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

Equal Employment Opportunity Commission

Nov 9, 2021

Appeal No. 2021003836 (E.E.O.C. Nov. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimber L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003836 Agency No. 200J-0515-2020104771 DECISION On June 15, 2021, 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 May 18, 2021, 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 presented is whether the Agency, in its Final Agency Decision (FAD), correctly concluded that Complainant was not subjected to a hostile work environment based on age. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, Grade 1, at the Agency’s Mental Health - Geriatrics unit in Battle Creek, Michigan. Complainant’s coworker (C1), serving as Charge Nurse, told Complainant to go home because she was coughing without wearing a mask. However, Complainant did not go home. Instead C1 instructed her to put a mask on and Complainant completed her shift. 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. 2021003836 2 An internal inquiry by management concluded that C1 falsely alleged that Complainant was coughing without wearing a mask. However, a second coworker (C2), in an affidavit for the EEO investigation, confirmed that he witnessed Complainant coughing without a mask on. (Report of Investigation [ROI], Tabs 7-1; 1-1; 7-3; 7-5; 7-10) Complainant’s first-line supervisor (S1) met with both Complainant and C1. According to Complainant, during the meeting, C1 stated that he worried about Complainant’s memory after observing that Complainant could not remember taking several minutes to fix a printer with him. Complainant felt that C1’s statements regarding her memory were an attack on Complainant’s “advanced age.” She also felt that C1’s statements implied that Complainant had “age-related memory issues” and “dementia.” (ROI, Tab 7-1; 7-12) Thereafter, Complainant was instructed to retake orientation training. According to S1, she received multiple reports indicating that Complainant did not know how to complete essential components of her job independently. Complainant also had allegedly left a patient alone who was supposed to be under constant observation. This, S1 stated, demonstrated Complainant’s “poor judgment and/or lack of understanding” of the requirements of a close observation assignment. S1 also indicated that Complainant had had a “prolonged absence from work.” (ROI, Tabs 7-1; 7-3; 7-11) On September 17, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (70). The Agency framed the complaint as follows:2 1. beginning on May 24, 2020, C1 allegedly told lies about Complainant, forced Complainant to treat his patients, was sarcastic to Complainant, was childish towards Complainant, implied Complainant has memory and age-related issues, and management has done nothing to stop him; and 2. in August 2020, Complainant was told she was being sent back to orientation. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 2 While the Agency’s decision set forth the allegations as one, we have numbered the incidents as two claims for purposes of clarity. 2021003836 3 CONTENTIONS ON APPEAL Complainant did not submit an Appeal Statement. On appeal, the Agency reiterates the reasoning and conclusion of its decision. It requests that the Commission affirm its finding of no discrimination. STANDARD OF REVIEW 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, 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”). ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC 2021003836 4 Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In claim 1, Complainant alleges that C1 lied when he claimed Complainant had coughed without wearing a face covering and asked her to go home. However, the record reflects that management did not take any adverse action against Complainant. She was not sent home, but rather, was required to put on a mask and completed her shift. Complainant has not shown how she was harmed by C1’s purported “lie”. Complainant contends, in claim 2, that she was sent back to orientation due to her age. S1 proffered legitimate, non-discriminatory reasons for her decision, including multiple reports that Complainant need to better understand how to execute essential components of her job. In one instance, for example, Complainant admitted to momentarily leaving a patient alone in violation of the close observation assignment. S1’s supervisor also attested that S1’s instructions were consistent with common practice under similar circumstances. (ROI, Tab 7-4). While Complainant may have disagreed with S1’s decision, S1 was within her supervisory authority to require Complainant retake orientation training. Complainant has not established that the Agency’s explanation was merely a pretext for age discrimination. Harassment To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). As for Complainant’s assertion that C1 acted sarcastically and childishly towards her, these exchanges do not constitute discriminatory harassment. The Commission has posited that employees may experience unprofessional, inappropriate, and disrespectful treatment. See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018). The alleged incidents here are not sufficiently severe or pervasive to constitute discriminatory harassment. The requirement to wear a mask and retake orientation training, as noted above, were based on legitimate, non-discriminatory reasons. Therefore, we agree that Complainant has not met her burden in showing that she was subjected to unlawful harassment based on her age. 2021003836 5 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. 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. 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. 2021003836 6 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 November 9, 2021 Date