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

Equal Employment Opportunity Commission

Jul 26, 2021

Appeal No. 2020002503 (E.E.O.C. Jul. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashawna C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002503 Agency No. 200H-0528-2019103258 DECISION On February 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2020 final decision (FAD) 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination and a hostile work environment based on her race, sex, color, and in reprisal for her protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Worker at the Agency’s Medical Center in Buffalo, New York. On June 7, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (African 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. 2020002503 2 American), sex (female), color (brown), and reprisal for prior protected EEO activity (union related activity) when2: 1. on or about April 2019, Complainant’s credentialing process for updating her license status to Licensed Clinical Social Worker (LCSW) was delayed unnecessarily; 2. Complainant requested to attend the Health Equity Conference held on April 23, 2019, but it was denied due to staffing issues; 3. on April 26, 2019, Complainant was terminated during her probationary period; and 4. between November 2018 and April 26, 2019, Complainant was subjected to unfair caseloads, false accusations, delayed approval for training, and insufficient supervision. Additionally, management was non-responsive to her emails, failed to recognize her accomplishments, cancelled meetings, and failed to timely provide information which Complainant requested pursuant to the Freedom of Information Act (FOIA)3. On July 25, 2019, the Agency issued its Notice of Partial Acceptance. The Agency accepted claims 1, 3, and 4. Regarding claim 2, the Agency stated that Complainant filed a union grievance regarding the matter, which subsequently led to her being approved to attend the training. The Agency determined that claim 2 would be dismissed as an independently actionable claim pursuant to 29 C.F.R. §1614.107(a)(4) for raising the matter with a negotiated grievance procedure, and 29 C.F.R. §1614.107(a)(1) for failure to state a claim. However, it noted the matter of management delaying the approval for training would be included for consideration in the analysis of the harassment claim. 2 The Commission re-ordered the claims in chronological sequence for ease of reference. 3 The Commission has held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations. Grigal v. Dep’t of the Navy, EEOC Appeal No. 01A34042 (July 20, 2004) req. for recons. denied EEOC Request No. 05A41153 (Sept. 15, 2004) (finding that complainant's reprisal claim alleging that he did not receive a timely response to his FOIA request is not within the purview of the Commission's regulations); Gaines v. Dep’t of the Navy, EEOC Request No. 05970386 (June 12, 1997). Complainant's claim with respect to management’s participation in the processing of her FOIA request fails to state a claim within the purview of the EEOC regulations at 29 C.F.R. § 1614. See also Complainant v. U.S. Postal Serv., EEOC Appeal No. 07A50037 (Aug. 26, 2005). 2020002503 3 The investigative record reflects the following pertinent matters relating to the subject claims. The Supervisory Medical Social Worker (RMO14) was Complainant’s first line supervisor. The Social Work Executive (RMO2) was Complainant’s second line supervisor. Claim 1 Complainant stated that she submitted her packet to the Risk Management/Credentialing and Privileging team in February 2019, where a committee would review her packet for credential renewal and upgrade. Complainant alleged that RMO2 intentionally delayed the processing of her credentials packet. Complainant also noted that at some point, RMO2 informed her that she could no longer go to the Risk Management/Credentialing and Privileging team to inquire about the status of her credentials because of her “inappropriate behavior” but Complainant was never apprised of what she had done wrong. Complainant believed that the delay was intentional disrespect by management. RMO2 denied influencing the credentialing process. RMO2 acknowledged that there were minor delays in processing Complainant’s credentialing packet. However, RMO2 stated that the delays were due to the Agency’s Personnel’s concerns regarding gaps in Complainant’s work history, termination from two previous employers, and the veracity of some of the information which she submitted. Additionally, Personnel had difficulties reaching one of Complainant’s references. RMO2 noted that the Risk Management/Credentialing and Privileging team found Complainant’s repeated inquiries and her behavior to be inappropriate. RMO2 noted that Complainant was informed of this during a meeting on April 18, 2019. Lastly, RMO2 noted that she has no influence over the credentialing process, which is handled by a separate division within the Agency. Claim 3 On November 25, 2018, Complainant was hired with a one-year probationary period. Following concerns of Complainant’s workplace conduct and performance, RMO1 provided Complainant with a Letter of Expectation on December 20, 2018. The letter outlined all the expectations of her position, including assignments, tour times, and more. The letter welcomed Complainant to come forward if she was experiencing any difficulties that might affect her work. On April 18, 2019, RMO1, RMO2, and a union representative met with Complainant to discuss concerns management had with Complainant’s workplace conduct and performance. RMO1 noted that she also met with Complainant to further discuss concerns and suggestions for improvement on April 19, 2019. On April 25, 2019, RMO1 and ROMO2 terminated Complainant during her probationary period. The termination letter stated that Complainant was terminated due to unacceptable conduct and performance. 4 Responsible Management Official (RMO). 2020002503 4 Human Resources informed management that a union representative was not required for the termination meeting. RMO1 and RMO2 stated that Complainant was terminated during her probationary period due to multiple written complaints regarding her workplace conduct. They noted that the complaints included issues related to Complainant’s communication style and conduct which were adversely affecting patient care. The record demonstrated that Complainant was counseled on these issues and failed to correct her conduct. Complainant insisted that she was meeting the requirements of the job and was not informed of any deficiencies. Claim 4 Complainant asserted that she was subjected to unfair caseloads, false accusations, delayed approval for training, and insufficient supervision. Additionally, she alleged that management was non-responsive to her emails, failed to recognize her accomplishments, cancelled meetings, and failed to timely provide information which Complainant requested pursuant to her FOIA requests. This claim also centered around a meeting on April 18, 2019, that RMO1, RMO2, a union representative, and Complainant had regarding workplace conduct and performance issues. RMO1 and RMO2 denied that the incidents had any connection to Complainant’s protected classes. RMO1 and RMO2 noted that Complainant was eventually approved for training, but that the initial delay was only due to operational needs, and not Complainant’s protected classes. In terms of training, RMO1 and RMO2 asserted that the training level provided was appropriate to Complainant’s position and skills. RMO2 agreed that Complainant had a high patient caseload but asserted that part of the position was learning to balance the workload. RMO1 and RMO2 stated that the other claims involved general operations and had nothing to do with Complainant’s protected classes or EEO activity. 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). 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. CONTENTIONS ON APPEAL Complainant submits a variety of documents on appeal but fails to explain the reasons for her appeal. In response, the Agency asserts that its FAD addressed all of Complainant’s claims and appropriately determined that Complainant failed to prove that the Agency subjected her to a hostile work environment or discrimination as alleged. The Agency requests that the Commission affirm its FAD. 2020002503 5 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 As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Id. at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision to procedurally dismissal claim 2. Accordingly, we will not address the claim on appeal. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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, n. 13; 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, 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. 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 its actions, 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 Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2020002503 6 For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, there is no evidence that management intentionally delayed Complainant’s credentialing process. Instead, the record demonstrated that the Risk Management/Credentialing and Privileging team, a separately managed team, had several issues with processing Complainant’s credentials that delayed the process. There is no evidence that management, or the Risk Management/Credentialing and Privileging team, intentionally delayed Complainant’s credentialing based on her protected classes or in reprisal. Regarding Complainant’s termination, RMO1 and RMO2 both detailed that Complainant’s termination was due to her workplace conduct and performance. The record contained evidence of various performance concerns that RMO1 and RMO2 had of Complainant. While Complainant asserted that these reasons were pretext and part of management’s generally false accusations against her, she provided no evidence to support her contentions. We note that as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such as reassignment, position description updates, and evaluations, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). The actions alleged to be discriminatory were routine managerial actions to which Complainant failed to demonstrate were conducted with discriminatory or retaliatory animus. Hostile Work Environment Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct; (3) the harassment complained of was based on her statutorily 2020002503 7 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. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). In her harassment claim, in addition to the events addressed above, Complainant generally alleged that RMO1 and RMO2 subjected her to a hostile work environment by: providing her with an unfair caseload; falsely accusing her of a variety of misdeeds; intentionally delaying approval for training; insufficient supervision; being non-responsive to her emails; failing to recognize her accomplishments; canceling meetings; and more, as asserted in claim 4. However, to prove her harassment claim, Complainant had to 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. Furthermore, Complainant had to prove that the conduct was taken because of a protected basis - in this case, her race, sex, color, and EEO activity. In this matter, Complainant only generally asserted that the incidents alleged in claim 4 were connected to her protected classes or EEO activity. Complainant did not provide any evidence to demonstrate a connection between the alleged incidents and her protected bases or EEO activity. Accordingly, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the action taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 finding of no discrimination. 2020002503 8 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. 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). 2020002503 9 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 July 26, 2021 Date