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

Equal Employment Opportunity Commission

Oct 13, 2022

Appeal No. 2021005005 (E.E.O.C. Oct. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005005 Agency No. 2003-VI16-2021100586 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 9, 2021, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Human Resources Specialist, GS-13, at the Agency’s VISN (Veterans Integrated Service Network) 16 Consolidated Classification Unit (CCU) in Ridgeland, Mississippi. On January 22, 2021, Complainant filed her complaint, which was amended, alleging discrimination based on race/color (Black/black) and in reprisal for prior EEO activity when: 1. In October 2020, she was subjected to harassment when she was issued a Notice of Proposed Removal. 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. 2021005005 2 2. On December 10, 2020, she was issued a performance rating of “Unacceptable” for Fiscal Year (FY) 2020. 3. On December 23, 2020, she was detailed to the position of Employee Benefits-Employee Relations/Labor Relations. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Regarding claim 1, Complainant’s third level supervisor (S3), Chief Human Resources Officer, indicated that on October 13, 2020, he issued Complainant a Proposed Removal for conduct unbecoming a federal employee and unacceptable performance. Specifically, S3 stated that Complainant disrupted CCU’s January 2020 biweekly meeting held via Skype playing a recorded conversation between Complainant and Director of Information Access and Privacy. S3 indicated that when he asked her to stop playing the recording, Complainant refused to do so. S3 also stated that on June 19, 2020, Complainant was issued a Letter of Expectation/Notice of Significant Performance Deficiency-Accountability Act Warning for her performance deficiency. S3 noted Complainant’s performance regarding her Leaf Cases from December 2019 through September 10, 2020, was unacceptable. The Agency did not subsequently issue a decision to remove Complainant. The record indicates that the Agency conducted a fact-finding investigation regarding a hostile work environment at CCU. After interviewing 11 employees, including Complainant, the fact- finding investigators submitted an April 14, 2020 memorandum finding that Complainant created a hostile work environment by creating a culture of hostility with her confrontational, hostile, and intimidating behavior. Specifically, the investigators found that on January 23, 2020, during the team’s biweekly meeting, Complainant played a recorded conversation she had with the Director of Information Access and Privacy despite her supervisor (S1)’s request to stop multiple times; Complainant continuously talked over S1; and a number of team members felt uncomfortable during the meeting and was threatened by Complainant’s behavior. The record also indicates that the Agency conducted a fact-finding investigation of a September 1, 2020 allegation that Complainant’s Acting Supervisor potentially created a hostile work environment against Complainant. After reviewing all evidence and emails, the investigator submitted a September 23, 2020 memorandum finding no hostile work environment by the Acting Supervisor, finding rather that Complainant failed to comply with the Acting Supervisor’s instruction to classify Leaf Case 2305 as a GS-544, instead of GS-303. Regarding claim 2, S1 stated that she issued Complainant an “Unacceptable” annual performance rating for FY 2020 (October 1, 2019 through September 30, 2020) because she received Unacceptable level of achievement for one (or more) critical element(s). 2021005005 3 Complainant received Unacceptable level of achievement for all three critical elements, i.e., Classification (Technical Competency), Customer Service, and Advice/Guidance. S1 stated that CCU received many complaints regarding Complainant’s work, i.e., Leaf Cases 2154, 2039, and 2110. Specifically, S1 indicated that many managers, including a Senior Strategic Business Partner, indicated the difficulty working with Complainant because she was rude and because she incorrectly classified to a position at a lower grade. The record indicates that on October 6, 2020, S1 conducted Complainant’s progress review indicating her performance as of that date was “Needs improvement to be Fully Successful or better.” Regarding claim 3, Complainant’s second level supervisor (S2) stated that on September 21, 2020, Complainant, pending the outcome of the September 1, 2020 fact finding investigation, described above, requested and was granted a detail out of her Lead Human Resources Specialist (Classification) position to work on Standard Operating Procedures. The September 21, 2020 detail is not at issue. S2 indicated that due to continuing allegations of harassment which were made against and by Complainant in CCU, and based on work volume, S2 issued a December 23, 2020 notice of Detail - Revised Duties. This Detail - Revised Duties was done, according to S2, in order to refine Complainant’s duties in her detail position since the detail would be more than 120 days (in accordance with Agency policy). S2 indicated that Complainant’s duty title, duty station, tour of duty, grade, or pay was not changed due to the detail. Complainant appealed from the Agency’s final decision. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021005005 4 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his 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. 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). Upon review, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. Further, we find that Complainant did not establish discriminatory animus or retaliatory intent. Regarding claim 1, S3 indicated that Complainant was issued a Proposed Removal for conduct unbecoming a federal employee when she played a recording of her conversation with a Director during a team meeting and for her unacceptable performance. Complainant was not issued a removal decision subsequently. Regarding claim 2, S1 stated that Complainant was issued an “Unacceptable” annual performance rating for FY 2020 because she received Unacceptable level of achievements for at least one of her critical elements. Regarding claim 3, S2 indicated that Complainant was initially detailed out from her Lead HR Specialist (Classification) position on September 21, 2020, which is not at issue. Complainant alleged a hostile work environment existed in CCU. The Agency conducted two fact-finding investigations in April and September 2020, concerning Complainant’s harassment claim. 2021005005 5 The investigations concluded no hostile work environment toward Complainant existed; rather, the investigations concluded that Complainant created a hostile work environment toward employees and supervisors in CCU. Considering the foregoing findings and volume of work, on December 23, 2020, S2 issued a notice of revised/refined duties of Complainant’s detail because her detail would be more than 120 days (and such a revision was necessary to maintain the detail beyond 120 days). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for its actions were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021005005 6 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. 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. 2021005005 7 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 October 13, 2022 Date