[Redacted], Lisa M., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020003941 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lisa M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003941 Hearing No. 510-2018-00112X Agency No. 200I-153A-2017102727 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June 16, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND Complainant was employed as a Readjustment Counselor at the Veterans’ Center in Ocala, Florida. On July 3, 2017, Complainant filed a formal complaint of discrimination alleging discrimination based on sex (female) and reprisal when: from March 8, 2017 to August 8, 2017, she was subjected to a hostile work environment with respect to increased workload, assignment of duties, inappropriate comments regarding the death of a family friend, accused of being disrespectful, accused of causing a crisis and inappropriate behavior toward a veteran; told to “shut up and listen” by a coworker; the failure of the Veteran Center Director, A1, to inform her that she had received an award of recognition; and on April 21, 2017, she received a written counseling. 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. 2020003941 2 With regard to her claim that she was given an increased workload and assignment of duties, Complainant stated that she had twenty more cases than her coworker, C1, and that he was given fewer and less complicated cases. A1 stated that Complainant’s workload was heavy because she had clients that had not been seen in 200 to 275 days. A1 stated that the veterans Complainant had not seen for weeks needed to be removed from her workload. She also stated that Complainant had clients from other locations who were not qualified for services or whom she had not seen in months. According to A1, Complainant did not want to let go any of these veterans because it would bring her numbers down. A2, the Deputy District Director, stated that Complainant had a caseload of 95 clients, but this included clients that she had not seen in over 90 days. He indicated that Complainant needed to send follow-up letters to those clients and close out the cases, and not include them as part of her workload. Complainant, A2 maintained, was not following established eligibility criteria for the program, and was not seeing as many veterans as she claimed. During a Clinic site visit March 22 - 23, 2017, A3, Associate Director Clinical/Counseling found that Complainant had 84 cases of which 9 required closure due to being over 60 days inactive; therefore, her total caseload was 75. C1 had 81 cases of which 4 required closure due to being over 60 days inactive; therefore, his case total was 77. According to A3, a report from May 2, 2017, showed that Complainant’s workload was 81 cases, however, there were 13 ineligible participants in her caseload. Thus, her workload was reduced to 63 cases. C1’s caseload was 75 cases at this point. As of May 17, 2017, A3 stated that Complainant’s workload reflected 82 cases. Following the closures of 26 cases, Complainant’s workload was reduced to 56. C1’s caseload was 76 cases. Finally, A3 noted that a report of productivity dated October 1, 2016, thru September 30, 2017, demonstrated that Complainant’s total visits were 1,638, with 14 new veterans, for a visit percentage for FY 2017 of 127%. For the same period, C1’s total visits were 1,905, with 14 new veterans, and his visit percentage for FY 2017 was 148%. With regard to her claim that she was subjected to inappropriate comments regarding the death of a family friend, Complainant stated that after her godfather died, A1 stated, “Well they come in threes; so that’s it for the office.” A1 stated that she remembered sitting down with Complainant and talking with her for a few minutes. A1 stated that she offered her condolences and asked if Complainant wanted some time off. Complainant told her that she did not need any time off from work. A1 maintained that she told Complainant that if she changed her mind, to let her know. She denied making the comment about death occurring in “threes.” With respect to her claim that she was accused of being disrespectful, Complainant alleged that on March 8, 2017, A1 called her “disrespectful” during a discussion of her workload. Complainant stated that she did not believe she was disrespectful because she did not use any curse words or raise her voice but was “being assertive.” With respect to her claim that she was accused of causing a crisis and engaging in inappropriate behavior toward a veteran and told to “shut up and listen” by C1; Complainant stated that some of the veterans had been engaging in inappropriate conversations and using vulgarity while in the office. On this specific day, V1, a veteran/client, spoke to D1, a work study student in the office, about what Complainant considered to be an inappropriate subject. 2020003941 3 According to Complainant, when she heard this discussion, she yelled from her office that the discussion was inappropriate and that it needed to stop. Complainant stated that V1 came to her office to see who made the comment and tried to explain the situation. Complainant stated that she counseled V1. Complainant later spoke to C1, because V1 was his client. Complainant stated that C1 expressed concern “about the veteran dropping out of group,” and that V1 “had a lot going on with his claim being denied.” Complainant stated that she later received a message asking her to call V1. According to Complainant, he advised her that “he was going to drop group [therapy] and [counseling] services.” A1, according to Complainant, told her that V1 was extremely distraught after she counseled him and that he “went home after the event and sat with a ‘six pack and a pistol.’” A1 stated that V1 had severe PTSD and told her “he had never had his butt chewed out the way [Complainant] had done with him.” Subsequently, during a discussion of clinical cases, Complainant stated that C1 again indicated that he was “concerned about [the Veteran] dropping out of group [therapy] and that he had a lot of stuff going on and was emotionally vulnerable.” Also, during the meeting, D1 stated that she “fel[t] Complainant’s intervention [in the situation] was inappropriate.” Complainant stated that she “interrupted [the work study student] and stated I don’t need to take this type of criticism from a work study commenting on my conduct as a clinician, further how does she know what went on in a therapy session. I was told to let her speak and again I stated I did not have to be subject to this.” According to Complainant, “[C1] then stated I needed to be quiet and let her talk.” With respect to Complainant’s claim that A1 had not informed her she had received an award of recognition, the record indicates that the local county court gave her an award, and that A1 was supposed to present it to her but failed to do so.2 Complainant indicated that the award was delivered to the office, but that she did not receive it. A1 stated that the award was sent to the office while she was on leave. A1 noted that Complainant met with one of her groups in the court facility and often stayed at the court after her group was over to watch cases. A1 stated that she had told Complainant that she should come straight back to the facility after the group session to work with more eligible veterans. Consequently, A1 called the Judge’s Assistant and indicated that she thought it might be more appropriate for someone else to give Complainant the award. She asked the assistant to send someone to pick it up, but that had not happened yet. Regarding Complainant’s claim that, on April 21, 2017, she received a written counseling, the record indicates that the counseling was for unbecoming conduct and failure to perform her duties as directed. There were five examples of alleged inappropriate conduct and failure to follow instructions, including the situation with V1. According to the counseling, V1 complained after the incident that Complainant called him into her office, closed the door, and then “laced [him] up one side and down the other.” The counseling stated that, on March 29, 2017, A1 requested that Complainant “inactivate cases that have not been seen for a period ranging from 257 to 49 days,” as “[k]eeping these cases [open] that are not active causes your case load to appear heavier than it actually is. To date, my request has not been completed.” 2 A judge in the court recognized Complainant’s assistance in calming a veteran. 2020003941 4 The counseling also indicated that: on or about April 10, 2017, Complainant indicated that she was not able to manage the same amount of work as her coworker; on or about April 14, 2017, during a staff meeting, she erupted with anger stating that she was “being singled out,” or words to that effect; and on several occasions, A1 requested that she submit to her information Complainant used in groups so that A1 could review it, but Complainant did not provide the information. On April 17, 2017, Complainant filed a rebuttal response which stated, in part, that “due to staffing shortage and busy schedule I did not have time to close more cases out.” After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination and harassment as alleged. The instant appeal followed. The AJ found that Complainant failed to raise any genuine issues of material fact relevant to her allegations of harassment and discrimination which would warrant a hearing. Specifically, the AJ found that when looking at the evidence in the light most favorable to Complainant for purposes of summary judgment, she failed to present evidence of discriminatory animus directed against her because of her sex and/or prior protected activity, and that she did not offer evidence to show that she was subjected to adverse treatment in the workplace sufficient to constitute a hostile working environment. The AJ also found that: [b]eyond Complainant’s conclusory allegations, she has not introduced probative evidence to establish that the cited actions were somehow abusive or offensive or moreover that they were taken in order to harass her because of her membership in any protected class. In this regard, Complainant has not introduced any independent evidence that suggests that proscribed considerations of bias entered into the decision-making processes in these matters or upon which to conclude that the conduct in question was motivated by unlawful considerations as opposed to the reasons proffered by the Agency. Further, Complainant did not point to any specific evidence to raise a question of material fact with regard to the Agency’s articulated explanations and the record presented is devoid of any independent evidence suggesting that management officials acted with any discriminatory or retaliatory animus in these matters. 2020003941 5 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including Complainant’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision 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. 2020003941 6 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). 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. 2020003941 7 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 January 13, 2021 Date