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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003550 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashell S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003550 Hearing No. 460-2019-00170X Agency No. 2003-0580-2018106006 DECISION On May 26, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Health System Specialist, GS-13, at the Agency’s Houston VA Medical Center in Houston, Texas. On October 7, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (Asian), sex (female), color (non-white/non-black), and/or in reprisal for prior EEO activity. Specifically, Complainant identified approximately 94 incidents in support of her claim of an ongoing discriminatory hostile work environment. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). 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. 2020003550 2 Complainant timely requested a hearing. Thereafter, the Agency submitted a Motion for Summary Judgment. Complainant did not respond to the Motion. The AJ subsequently issued a decision by summary judgment finding no discrimination in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission’s regulations allow an administrative judge to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. Summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. See Id. at 249. At the summary judgment stage, the judge must believe the non- moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. See Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. We again note that she submitted no arguments in support of this appeal. We find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. To prove her hostile work environment claim, Complainant must 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. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); 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 (March 8, 1994). 2020003550 3 The Chief (Caucasian, female, white) stated that she did not have any issue with Complainant’s work performance. However, she was concerned that the Position Description (PD) that Complainant was working under was inaccurate and did not reflect her actual duties. The Chief stated she shared her concerns with Complainant about the inaccuracy of the PD, as well as her worry that if it had to be reclassified, it could come back at a lower grade. As a result, the Chief said that she went to Human Resources (HR) for guidance and was informed that the best method, in order to protect the Complainant’s grade and pay, would be to abolish the position and reassign Complainant to another available position in her same grade and pay. The Chief said she took HR’s advice because she felt that it was in the best interest of Complainant. Apparently, however, this caused a significant rift in the work relationship between the Chief and Complainant. The Chief acknowledged Complainant repeatedly told her that she, the Chief, was causing her stress. However, the Chief stated that she had not done anything to her except abolish her former position so she could be reassigned to an equal pay and grade position. Most of Complainant's allegations can generally be described as relating to routine managerial decisions, such as those relating to assignments, time and attendance, work instructions, minor admonishments and overall office organization. Other allegations can generally be described as reflecting personality conflicts, trivial slights, and petty annoyances between a supervisor and employee. In her decision, the AJ determined that the Agency met its burden of producing at least one legitimate, non-discriminatory and non-retaliatory reason for its actions in response to each allegation. The AJ determined that Complainant failed to provide any evidence of pretext with regard to these proffered explanations. The AJ stated that Complainant “instead of providing evidence of discrimination . . . tries to mischaracterize normal work-emails as harassment.” Complainant submitted nothing on appeal to challenge the AJ’s conclusions. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017) (routine work assignments, instructions, and admonishments generally do not rise to the level of harassment because they are common workplace occurrences); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment); Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were found to be insufficient to state a harassment claim). One issue of particular focus by Complainant was the November 2019 denial of a detail to the Office of Health Policy and Planning. The Chief stated that she had actually approved Complainant’s detail request. However, the detail selection needed to be approved by the Associate Director and the Director. They did not ultimately approve the detail because the receiving site would not agree cover part of Complainant’s housing and expenses. Again, Complainant no evidence to suggest that the denial resulted from discriminatory factors rather than legitimate budget concerns. 2020003550 4 The Medical Center Director (Hispanic, brown, male) acknowledged he had limited interactions with Complainant. However, the Director stated that he became aware of Complainant’s allegations of harassment by the Chief and ordered an “unbiased fact-finding investigation” by an official outside of their unit. However, he stated that the investigation did not substantiate Complainant’s allegations of harassment. The image which emerges from considering the totality of the record is that there were conflicts and tensions with the Chief’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment that is not shown to be motivated in some way by discriminatory or retaliatory factors. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the Chief or any other responsible management official was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. 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. 2020003550 5 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. 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. 2020003550 6 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 4, 2021 Date