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

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2022000058 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marjorie C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000058 Hearing No. 530-2019-00544X Agency No. 2004-0460-2019103689 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final action concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Associate Chief, Pharmacy Services, GS-0660-13, with the Wilmington VA Medical Center located in Wilmington, Delaware. On June 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on reprisal (prior protected EEO activity) when: (a) on May 16, 2019, the Chief of Pharmacy (Chief), sent her an email threatening disciplinary action for not completing assignments; and (b) on May 18, 2019, Chief met with the Complainant’s supervisor and did not inform her about a meeting or share information from the meeting. 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. 2022000058 2 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 Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter subsequently issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. In addition, the AJ found that there was no evidence of retaliatory animus. Regarding claim (1), Complainant claimed that on May 16, 2019, the Chief harassed her via email, and a phone call, and eventually threatened her with disciplinary action for tasks that were part of Complainant’s previous job and not her current role. Complainant claimed that the Chief had requested data for an upcoming budget meeting. Complainant told the Chief that she could not access the necessary data because she kept receiving an error message and that she advised the Chief to use the data from the previous budget meeting because there was no significant change in the information. The Agency responded Complainant was responsible for completing her data assignment “no later than the seventh of the month.” On the day in question, the Chief acknowledged stopping by Complainant’s desk, then sending an email, and eventually leaving a voice message to make sure Complainant received her initial email message. The Chief stated that she was nervous because she needed to be prepared at any time for the Fiscal Department’s budgetary meeting. The Chief affirmed that when Complainant finally returned her messages, Complainant had deliberately locked the spreadsheets because she claimed the data was her “Personal Intellectual Property.” After consulting with the Agency’s Human Resources Office, the Chief sent an email noting potential disciplinary action because, under the Agency’s Handbook, Complainant could not claim that specific data as “Personal Intellectual Property.” This email discussing potential disciplinary action was sent with the instruction of the Human Resources. With respect to claim (2), on April 18, 2019, the Chief had a meeting with Complainant’s then- subordinate employee, the Clinical Pharmacist Specialist (CPS). Complainant believed that this meeting was further evidence of a hostile work environment because the Chief deliberately called the meeting without inviting Complainant, who was CPS’s direct supervisor. CPS stated that the meeting with the Chief consisted of recapping the responsibilities for the pharmacoeconomic position for which CPS had recently applied and been selected. CPS further stated that Complainant did not ask about what was discussed at the meeting because it was understood that Complainant would no longer be CPS’s supervisor. The Chief concurred in CPS’s characterization of the meeting and noted that she was the selecting official for the position and wanted to make a personal assessment of CPS without any outside influence. The AJ found that Complainant failed to prove that there was any requirement for her to attend. The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to reprisal or a hostile work environment as alleged. 2022000058 3 When the Agency failed to issue a final order within 40 days of receipt of the AJ’s May 6, 2021 decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 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 retaliatory 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 factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was retaliated against by the Agency as alleged. Accordingly, we AFFIRM the final action fully adopting the AJ’s decision. 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. 2022000058 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2022000058 5 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 March 31, 2022 Date