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

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2020003878 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juanita K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003878 Hearing No. 410-2017-00321X Agency No. 200I-0557-2016101725 DECISION On May 25, 2020, 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 April 24, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant was an Agency employee at the Carl Vinson VA Medical Center (VAMC) in Dublin, Georgia. In October 2015, Complainant applied for and accepted a GS-12 position which had been designated “Social Work Program Coordinator” with the Social Work Service2 at the Carl Vinson VAMC. 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 Complainant had previously worked in the Mental Health Service. 2 2020003878 In December 2015, Complainant began work in the Social Work Service where the Social Work Executive (“SWE”) (African American) became her first-line supervisor. Initially, Complainant’s new position was entitled “Caregiver Support Coordinator.” However, the VAMC’s Human Resources (HR) office determined that this title and the position’s functional statement were incorrect. As a result, the HR office found it necessary to correct the administrative error. Complainant’s position was therefore cancelled and reposted with a corrected title of “Supervisory Social Worker” and accurate functional statement. On November 4, 2016, the Agency selected Complainant for the reposted Supervisory Social Worker position. Complainant initiated EEO counselor contact on January 15, 2016. The parties failed to resolve the matter informally. On May 2, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African American) and in reprisal for prior EEO-protected activity when: 1. On January 2015, during a conversation with the Chief of Mental Health (“S2”) (Caucasian) about the Social Work Professional Standards Board, he asked Complainant whether she was “trying to help a co-worker” and that if Complainant was trying to help SWE, then Complainant was making a mistake. 2. On October 13, 2015, the facility’s Chief of Human Resources (“HR Officer”) refused to forward Complainant’s boarding request to Social Work Professional Standards Board. 3. Around October 13, 2015, HR Officer informed Complainant that the position for which she was hired was posted incorrectly and had to be “re-announced”. 4. In November 2015, Complainant requested to be boarded at the Veterans Integrated Service Network (VISN) level and HR Officer held Complainant’s request until HR Officer joined the board and was head of the board. 5. In November 2015, when HR Officer refused to "board" Complainant at the VISN level. 6. From November 4, 2015, to December 2, 2015, HR Officer delayed Complainant’s transition to her new position. 7. On December 2, 2015, Complainant received an email from one of the HR Officer’s subordinates (“HR Specialist”) stating that the VISN Board had refused her request for boarding. 8. On January 14, 2016, after Complainant requested to be boarded by the Central Office’s Professional Standards, HR Officer stated he needed time to formulate a response. However, HR Officer did not formulate a response. 9. In January 2016, Complainant's HR office ‘intentionally’ sent an incorrect functional statement to the Board in order to “sabotage” Complainant’s request for promotion. 3 2020003878 10. On March 23, 2016, HR Officer “purposely” sent the wrong paperwork to the Board. 11. After Complainant told the HR office that they sent the wrong paperwork to the Board, the HR office has not done anything about sending the correct one. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After an initial conference order, the Agency initiated discovery timely on September 3, 2019. On October 8, 2019, and on February 10, 2020, the Agency filed motions to Compel Complainant’s response to its discovery requests. Through Counsel, Complainant responded and opposed the Agency’s motions. On February 18, 2020, the AJ issued an order granting the Agency’s motion to compel Complainant’s response to the Agency’s discovery requests. On March 26, 2020, the AJ assigned to the case issued an amended order that dismissed Complainant’s hearing as a sanction for non-compliance with the AJ’s discovery orders. Specifically, the AJ determined that Complainant had failed to respond timely and then, when compelled to do so, had provided insufficient information. On remand from the AJ, the Agency issued a final decision which concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, as to Complainant’s arguments that the AJ erred in dismissing the hearing, we find that the AJ did not abuse her discretion under 29 C.F.R. §§ 1614.109(a) and 1614.109(e). EEOC regulations give the AJ wide latitude in directing terms, conduct, and course of hearings. We find no reversible error in the AJ’s decision to sanction Complainant for unsatisfactory compliance with the AJ’s discovery order. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Disparate Treatment: Claims 2, 4, 6, 7, 8, 9, and 10 The Commission reviews disparate treatment claims by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie 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 Agency’s employment actions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 4 2020003878 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Without so finding, we presume that Complainant established the prima facie case that she received less favorable treatment than Caucasian comparators who were granted special advancement for professional achievement (in the form of grade or step promotions) through the Agency’s “boarding” processes. The Agency has provided non-discriminatory explanations for its actions that Complainant challenged in the context of disparate treatment. According to the Agency, both the HR Office as well as officials responsible for boarding Complainant’s “package” (advancement for achievement package) had expressed reluctance concerning in approving Complainant’s request for boarding because Complainant had laterally transferred between GS-12 positions. In an email dated January 30, 2017, to the EEO investigator, an HR Specialist explained that eventually Complainant’s boarding request was granted, but ultimately, it was determined that Complainant’s current position as a Supervisory Social Worker did not warrant advancement. The Agency attributed delays in the boarding process to SWE after Complainant transferred from the Mental Health Service to the Social Work Service. The Agency further stated that despite the confusion over Complainant’s duty title and functional statements in the new position, the duties of the position did not warrant promoting her. Regarding the Complainant’s alleged comparators who were Caucasian and had received promotions though the boarding process, the Agency reasoned that the other social workers had different grades, different supervisors, and worked in different business lines. Complainant has failed to prove, by a preponderance of the evidence, that these Agency’s justifications were unworthy of credence or a pretext to mask unlawful animus against her race or prior protected activity. Harassment: Claim 1, 3 and 5 We also consider Complainant’s claims concerning the confusion about her job title and about her selection in the context of harassment or a hostile work environment. To prevail, Complainant must show she was subjected to conduct so severe or so pervasive that a reasonable employee in the same position would consider the same treatment abusive. Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant must also prove that the conduct was motivated by animus against one of her protected characteristics. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Only where Complainant establishes both abusive conduct and a discriminatory motive can we can find the Agency liable for harassment discrimination. Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,1998). 5 2020003878 The Agency acknowledged management’s role in administrative errors wherein Complainant’s present position had an improper title and then Complainant had to be reselected after the position’s functional statement was corrected. The Agency explained that Complainant’s position was a newly created position. Despite the confusion in describing Complainant’s position after she had transferred to the Social Work Service, Complainant was re-selected for that position once HR corrected the problem. We understand Complainant may have been frustrated with the handling of her position, but we are not persuaded that the Agency was unlawfully motivated nor that its personnel mistake categorizing Complainant’s job description and title qualifies as abusive conduct. We have also considered Complainant’s claim that S2’s comment in January 2015 was made to discourage her from engaging in protected activity. First, we do not find that there was a clear meaning to S2’s statement and, as such, cannot conclude that the comment was likely to discourage a reasonable employee from engaging in EEO protected activities. Moreover, we note the personnel actions that Complainant claimed were retaliatory occurred after S2 was no longer in Complainant’s chain-of-command. In sum, we find inadequate evidence in the record to support a finding of racial or retaliatory harassment in violation of Title VII. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination or unlawful retaliation. 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). 6 2020003878 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. 7 2020003878 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 December 6, 2021 Date