[Redacted], Kristy E, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020002915 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristy E,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2021002881 Appeal No. 2020002915 Hearing No. 420-2015-00004X Agency No. 2003-0586-2014-100250 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002915 (April 5, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as the Associate Director for Patient Care Services at the Agency’s facility in Jackson, Mississippi. On December 9, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), disability, and age. 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 2021002881 By letter dated January 2, 2014, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. To date, management has failed to act upon her request for reasonable accommodation, which she submitted on September 30, 2013; and 2. On August 8, 2013, management denied her request for backpay, which she submitted on July 16, 2013. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On November 25, 2014, the AJ granted Complainant’s Motion to Amend the formal complaint to include the following claim: 3. Whether the Agency discriminated against Complainant based on her age, disability, race, sex, and in reprisal for EEO activity when on March 5, 2014, the Agency notified her that she would be discharged from employment with the Agency effective March 10, 2014, forcing her to retire under duress on March 7, 2014. The Agency submitted a Motion for a Decision Without a Hearing, which Complainant opposed. The AJ subsequently issued summary judgment in favor of the Agency. On February 4, 2020, the Agency issued its final order adopting the AJ’s finding that Complainant failed to provide discrimination as alleged. Complainant filed an appeal. In EEOC Appeal No. 2020002915, we affirmed the Agency’s final order adopting the AJ’s decision reasoning that “the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.” Complainant filed the instant request for reconsideration. Complainant asserts that OFO’s initial decision did not address claim (3) and thus her complaint should be remanded for a hearing. In response, the Agency asserts Complainant has not shown that the instant matter meets the criteria for reconsideration. A claim of disparate treatment 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 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. See 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. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 3 2021002881 Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The prior decision did not expressly reference claim (3). However, we find that our prior decision properly found no discrimination with respect to this claim.2 We find that the Agency articulated legitimate, nondiscriminatory reasons for issuing a decision to remove Complainant. The record contains a copy of the Proposed Removal for Complainant dated January 3, 2014. Therein, an Agency Official sets forth numerous charges/reasons which warrant Complainant’s removal. The record reflects that Complainant provided a response to the proposed removal. The record also reflects that the Agency’s Administrative Investigation Board (AIB) conducted an investigation on various issues regarding Complainant. The report by the AIB found, in pertinent part, that Complainant stored packaged clinical supplies in her office, failed to turn in unusable medical equipment and various medications and improperly maintained them in her office. In a memorandum to Complainant dated March 5, 2014, an Agency official sustained numerous charges that were set forth in Complainant’s proposed removal and planned to terminate Complainant effective March 10, 2014. The sustained charges included misusing the official time of a subordinate employee, improper possession of medication, leaving the work site without approved leave, and negligence in performance of her duties on various occasions. We further find that Complainant failed to establish that the Agency’s reasons were pretext for discrimination. While Complainant may have disagreed with the findings of the AIB and the determination of the Agency to sustain numerous charges set forth in the proposed removal, this is insufficient to establish pretext. The record is devoid of evidence that the AIB’s findings or the Agency’s determination to sustain numerous charges in the proposed removal were due to discrimination. 2 Complainant, in her request for reconsideration, expressly contests OFO’s initial decision regarding claim (3) only. Thus, we decline to further address claims (1)-(2) in this decision. 4 2021002881 The central question in a constructive discharge/retirement claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). We conclude that a finding of constructive discharge is precluded by our finding that Complainant was not subjected to discrimination when the Agency issued its decision to remove Complainant. We find that Complainant failed to show that she was forced to involuntarily retire because of her working conditions. Thus, we find that Complainant has not established that she was constructively discharged/retired. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020002915 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 5 2021002881 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 August 3, 2021 Date Copy with citationCopy as parenthetical citation