[Redacted], Kelly B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020003703 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelly B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003703 Agency No. 200P-0605-2019102385 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 13, 2020, finding no discrimination concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clinical Outpatient Pharmacist, GS-12, at the Agency’s Loma Linda VA Health Care System in California. On April 14, 2019, Complainant filed her complaint alleging that she was subjected to a hostile work environment in reprisal for prior union 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 The record reflects that Complainant and seven other Outpatient Pharmacists submitted a letter dated December 18, 2018, to the Chief of the Union complaining about management’s setting the quota for prescription processing too high in their Outpatient Pharmacy Performance Criteria causing them to fail the minimum required quota every month creating a hostile and stressful work environment. 2020003703 2 1. On or about February 20, 2019, she requested leave to attend a Federal Employees Retirement System (FERS) seminar; her first level supervisor (S1) denied her leave request on February 26, 2019. 2. On or about February 26, 2019, S1 denied her training for the FERS seminar. 3. On February 26, 2019, and February 27, 2019, S1 gave her verbal warnings for “not calling the numbers.” After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. S1 indicated that he was not aware of Complainant’s prior EEO activity. Regarding claim 1, S1 stated that a leave request was not needed since the FERS seminar was held in the campus. There is no evidence Complainant was denied any leave on February 26, 2019. Regarding claim 2, Complainant, who previously attended the seminar, requested to attend the FERS seminar either on February 26, 2019, or February 27, 2019, but was denied. S1 stated that due to staff shortage, workload, and previous attendance, he denied Complainant’s and other employees’ requests to attend the seminar. Specifically, S1 stated that on February 26, 2019, one pharmacist was off; one pharmacist (E1) was scheduled to attend AM session of the seminar; and another pharmacist was scheduled to attend PM session of the seminar. On February 27, 2019, stated S1, two pharmacists were off, and one pharmacist was scheduled to attend AM session. Regarding claim 3, S1 indicated that on February 27, 2019, he observed that Complainant, while working at the Intake window, did not pull the Intake tickets in the lobby to assist veteran patients who were waiting (instead, she was typing email.) S1 stated that the workload was backed up so much that he had to pull another pharmacist from other area to the Intake. S1 indicated that he called both Complainant and her coworker (E2), also a Pharmacist, into his office and gave a verbal warning regarding the Intake backup. The record indicates that E2, like Complainant, was not allowed to attend the seminar in February 2019. The record also reflects that E1 made his request on January 31, 2019, whereas Complainant submitted her request on February 20, 2019, i.e., one day before the February 21, 2019 deadline to register for the February 2019 seminar at issue, and three weeks after E1 made his request. In response to Complainant’s appeal, the Agency submits that Complainant did not engage in any protected activity upon which to base her reprisal claim. 2020003703 3 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), Chap. 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"). There is no evidence Complainant participated any prior EEO activity. Even if she did (without deciding), we find that Complainant failed to show that the Agency’s articulated reasons were a pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. S1 had supervisory duties to manage his employees and workloads and scrutinize their performance in order to achieve the Agency’s business goals. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 2020003703 4 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. 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. 2020003703 5 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 July 12, 2021 Date