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

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020005081 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvella B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005081 Agency No. 200J-0553-2014-102352 DECISION On August 27, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from final decisions by the Agency dated March 20, 2015 (FAD 1) and July 15, 2020 (FAD 2), concerning her equal employment opportunity (EEO) complaints 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Work Patient Care Specialist, GS 3, at the Agency’s Medical Center facility in Detroit, Michigan. On May 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), age (46 and older at the time of the alleged incidents), sex (female), disability (Post Traumatic Stress Disorder) and reprisal for prior protected EEO activity under a statute unspecified in the record when: 1. From February 24, 2014, Complainant was subjected to harassment; 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. 2020005081 2 2. On February 24, 2014, Complainant’s Supervisor (S1: race and age not provided, no claimed disability) denied Complainant’s request to visit Employee Health; 3. On February 24, 2014, Employee Health refused to treat Complainant; and 4. On September 3, 2014, Complainant was constructively discharged. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and bifurcated the claims on the grounds that claim 4 was deemed a mixed case complaint. The Agency provided Complainant with a notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ dismissed the request due to Complainant’s failure to prosecute her case and remanded the matter to the Agency for the issuance of a FAD (FAD 2) pursuant to 29 C.F.R. § 1614.110. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant failed to establish that the Agency’s alleged actions either involved or were based on her protected bases or that they were severe and/or pervasive enough to constitute harassment. With regard to claim 4, Complainant filed an appeal with the Merit Systems Protections Board (MSPB) which issued a decision dismissing Complainant’s appeal for lack of jurisdiction. The matter was returned to the Agency, which issued FAD 1 on March 20, 2015 finding no discrimination. Specifically, FAD 1 found that Complainant faced removal due to her prolonged AWOL status and an imminent charge of patient abuse and that she voluntarily resigned rather than be fired. 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, at Chapter 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”). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. 2020005081 3 Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination when she alleged that S1 denied her request to visit Employee Health, and when employees at Employee Health refused to treat her. We will also assume, without so finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. We next find that Agency officials articulated legitimate, non-discriminatory reasons for their actions. With regard to S1 denying her request to visit Employee Health, S1 averred that during a conversation wherein S1 questioned Complainant about her absence from her work area: She [Complainant] then told me she needed to go to employee health. I questioned it. I asked her, why did she need to go to employee health? What was - - she went on to say that - - no, I asked her was - - what was wrong, was it an injury or an illness? Because that's part of the questions that we have to ask on the referral sheet. She initially said injury. I asked her what the injury was. She told me it was stress. I told her that that wasn't an injury. She then went and said that it was an illness. I told her that I would allow - - I told her initially no, I was not sending her to employee health. She then said, “Are you denying me the opportunity to go to employee health?” I told her, I'm not denying her to go to employee health, but I would not give her the referral. She left. She went to employee health anyway. I then contacted the union department and also the HR specialist to determine if I had handled that appropriately. They told me that at that point I could not deny an employee to go to employee health but that if there was not any obvious distress I could have told her to wait until the last few hours of her shift and then go to employee health, but that I could not deny her With regard to Complainant being refused treatment by Employee Health, the Supervisory HR Specialist (SHRS: race and age not provided, no claimed disability) averred that Complainant was denied treatment because she did not have a referral from her supervisor. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. 2020005081 4 Following a review of the record we find that Complainant has failed to meet this burden. S1 averred that her refusal to authorize Complainant’s trip to Employee Health occurred immediately after Complainant returned to the workplace after having been absent for over half an hour. While S1 recognized that she should not have been skeptical of Complainant’s claim and denied her request, Complainant has not claimed that her stress should have been readily apparent to S1. S1 denied that her action was based on Complainant’s protected bases and Complainant has not provided sufficient evidence to establish that it was. With regard to SHRS denying Complainant treatment, Complainant acknowledged that SHRS did not know Complainant and hence was not aware of any prior protected activity. Complainant has not shown that other coworkers outside of her protected bases were provided treatment at Employee Health despite having no referral from their supervisors. Nor has Complainant shown that S1 or SHRS harbored discriminatory animus against her protected bases. Hostile Work Environment We note initially that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of hostile work environment may not include the allegations that she was denied a referral slip to attend Employee Health or that Employee Health refused to treat her. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency in those claims were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: on February 24, 2014, another Supervisor2 (S2: race and age not provided, no claimed disability) asked why Complainant was assigned to the floor and stated that Complainant was not qualified for her position; on February 24, 2014, S1 yelled at Complainant for being away from her work area without authorization for thirty minutes; and on June 27, 2014, a Supervisory Human Resources Specialist (SHRS: race and age not provided, no claimed disability) denied Complainant the right to representation at a meeting with management. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or 2 In the record, S2 is described as Acting Associate Chief Nurse as well as Clinical Nurse Manager 2020005081 5 offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on her protected bases. Nor has she described conduct sufficiently severe and/or pervasive to create a hostile work environment. Constructive Discharge Resigning in lieu of termination does not usually create a constructive discharge claim. However, to the extent that Complainant is alleging a constructive discharge, the Commission has a three- pronged test for establishing such a claim. Complainant must show that: (1) a reasonable person in her position would have found the working conditions intolerable; (2) the conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990). The record shows that Complainant was issued a Notice of Proposed Removal dated July 30, 2014, that charged her with being absent without leave since February 26, 2014 and also with failure to follow a direct order when she was ordered to return to work by May 1, 2014 and failed to do so. The record further shows that Complainant resigned on or about September 3, 2014, after having never returned to work. We find that Complainant cannot establish either prong 1 or 2 since, as noted above, Complainant has not shown that the alleged actions created intolerable working conditions or that she was subjected to discriminatory treatment. 2020005081 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred as alleged and we AFFIRM FADs 1 & 2. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 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, 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). 2020005081 7 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. 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 11, 2021 Date