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

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2020003560 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003560 Hearing No. 461-2019-00076X Agency No. 2003-0629-2018104729 DECISION On May 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 28, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. Complainant worked as a Human Resources Assistant, GS-0203-07, at the Southeast Louisiana Healthcare System facility in New Orleans, Louisiana. Complainant worked under a two-year term appointment that ended in May 2018. Complainant alleged that in June 2018, she learned that a Readjustment Counselor position had been filled. Complainant claimed that management failed to provide her an opportunity to be reassigned into the position. Complainant believed that she was eligible for priority consideration for “whatever positions” were available due to her letters of priority. Complainant’s supervisor, the Human Resources Supervisor (HRS), stated that he was unaware of Complainant’s interest in the position and that an employee was assigned to the position as a reasonable accommodation. 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. 2020003560 2 In June 2018, Complainant provided the Compensated Work Therapy Program Manager (CWTPM) a copy of her resume to apply for a Vocational Rehabilitation Specialist position. Complainant claimed that she gave her priority consideration letter to an HR Specialist. CWTPM did not conduct interviews, but reviewed resumes in making his selection decision. CWTPM sought a candidate with experience dealing with direct patient care, including community networking with employers to help veterans find jobs. CWTPM stated that the majority of Complainant's experience was outside of HR and involved clinical counseling and treatment, which was not the experience he needed for the position. As a result, CWTPM did not deem Complainant to be the best qualified for the position. CWTPM affirmed that the selectee for the position was better suited for the position because she had relevant job experience. The selectee had experience as a case manager/job developer in which she worked to achieve and maintain competitive employment for veterans dealing with substance abuse, alcohol abuse, and severe mental illness through the homeless veterans re-integration program. On August 17, 2018, Complainant alleged that a co-worker, a Vocational Rehabilitation Specialist, told her that CWTPM told employees during a staff meeting that Complainant had filed an EEO complaint against him, “but it was nothing to worry about because she is no longer here.” The co- worker denied that CWTPM mentioned Complainants’ name, and stated that he had only heard of “an EEO allegation” in the meeting and that CWTPM instructed employees to “follow [the Agency’s] EEO policy.” CWTPM acknowledged stating that there had been an EEO complaint filed against him during a staff meeting, but denied he identified Complainant and only mentioned it to keep his staff appraised of what was going on in the program. On September 23, 2018, Complainant filed a formal EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of her disability (long-term residual effects of knee and hip injury) and age (59) when: 1. On June 18, 2018, the Human Resources Supervisor (HRS) and the Compensated Work Therapy Program Manager (CWTPM) failed to provide Complainant with the opportunity to be reassigned into a vacant Readjustment Counselor position; 2. On June 18, 2018, Complainant learned that CWTPM failed to select her for a Vocational Rehabilitation Specialist vacancy; and 3. On August 17, 2018, Complainant learned that CWTPM told his staff that Complainant had filed an EEO complaint against him. At the conclusion of the investigation that ensued, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency issued a final order fully adopting the AJ’s decision. Complainant thereafter appealed. 2020003560 3 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. To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With respect to incident (1), HRS averred that an employee who needed a reasonable accommodation had been placed into the Readjustment Counselor position. The CWTPM averred that the position was not part of his program and consequently, he had no authority over it. IR 146, 166. Regarding incident (2), the nonselection, CWTPM stated that the selectee had the relevant experience he was seeking in terms of helping veterans return to competitive employment. IR 168. As to incident (3), CWTPM and a Vocational Rehabilitation Specialist averred that CWTPM mentioned at a staff meeting that someone had filed an EEO complaint against him, but did not identify Complainant as the one who had done so. IR 120, 171. CWTPM explained that he did so only to keep his staff apprised of everything going on in the unit. The Vocational Rehabilitation Specialist who attended the meeting corroborated that CWTPM only indicated that employees should follow Agency EEO policy. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the Agency's explanations for its actions are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be raised as an issue by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). 2020003560 4 Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). On appeal, Complainant maintains that she was subjected to a hostile environment by HRS, who she contended “blackballed” her from obtaining positions within the medical center for which she was qualified. She also contends, not-withstanding the evidence to the contrary, that CWTPM informed his staff about her EEO complaint and had stated her full name and that the Vocational Rehabilitation Specialist who witnessed the incident lied under oath when he said that CWTPM did not. Beyond these conclusory and speculative assertions, Complainant has presented neither affidavits, declarations, interrogatories, or unsworn statements from witnesses other than herself nor documents which contradict or undercut any of the explanations provided by HRS and CWTPM, which cast doubt upon the veracity of these individuals as witnesses, or which raise a genuine issue of material fact as to the existence of at least one of the indicators of pretext listed above. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. To the extent that Complainant is alleging that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment also fails to raise a genuine issue of material fact. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The existence of a genuine issue of material fact as to the existence of a hostile work environment is precluded by our determination that Complainant failed to raise an issue as to whether any of the actions taken by HRS and CWTPM were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, to the extent that Complainant alleges that CWTPM’s comments at the staff meeting constituted “per se” reprisal, the Commission has held that the actions of a supervisor may be considered “per se” reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id. Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id. (citing Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018)). 2020003560 5 Although the Commission has held that certain acts may constitute per se reprisal, the matter raised in this case does not. Here, the record reveals that CWTPM informed staff that an EEO complaint had been filed against him, but did not identify Complainant as the person who had filed it nor provide any other information. There is no evidence demonstrating that CWTPM attempted to interfere or dissuade Complainant or any other employee from participating in the EEO process. As such, we find that Complainant has not established that the Agency's conduct was per se reprisal. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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. 2020003560 6 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. 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 September 30, 2021 Date