On June 26, 2017, Acting S1b told her she needed to submit a doctor’s excuse for her sick leave request to be approved for her unscheduled absence from Wednesday, June 21, 2017 through Friday, June 23, 2017. 10. On June 29, 2017, Acting S1b targeted her by saying a doctor’s note was required for sick leave to be approved for this absence because it was in excess of three days, but she was not absent that long. 11. In March 2017, she learned that Coworker 1 (white/male) was reassigned to the position of Veterans Justice Outreach Coordinator without giving her or anyone else the opportunity to compete for the position. 12. In March 2017, she learned that Coworker 2 (white/female) was promoted to Senior Social Worker, GS-12, without giving her or anyone else the opportunity to compete. 2020003915 3 13. On April 19, 2017, she was forced to participate in an Administrative Investigation Board interrogation without being told the reason for it or being allowed enough time to prepare and arrange to have representation present. 14. On July 18, 2017, she learned that Coworker 3 (white/female), a Social Worker, GS- 0185-12, was reassigned to Mental Health Residential Rehabilitation Treatment Program Assistant Chief (as a Social Worker, GS-0185-12), without giving her or anyone else the opportunity to compete for the position. Following an Agency EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment supported by citations to the record, and Complainant, represented by counsel, did not reply. In her decision the AJ granted the Agency’s motion without a hearing and found no discrimination for the reasons stated in the Agency’s motion, which she incorporated by reference into her decision. The Agency’s final order adopted the AJ’s decision. The instant appeal from Complainant followed. The Commission's regulations allow an AJ to issue a decision without a hearing when they find there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2020003915 4 By reference to the Agency’s motion for summary judgment, the AJ found as follows. Offensive or Insulting Treatment - Incidents 1, 3, 8 - 10 By email S3 just asked for the status of Caregiver Support appeal denial, which turned out to be closed, and that was the end of it (incident 1). Complainant did not specify S3’s language that was chastising, and S3 did not recall chastising Complainant (incident 3).2 Complainant did not identify what S1b said that inferred she felt her email expressing disappointment with the process resulting in S1b becoming Acting Social Work Service Chief was inappropriate. S1b denied inferring this (incident 8).3 Complainant was out sick for three consecutive workdays. S1b, who was newly detailed to the Dublin VAMC and not well versed in leave policy, misread Dublin’s sick leave policy that a doctor’s note was required for absences that exceed 3 consecutive workdays to mean 3 consecutive days. S1b’s actions were consistent with this - right after Complainant told her this was wrong, S1b reached out to Human Resources for sick leave policy clarification and then apologized to Complainant (incidents 9 and 10). National Social Work Program Office Review & Resulting Action, Administrative Board Investigation - Incidents 2, 4, 5, 13 The National Social Work Program did its onsite review in March 2017, after an Administrative Investigation Board, per its onsite visit in August 2016, recommended this. After the Chief of the Social Work Service (“S1” Black/female) complained that S3 and the Dublin Chief of Staff created a hostile work environment,4 S3 contacted the Veterans Integrated Service Network (VISN) 7, which oversees Dublin and seven other VAMCs, to ask for an investigation, which resulted in the above August 2016 onsite. 2 Complainant stated she responded to an email inquiry when she was Acting Social Work Chief one day, and S3 “wrongfully accus[ed] me of sending the incorrect information.” 3 Complainant wrote in her rebuttal EEO investigative statement that she inferred S1b felt the email was inappropriate because she said she needed to follow the chain of command. 4 On June 14, 2016, S1 emailed the Director of VISN 7, copying the Secretary of Veterans Affairs, with the subject “Urgent Intervention Needed” that she was being harassed by S3 and the Dublin VAMC Chief of Staff. She alleged they were pressing and blaming her on the problematic operation of her Caregivers Support Program’s Home Heath Community Program, but prevented her from demoting/reassigning her subordinate who ran it, and S3 accused her of not having a contingency plan. She wrote the Chief of Staff told her she gave incorrect information on the number of outstanding bills in the home program, she replied she was being disparately treated, and he yelled in her face to be quiet and listen. The VISN 7 Director replied with days to Complainant that she decided VISN 7 would investigate. 2020003915 5 The above Administrative Investigation Board recommended that the National Social Work Program office review Dublin’s Social Work Services processes, reporting structure, compliance with Agency directives, laws, and policies, and provision of services it provided. In December 2016, VISN 7’s Deputy Director emailed the National Director of Social Work programs that VISN 7 also wanted a focused review of Dublin’s Social Work Services Nursing Home Program, Caregiver Support Program, Social Work boarding and selection process, and hostile work environment. On March 7, 2017, during the National Social Work Program Dublin VAMC onsite visit, Complainant expressed to S2 and S3 that she was concerned she was one of the review targets. All those requested are required to participate in the site visit because participation by process owners is a critical element of any programmatic review (incident 4). S3 directed that the Dublin VAMC Social Work Professional Standards Board (which is made up of social workers and is involved in making recommendations for certain hiring and promotions) of three chaired by Complainant be dissolved per the recommendation of the above National Social Work Program’s review because of its erroneous applications of qualification standards. S2 stated the review found at least two instances of the Board recommending appointing applicants for the wrong step and grade, and some veterans were not given their veteran preference (incident 5). In April 2017, a second Administrative Investigation Board did onsite visit at Dublin to investigate internal factors contributing to a hostile work environment.5 Agency code of federal regulations requires cooperation with an investigation like this unless doing so could lead to the possibility of self-incrimination (incident 13).6 Not Being Given an Opportunity to Compete for Positions, Incidents 6, 7, 11, 12, 14 Agency management did not compete S1a’s detail as Dublin’s Acting Social Work Services Chief because this is not required for interim short term leadership appointments. S2, who chose S1a in May 2017, stated she did so to give the Service consistency since S1a always covered in the Chief’s absence. 5 In an April 17, 2017 email reply by S3’s Executive Assistant on why she was scheduled for an interview by the second Administrative Investigation Board, she explained to Complainant that the first Administrative Investigation Board recommended a second one to focus on internal factors contributing to a hostile work environment. 6 In her EEO investigative statement, Complainant stated the questions to her in the second Administrative Investigation Board were about S1. 2020003915 6 While Complainant stated she served as the Acting Chief more often than S1a, she gave no evidence S2 knew this (incident 6).7 S1b became the next Dublin Acting Social Work Services Chief after S3 requested an external candidate because of the many issues and concerns identified and verbalized by staff, the National Social Work Program, and S3’s concerns. The National Social Work Program recommended S1b, and S3 agreed (incident 7). Coworker 1 was reassigned as a reasonable accommodation (Incident 11). Coworker 2 got a non-competitive career ladder promotion from Social Worker, GS-0185-11 to Social Worker GS-0185-12 after an external Social Worker Professional Services Board found she met the requirements to be promoted. Coworker 3 was reassigned as part of a restructuring that abolished his position as Chief of Domiciliary and moved him into a restructured position of the MHRRTP Assistant Chief, which combined the duties of both chief positions (incident 14). On appeal, Complainant explains why she failed to reply to the Agency’s motion for summary judgment, and argues the AJ should have granted her motion to vacate her decision to give her an opportunity to do so. We find the AJ did not abuse her discretion in denying Complainant’s motion to vacate. Complainant argues that the EEO investigative report does not include the Administrative Investigation Board written recommendation to dissolve Dublin VAMC’s Social Work Professional Services Board. But S3 stated the recommendation came from the National Social Work Program. In its report, it recommended that the Social Work Professional Standards Board be suspended and replaced with new members, suggesting that this was to ensure compliance with proper and consistent processes. EEO Investigative Report, at Bates No. 425. Complainant argues that the AJ did not properly assess the facts in making a decision without a hearing finding no discrimination. We disagree. 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 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. 7 After 30 days serving as Acting Social Worker Service Chief, S1a was temporarily promoted to GS-13 per Agency guidelines (incident 6). 2020003915 7 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. 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. 2020003915 8 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 29, 2022 Date