[Redacted], Linn L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 15, 2022

Appeal No. 2021000373 (E.E.O.C. Jun. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linn L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000373 Hearing No. 410-2016-00510X Agency No. 200I-0557-2014102168 DECISION On October 19, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 20, 2015 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant had worked as a Lead Coder, at the Carl Vinson VA Medical Center in Dublin, Georgia. During the period at issue, that began in April 2013, Complainant accepted a promotion to Coding Supervisor, Grade GS-9. Complainant’s direct supervisor became the Chief, Health Administration Services (“HAS Chief”), who was a Caucasian female. The Medical Center’s Associate Director was Complainant’s second-line supervisor who was identified as a Caucasian male. 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 2021000373 On May 22, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases2 of her race (AfricanAmerican) and sex (female), as well as in reprisal for prior EEO-protected activity, when: 1. In January 2014, Complainant was denied training; 2. On March 19, 2014, the HAS Chief informed Complainant that her performance appraisal would be extended an additional three months; 3. On March 20, 2014, the HAS Chief accused Complainant of providing information to a subordinate employee to use in an EEO complaint; 4. On March 21, 2014, the HAS Chief assigned Complainant duties that were outside the scope of her job description; and 5. On May 2, 2014, Complainant was forced to resign her position due to intolerable working conditions. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 12, 2017, motion for a decision without a hearing and issued a decision by summary judgment on September 30, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or unlawful retaliation as alleged. The instant appeal followed. On appeal and through Counsel, Complainant contends that the AJ drew incorrect inferences and accepted managers’ testimony as credible while disregarding witnesses whose sworn statements supported Complainant. Attacking management’s integrity, Counsel stated that the Assistant Director had been investigated for sexually harassing and discriminating against Complainant’s first line supervisor. Meanwhile, Counsel stated the HAS Chief had documented history of unethical conduct including mishandling of veterans medical records and was arrested by local police for an off-duty altercation. According to Counsel, the HAS Chief overburdened Complainant with work that should not have been Complainant’s responsibility. Counsel asserts that Agency management had created a work environment that anyone would have found abusive in that Complainant was often taunted, falsely portrayed, micromanaged and castigated. Counsel accuses the HAS Chief of falsely finding Complainant’s performance deficient and then engineering Complainant’s constructive termination as a result of 2 Because Complainant was 39 years old during the period at issue, the Agency dismissed age as a basis the formal complaint. Complainant did not challenge this Agency decision. 3 2021000373 Complainant assisting a subordinate employee who was filing an EEO complaint against the HAS Chief. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ 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. The U.S. Supreme Court held 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. 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. 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. On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that there are material facts at issue. However, 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, while Complainant has, in a very general sense, asserted that facts are in dispute, she has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute concerning facts that are material to the adjudication of her claim. For the reasons discussed below, 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. Claim 1: Training Regarding Claim 1, Complainant stated that she had requested training from HAS Chief and the Associate Director. The record reflects that in July 2013, the Agency administratively reassigned the Chief, Health Information Management Service (“HIMS Chief”). Thereafter, the HIMS Chief position remained vacant while the HAS Chief served as Acting HIMS Chief, and delegated assignments from that vacant position to Complainant. Complainant attested that she had specifically requested training relevant to policy, procedure and duties relevant to work that would have otherwise been handled by the HIMS Chief. 4 2021000373 The Associate Director stated however, that he could not remember receiving a training request from Complainant. The HAS Chief denied denying Complainant training. In fact, the HAS Chief stated that she had approved coding training for Complainant which was off-site, and authorized compensatory time for Complainant to complete training that was on-site. Claim 2: Extended Performance Evaluation Period and Claim: 4 Additional Assignments We analyze the merits of Claim 2 and Claim 4 in the context of disparate treatment and hostile work environment. To prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must first 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. In the present matter, this means evidencing that the Agency unlawfully considered Complainant’s protected characteristics (race, gender, EEO activity) in its personnel decisions. See Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978). The second 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 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Regarding Claim 2, the HAS Chief stated that the reason Complainant’s performance period was extended was because the supervisor who had hired Complainant into the Coding Supervisor had not provided Complainant with an accurate position description and had not adequately discussed management’s expectations for Complainant’s performance. The Human Resources Officer corroborated the HAS Chief’s justification for the extended performance assessment period. Moreover, the Associate Director testified that two other employees (one African American female and one Caucasian female) had their performance periods extended for similar administrative reasons. Regarding Claim 4, concerning the extra duties, the HAS Chief stated that the extra duties which she assigned to Complainant were commensurate with her supervisory position and were appropriate within Complainant’s position description, Specifically, in addition to her core duties, the position description also provided that Complainant was responsible for “other duties as assigned.” A witness, testifying on behalf of Complainant, gave an unsworn statement indicating that HAS Chief was a demanding and difficult supervisor, not just for Complainant but also for three other supervisors. We presume without so finding that Complainant made her prima facie case in these claims. However, after examination of Complainant’s arguments and the evidentiary record, we are unpersuaded that the Agency’s explanations for Claim 2 and Claim 4 were pretexts masking a discriminatory or retaliatory motivation. Claim 3: Counseled for Providing Subordinate EEO Information 5 2021000373 To prevail on Claim 3, which alleged retaliatory harassment, Complainant she must show that: (1) she engaged in protected activity; (2) she was subjected to a materially adverse action taken by her employer; and, (3) there is a causal connection between the protected conduct and the adverse action; and (4) there is a basis for imputing liability to the Agency. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004 at § II(B)(3) and Note 137 (Aug. 25, 2016). To be “materially adverse”, the disputed action must be sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Retaliation Guidance. Only if both elements are established, a retaliatory motivation and a chilling effect on EEO-protected activity, will the question of Agency liability for reprisal-based harassment present itself. Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). On March 20, 2014, HAS Chief learned that an employee whom Complainant supervised had filed an EEO complaint alleging a discriminatory non-selection based on race. Apparently, Complainant had shared information with this subordinate employee about management deliberations behind the non-selection decision. That same day, after consulting with the Human Resources Officer, the HAS Chief verbally counseled Complainant for communicating with subordinates inappropriately. The HAS Chief described Complainant’s actions as part of a larger problem which included Complainant giving regular supervisory orders to subordinates with a caveat to the effect that HAS Chief instructed or advised Complainant to do so. The HAS Chief expressed general and ongoing concern over Complainant deflecting ownership and responsibility in her role as a supervisor. After a thorough analysis of the entire record, we concur with the AJ that there was not a sufficient nexus between Complainant’s EEO activity and the HAS Chief’s verbal counseling. The record instead reflects that the HAS Chief was finding fault in Complainant’s performance and conduct long before the HAS Chief learned about Complainant informing her subordinate employee about the selection committee’s internal discussions. For example, contemporaneous correspondence showed that HAS Chief began documenting deficiencies in Complainant’s supervision and her performance as early as August 2013. Consequently, we cannot find that the overall evidence supports finding reprisal for Claim 4. See also, Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008) (disclosure of confidential material did not constitute “protected” activity). 6 2021000373 Claim 5: Constructive Discharge There are three elements which Complainant must prove to substantiate Claim 5, which alleged constructive discharge: (1) that a reasonable person in Complainant's position would have found the working conditions intolerable; (2) that the conduct that constituted discrimination against Complainant created the intolerable working conditions; and (3) that Complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016). In the present matter, Complainant has not met the elements needed to prove constructive discharge. As outlined above, the evidence is insufficient to prove that the Agency’s adverse actions were predicated upon unlawful animus toward Complainant’s EEO-protected statuses. As Complainant has not met the elements, we cannot determine that Complainant was subjected to discriminatory constructive discharge. CONCLUSION We AFFIRM the Agency’s final action implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established. 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 7 2021000373 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. 8 2021000373 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 June 15, 2022 Date