[Redacted], Juli Z., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.Download PDFEqual Employment Opportunity CommissionDec 22, 2021Appeal No. 2020004697 (E.E.O.C. Dec. 22, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juli Z.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2020004697 Hearing No. 550-2019-00397X Agency No. 200P-0668-2018104401 DECISION On July 28, 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 June 29, 2020 final order concerning 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN), VN-11, at the Agency’s VA Medical Center (VAMC) in Spokane, Washington. On September 12, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (cancer), age (54), and reprisal for engaging in protected EEO activity (Complainant’s letter of resignation opposing alleged discrimination) 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. 2020004697 2 1. since Spring 2017, management denied Complainant reasonable accommodation, and 2. on July 27, 2018, management constructively discharged Complainant when she was forced to resign due to hostile work environment harassment, including Human Resources failing to properly process her resignation. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, an Agency Human Resources Officer (HR1) stated that Complainant was appointed as a RN on October 30, 2016, subject to a two-year probationary period. HR1 stated that she originally started work in a Specialty Clinic and then applied for and received assignment to a RN position in the Care in the Community Service on April 1, 2017. The record shows that Complainant’s probationary period was fraught with interpersonal problems. Employees reported to management that she demonstrated aggressive, condescending, and rude behavior. In February 2018, management issued Complainant a written counseling for this rude and condescending behavior. When incidents continued, in June 2018, management informed her that it would be reviewing her performance. In July 2018, Complainant was charged with being absent without official leave (AWOL) for more than 50 hours. These actions were documented and corroborated. Complainant resigned in their wake effective July 27, 2018, claiming in her complaint that, because of them, her resignation was forced because she was counseled, admonished, scrutinized and intimidated. Management witnesses stated that Complainant’s resignation was processed consistent with standard Human Resources procedures. Complainant stated that she had asked to be able to continue to “float” within the specialty clinics as reasonable accommodation to her medical condition, but she was forced to transfer to a new unit instead. HR1 and the officials supervising Complainant denied any knowledge of her requesting an accommodation for her disabilities, although they did note that she had verbally asked for Family and Medical Leave Act (FMLA) leave. The record contains an FMLA approval dated April 27, 2018, for a period of medical incapacitation/treatment from April 30, 2018 to May 14, 2018, and for follow-up medical appointments on May 15, 2018 and June 14, 2018. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined that the complaint did not warrant a hearing and, on June 25, 2020, issued a decision by summary judgment finding no discrimination was established. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. 2020004697 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. As an initial matter, we agree with the AJ, that the record does not support Complainant’s contention that she requested a reasonable accommodation other than FMLA leave which the record indicates was approved. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, but Complainant did not establish that any of the responsible Agency officials were aware that she required an accommodation beyond the FMLA leave for her disabilities. See 29 C.F.R. § 1630.9(a). To prove her overall 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 a protected basis - in this case, her sex, disability, age or engagement in prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020004697 4 Here, we find that Complainant failed to establish discriminatory harassment. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style and her coworkers that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. The preponderance of the evidence does not establish that any of the disputed actions were motivated by discriminatory or retaliatory animus.2 Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As such, Complainant’s additional claim of constructive discharge cannot be sustained because the record does not support her contentions that the Agency created such “intolerable” and discriminatory working conditions that she was forced to resign. See Greer v. U.S. Postal Service, EEOC Appeal Nos. 01976792 & 01976756 (December 29, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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. 2 We note that Complainant claimed retaliation for her opposition to alleged discrimination in her letter of resignation. However, this occurred after almost all the events in dispute, not before. Therefore, we conclude there can be no inference of retaliatory animus motivating the pre- resignation incidents described in her complaint. 2020004697 5 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. 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. 2020004697 6 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 December 22, 2021 Date Copy with citationCopy as parenthetical citation