[Redacted], Maryanne S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Aug 24, 2022

Appeal No. 2021000652 (E.E.O.C. Aug. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maryanne S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021000652 Hearing No. 460-2020-00040X Agency No. 2003-0580-2019102899 DECISION On November 2, 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 October 6, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cat Scan/Interventional Technologist in Radiology Services at the Agency’s DeBakey VA Medical Center (VAMC) in Houston, Texas. On May 2, 2019, Complainant filed an EEO complaint alleging, as amended, that the Agency subjected her to hostile work environment harassment on the bases of her race (African American), sex (female), and in reprisal for prior protected EEO activity (prior EEO complaints) when: 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. 2021000652 2 1. On August 13, 2017, the Cat Scan Supervisor (S1) refused to give Complainant information on a fact-finding inquiry regarding aggressive behavior of a coworker (CW1). 2. On April 24, 2018, S1 changed Complainant’s tour of duty. 3. Since May 2018, S1 denied Complainant overtime. 4. On May 15, 2018, the Chief X-Ray Supervisor (S2) instructed Complainant not to call him on his personal cell phone with Agency business. 5. On May 17, 2018, management falsely accused Complainant of filing a false workers’ compensation claim (for electrocution by a machine). 6. Since May 17, 2018, management instructed Complainant to continue to use a faulty machine (an injector) although she was injured by it and a Bio Med Tech stated that he shut it down and it was in need of repair. 7. In June 2018, management looked at Complainant’s complaint with extreme skepticism. 8. On July 8, 2018, Complainant informed the Radiology Chief (S3) that CW1 was waiting outside of the emergency room for Complainant to exit the building so that she could harm her. 9. On September 7, 2018, S1 described Complainant’s work negatively, interrupted her several times as she performed a cat scan on a difficult patient, and accused Complainant of not wanting to perform her work. 10. On September 7, 2018, S1 slammed his hand down on a counter and yelled at Complainant for 15 minutes while she was on the phone and stated that he was upset with her for her complaints. 11. On September 10, 2018, CW1 entered the patient waiting area yelling at Complainant. 12. On October 18, 2018, Radiology Director (S4) informed Complainant that the reasonable accommodation documents she submitted on July 4, 2018, were never received.2 2 During the investigation, Complainant stated that disability is not a basis of her complaint and she requested accommodation to work a different schedule than a coworker who was harassing 2021000652 3 13. On October 19, 2018, an Ultrasound Technician threatened Complainant by yelling in front of others that she would “slap the shit” out of Complainant in the parking lot. 14. On January 7, 2019, management issued Complainant a lower than expected performance appraisal rating. During the EEO investigation, for (1), (9), and (10), S1 denied Complainant’s allegations. For (2), S1 stated that management changed the tour of duty of both Complainant and CW1 due to Complainant’s claims against CW1. S1 stated that changes were made to allow for adequate patient care coverage. Regarding (3), S1 stated that all staff are emailed overtime availability with a deadline by which to reply and then those who reply to requested overtime are scheduled. As to (14), S1 stated that he rated Complainant as “fully successful” and that it was difficult to rate her performance because she called in absent so frequently. As to (4), S2 stated that he has an Agency-issued phone and he instructed staff to call him on that for business. Regarding (5) and (6), S2 stated that Complainant alleged that she was shocked by a Medrad Injector so Bio-med and the Occupational Safety and Health Administration (OSHA) were informed and came out to inspect the machine. S2 stated that OSHA found the Injector safe to use and returned to service. For (7), S2 stated that Complainant was disrespectful to a management official and disciplinary action was requested and a suspension determined. With regard to (8), S2 stated that CW1 was waiting for a ride home and there was no evidence that she was waiting for Complainant to exit. The Radiology Chief, S3, also stated that CW1 was in the vicinity of the VAMC, but Complainant’s claim was not substantiated. S3 stated that Complainant and CW1 were instructed to stay away from one another. For (13), S2 stated that witnesses alleged that Complainant was the aggressor toward the other employee and police were called and arrived regarding the matter. The Radiology Director, S4, stated that Complainant informed her that she left reasonable accommodation documents for her while she was on vacation. S4 stated that she did not receive them and the employee with whom Complainant stated she left the documents was no longer with the Agency. S4 stated that Complainant asked that she change her absence without leave to leave without pay but she could not do so due to the late timeframe. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined that genuine issues of material fact did not exist, and the complaint did not warrant a hearing. On October 1, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding neither discrimination nor unlawful retaliation was her - CW1. She noted that her mother has a disability and she provides care for her, so she works a compressed schedule. 2021000652 4 established. The AJ stated that the incidents alleged did not rise to the level of a hostile work environment and Complainant failed to establish that they were based on discriminatory motives. The AJ determined, “the agency’s actions reflect the sort of ordinary management actions, or trivial slights and petty annoyances, the Commission has concluded are insufficient to constitute prohibited harassment.” Citing see Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). In addition, the AJ found that the Agency took prompt, corrective action to address Complainant’s concerns with coworkers, and that Complainant failed to establish pretext. 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 from Complainant 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. 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. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or 2021000652 5 condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her discriminatory hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The management witness denied Complainant’s allegations for (1), (9), and (10) and there is no other evidence to support Complainant’s version of events. As to (2), management witnesses explained they changed the tour of duty for both Complainant and CW1 due to Complainant’s claims against CW1, and that changes were made to allow for adequate patient care coverage. Regarding (3), the Agency stated that all staff are emailed overtime availability with a deadline by which to reply and then those who reply to overtime availability are scheduled. As to (4), the management witness stated that he has an Agency-issued phone and he instructed staff to call him on that for business. Regarding (5) and (6), management witnesses stated that Complainant alleged that she was shocked by a Medrad Injector so Bio-med and OSHA were informed and came out to inspect the machine. The Agency stated that OSHA found the Injector safe to use and returned it to service. For (7), management witnesses stated that Complainant was disrespectful to a management official and disciplinary action was requested and a suspension was deemed appropriate. With regard to (8), the Agency stated that Complainant’s allegation that CW1 was waiting for Complainant to exit VAMC to attack her was unsubstantiated. CW1 and Complainant were instructed to stay away from one another, but CW1 could be at the VAMC. For (12), while Complainant asserted that she left reasonable accommodation documents for the Radiology Director, S4, but S4 did not receive them. Complainant requested change of AWOL to leave without pay due to her taking leave to avoid her coworker and alleged harassment. Complainant noted that she is not alleging the basis of disability in the instant complaint. Regarding incident (13), witnesses alleged that Complainant was the aggressor toward the other employee and police were summoned and arrived regarding the matter. As to (14), the rating official stated Complainant was rated as “fully successful” and that it was difficult to rate her performance any higher because she called in absent so frequently. Considering the totality of the record, we find there were conflicts and tensions with Agency management style and at least one coworker that left Complainant feeling aggrieved. 2021000652 6 The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that management was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Further, to the extent that Complainant alleged disparate treatment, we find that Complainant failed to prove, by a preponderance of the evidence, that the legitimate non-discriminatory explanations for the actions proffered by management were a pretext masking discrimination based on race or sex, or were the result of unlawful retaliation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision finding no discrimination or unlawful retaliation. 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). 2021000652 7 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. The court has the sole discretion to grant or deny these types of requests. 2021000652 8 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 August 24, 2022 Date