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

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020004792 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martine L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004792 Hearing No. 430201600429X Agency No. 200403182016100174 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s July 9, 2020 Final Order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency through the Pathways Recent Graduates Program (“Pathways”) as a Vocational Rehabilitation Counselor (“VRC”), GS-11, Veterans Rehabilitation and Employment (“VR&E”) at Fort Bragg in North Carolina. On November 25, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (Native American) and reprisal (prior EEO activity) when, on September 23, 2015, the Agency terminated her employment by opting not to convert her to full-time competitive status when her Pathways appointment expired. 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. 2020004792 2 The Agency accepted the complaint and conducted an investigation. In summary, the evidence developed during the investigation showed that on September 23, 2013, Complainant was one of seven VRCs beginning two-year appointments through the Pathways Recent Graduate Program. On September 23, 2015, the Agency would have the option to noncompetitively convert their appointments to career status, as provided 5 C.F.R. § 362.205 (b)(1). To be eligible for conversion, the Pathways participant must meet several criteria, such as, “maintain[ing] acceptable performance under the Agency’s approved performance management system.” 5 C.F.R. 362.204. Even if a Pathways participant meets the criteria and is deemed eligible, the Agency is not obligated to convert them to career status. Id. Complainant’s first level supervisor (“S1,” Caucasian/White) was a Vocational Rehabilitation and Employment Officer (“VREO”). In June 2015, S1 resigned, and Complainant reported to an Acting Supervisor (“AS,” Caucasian/White) for the remainder of her employment with the Agency. AS was also a VREO, and she was married to S1. Complainant’s second level supervisor (“S2,” African American/Black) was a GS-14 VREO at the Regional Office. In a July 3, 2014, Individual Progress Review for April to May 2014, S1 praised Complainant under the “Achievements” section, stating, Complainant “is doing an outstanding job with the inactive team. She has identified inactive 03 closures, pre MRGs and rehabs. [Complainant] has contributed a great deal to the Fort Bragg team regarding customer service, teamwork, and continues to maintain EP days below the national average. Under “Areas for Improvement” Complainant “needs to continue improving on VA ONCES certification and timely processing in BDN to ensure timely delivery of the subsistence allowance for Veterans in RTE status.” Complainant’s annual performance review indicates that this was resolved. On November 12, 2014, S1 issued Complainant an overall performance rating of “Excellent” for Fiscal Year 2014 (“FY14”). Complainant received an “Exceptional” for all of her elements except for the non-critical element of Acquisition Process, where she received a “Fully Successful.” S1 provided highly positive feedback for each element, and noted, Complainant’s “continued support for management by assisting with the inactive team is to be commended.” Complainant describes her working relationship with S1 to this point as “good,” but also “uncomfortable.” S1 regularly visited her in her office, and they discussed both work and personal matters. However, S1 also entrusted Complainant with the code to access her and her coworkers’ cases to conduct quality assurance, a supervisory duty. Also, S1 confided in her about one of her coworkers (“C1,” African American/Black) who named S1 as a responding management official (“RMO”) in an EEO complaint.2 2 Tyree L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001222 (Apr. 29, 2020) (Affirming AJ’s damages award), EEOC Hearing No. 430201500369X (Sept. 28, 2018) (finding complainant proved retaliation for protected activity by S1 and AS, when, among other things, the Agency declined to convert his Pathways appointment, as the Agency’s reason of performance was not supported in the record) (Agency No. 200403182015100824). 2020004792 3 When C1 formally filed the complaint in or around September 2014, the Agency reassigned him from S1 to AS as his first level supervisor. He amended his complaint to include AS as an RMO in or around January 2015, when, despite his strong performance record, AS initiated the performance improvement plan (“PIP”) that she later cited as her reason for not converting C1’s Pathways appointment. On December 18, 2014, a supervisor (“S3,” African American/Black) from the Regional Office visited and interviewed Complainant and others regarding C1’s allegations. Complainant and another coworker (“C2,” African American/Black) both provided statements. Afterward, Complainant learned that S1 expressed to others in the office that he felt “betrayed” by Complainant and C2 and alleged that they lied about him in an effort to get him fired. S1 started bypassing Complainant’s office to visit her Pathways coworker (“C3,” Caucasian/White), who did not provide a statement for C1’s EEO complaint. Another Pathways coworker (“C4,” Caucasian/White) allegedly warned Complainant that S1 was trying to “find something on her.” Complainant alleges that following the EEO interview, S1 began monitoring her arrival and departure times more closely, yet ignored her emails and calls when she asked for assistance. In one instance, she said he humiliated her by attempting to send her home for dressing “inappropriately,” a first after nearly a year and a half reporting to him. The Union and upper management determined that S1’s response to Complainant’s attire was inconsistent with Agency protocol, which only required a warning. Complainant recounts that on unspecified dates, S1 offended her culturally by saying that she had a “pack” mentality and that she, C1 and C2 were like a “pack of wolves.” C4 testified that “there was constant friction between [S1] and the entire 6th floor” meaning the Pathways participants, who had become very close. In January and April 2015, Complainant filed grievances through the Union alleging that S1 was creating a hostile work environment. On May 15, 2015, S1 issued Complainant’s Midyear Review for FY15. The review lacked the praise of her FY14 review. However, Complainant received “Fully Successful” on all of her essential and non-essential elements. The essential elements, Production, and Quality both had the phrase “with concerns” typed near the “Fully Successful” rating. Complainant alleges that S1 did not write any comments on C3’s Midyear Review, instead, he asked her to sign a blank form, which he also signed. In June 2015, S1 resigned and SA became Complainant’s first line supervisor. The Agency had just rolled out new metrics for rating VRCs. AS testified that she noted Complainant was underperforming. Although AS did not place Complainant on a PIP, as she did C1, AS testified that she did not do so because there would not be enough time to implement a PIP before Complainant’s Pathways appointment concluded. On June 9, 2015, Complainant appeared as a witness in C1’s EEO proceeding, where both S1 and AS were named RMOs. AS claims that the June 9, 2015 proceeding was the first time she learned of Complainant’s protected activity. 2020004792 4 On July 23, 2015, AS met with Complainant to close out old VRE standards and issue new VRE performance standards, and informed Complainant that there were performance concerns related to production and quality. AS issued Complainant a Summary Rating for the period of October 2014 through June 30, 2014, where Complainant maintained her overall rating of Fully Successful. The Notes state that under “Quality” Complainant is “not meeting overall quality element, meeting only one of three measures, fiscal accuracy improved but continues to be more than 10% away from target.” For “Production” not meeting overall production element, meeting none of the three measures, has shown no improvement in increasing Rehabs/Positive Outcomes despite notification of need for improvement.” In August 2015, AS pulled 7 of Complainant’s cases for quality assurance reviews. Complainant never had so many cases pulled at once, nor had her Pathways coworkers. C2 testified that typically VRCs had 3 or 4 cases pulled for review each month, so “7 did seem to appear unusual.” Complainant alleges that AS avoided her and would not respond to her questions. As a result, she had no opportunity to respond to AS’s comments on the 7 cases she reviewed. On September 10, 2015, Complainant was issued a Notice of Expiration of Appointment and Non-Conversion. C2, who provided testimony on C1’s behalf was converted to a full time employee. C3, who did not engage in any activity, yet allegedly had a lower workload and higher rate of errors and complaints than Complainant, was also converted. AS did not conduct a quality review of any of C3’s cases the month before deciding to convert her to Pathways appointment to permanent employee status. After its investigation into the complaint, 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 “the Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. On May 12, 2020, the AJ assigned to Complainant’s case determined that there was no genuine issue of material fact and issued a Notice of Intent to Issue a Decision Without a Hearing (“NOI”). After considering responses to the NOI from both Complainant and the Agency, the AJ issued a decision by summary judgment in favor of the Agency on June 8, 2020. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. 2020004792 5 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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. A claim of disparate treatment based on indirect evidence, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the Agency’s legitimate nondiscriminatory reason for its decision not to convert Complainant’s Pathways appointment to a permanent position was her “performance as it relates to production and quality.” As the deciding official, S2 reasons that Complainant’s May 15, 2015 Midyear Review demonstrated “unacceptable” performance under the old performance standards, and that her third quarter review, dated July 23, 2015, showed that Complainant’s performance was “still unacceptable” under the new national performance standards. Among other things, S2 noted that Complainant did not meet the production element requiring minimal to no supervisory review at the GS-11 level. 2020004792 6 Complainant asserts that a question of fact exists regarding the Agency’s characterization of her performance. Complainant’s “Excellent” FY14 Review, which S1 issued prior to Complainant’s EEO activity, demonstrated Complainant’s competence and abilities. S1’s effusive praise included for FY14 Element 2, Claims Processing, “[Complainant] was exceptional in all performance standards regarding E/P days and days to entitlement. This is evidenced by [Complainant] exceeding her performance standards by 44 days for E/P and her days to entitlement by 20 days. By exceeding these standards, [Complainant] was able to provide timely and accurate services to veterans and service members.” For Element 3, Quality of Work, Complainant received a 95.6% for Accuracy of Evaluation, Planning and Rehabilitation Services, and 100% on both Accuracy of Entitlement Determination and Fiscal Accuracy. S1 commented that Complainant “provided exceptional quality work by exceeding all standards. This is reflected by her exceeding all required standards. [Complainant] exceeded EPRSA by 14%, entitlement determination by 10% and fiscal accuracy by 15%. For her May 15, 2015 “Fully Successful” Midyear Review, issued six months after S1 became aware of Complainant’s EEO activity, S1’s tone is markedly changed. However, the FY14 appraisal was based on a GS-9 performance standard, whereas the May 15, 2015 Midyear Review was for a GS-11. Also, in May 2015, Complainant had one valid complaint (VRCs were allowed a maximum of 4 valid complaints), compared with none in FY14. Complainant was informed that she needed to improve her numbers for Rehabs and Positive Outcomes. Complainant’s “Fully Successful” summary rating for October 2014 through June 2015 was issued by AS on July 23, 2015, a month after Complainant participated in C1’s EEO Proceeding where AS and her husband were involved as management officials. AS applied new VRE performance standards, and informed Complainant that there were performance concerns related to her production and quality. The record contains an unsigned summary showing that Complainant had 80% active cases with Positive 0 JRD 1, whereas the Target is 85%, Positive 4, and JRD 1. Under “Timeliness” Complainant had 94.5 and Ent of 20.4, where the Target EP was 110 and Ent was 45. Under Quality, Complainant received 58% EPRSA, FA 75% and Entitlement 100%, where the Targets were 83%, 90% and 96%. Based on the metrics, Complainant did not fully meet the “Quality” element, and she did not meet the “Production” element. AS comments that Complainant had been notified that she needed to improve her Rehabs and Positive Outcomes, but she had not improved. However, AS noted that Complainant was meeting both measures for the “Timeliness” element. She has not provided any evidence to contradict the statistical analysis of her performance, which indicates that she was performing below the targeted quality and productivity goals. For purposes of establishing pretext, comparative evidence relating to other employees is considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the employees' work situation are identical or nearly identical, i.e., the employees report to the same supervisor, perform the same job function, work during the same time periods, and, in instances where the Agency is responding to “problem conduct” (e.g. attendance deficiencies), engaged in the same conduct. See Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2020004792 7 2001); Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000); See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002). Complainant, C1, C2, C3, and C4 all started work as Pathways VRCs at the same time, reported to the same supervisors and worked closely together on the same types of assignments, graded by the same metrics throughout the two year appointment.3 C1 initiated an EEO complaint in July 2014, and both Complainant and C2 were interviewed as part of a fact finding inquiry in December 2014. C2, C3, and C4 were all converted to full time competitive VRC employment status at the end of their appointments on September 23, 2015. S2 declined to convert Complainant and C1, citing performance issues. As evidence of disparate treatment, Complainant repeatedly cites how AS subjected her to 7 quality assurance checks in August 2015, even though the typical number of quality assurance checks she and the Pathways VRCs was 3 or 4 per month, and one off her proffered comparators, C3, did not receive any quality assurance checks in August 2015. However, the record reflects that August 2015 was the only month were Complainant was subjected to an above average number of quality assurance checks. Significantly, this isolated incident of AS reviewing additional examples of Complainant’s work product occurred shortly before AS had to decide on whether to convert Complainant’s Pathways appointment. Complainant argues that the instant complaint is “remarkably similar” to C1’s EEO complaint, where an AJ found that the Agency subjected C1 to reprisal for engaging in EEO activity. Complainant and C1 were both GS-11 VRCs under the same Pathways appointment, with first level supervisors (and alleged RMOs) S1, and AS. Complainant and C1 were denied conversion to permanent employment by the same recommending and deciding officials (AS and S2) with the Agency’s stated reason being their performance. Both allege that upon learning about their EEO activity, AS and S1 exhibited a different demeanor toward them and scrutinized their attendance and performance to a greater degree than their coworkers. The AJ assigned to C1’s case determined that the January 2015 PIP, issued shortly after AS learned of his EEO activity, was not warranted given that he received a “fully successful” annual review only a few months before, and had no history of performance issues. The AJ commented that “the timing of AS’s criticism of C1’s performance is suspicious at a minimum.” Further evidence of pretext included an unwarranted “avalanche” of performance-related emails from AS and an April 1, 2015 Letter of Warning that had the effect of extending C1’s PIP. The AJ noted C1’s “long term work experience” assisting veterans and his credible testimony demonstrated that he was “competent,” and the alleged “performance deficiencies,” were pretext for retaliation. 3 S2 testified that seven Pathways employees were hired together and of them, four were converted to full time competitive status, however, C1, C2, C3 and C4 were the only participants who were interviewed for the record. 2020004792 8 Also, the AJ found that S1 or AS actively sabotaged C1’s performance ratings by instructing customers not to contact him and penalizing him for benign or subjective customer complaints. Complainant’s only valid customer complaint concerns a delayed payment to a veteran is supported by email evidence. Otherwise, S1 and AS regularly praised Complainant’s customer service skills, in her performance appraisals and in her quality checks, even those containing errors. Unlike C1, Complainant has not been subjected to a performance-related “avalanche” of emails, disciplinary action, or overt efforts to undermine her customer service. Rather, Complainant is alleging nearly the opposite, that the Agency never informed her that she had to improve her performance, and she had a “Fully Successful” overall performance rating. The Agency has demonstrated from notes on her performance reviews, email exchanges with AS, and her quality checks that Complainant was notified that she needed to improve her performance. With respect to quality assurance checks, C1 received a significantly higher proportion of quality assurance checks, at 55 over a period of two years, whereas C3 received 27 over two years. Complainant’s total amount of quality assurance checks was not provided in the record. However, Complainant, C2 and C4 all testify that on average, three or four cases per month are pulled for each VRC. Complainant receiving 7 quality checks on one occasion is not comparable to C1’s case, as evidence of discriminatory or retaliatory intent, nor is it sufficient to establish a question of material fact regarding AS’s motivations. AS’s comments on the 7 cases do not reveal any egregious errors by Complainant. Complainant has not shown that C3, or any of her Pathways coworkers were similarly situated in that they below the target when AS pulled more of her cases for review than theirs. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. CONCLUSION Accordingly, the Agency’s Final Order adopting the AJ’s decision 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. 2020004792 9 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. 2020004792 10 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 September 21, 2021 Date