[Redacted], Maura S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJul 12, 2021Appeal No. 2020002238 (E.E.O.C. Jul. 12, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maura S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002238 Agency No. 200J-0556-2019-101381 DECISION On November 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 24, 2019, final decision 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 decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment and discrimination based on reprisal for her protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Assistant to the Chief Medical Executive at the Agency’s Captain James A. Lovell Federal Health Care Center in North Chicago, Illinois. On February 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment in reprisal for her prior protected EEO 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. 2020002238 2 1. in April 2018, Complainant learned that the Chief of Medicine2 (Chief) belittled and disparaged her during a staff meeting; 2. in April 2018, Complainant was informed that the Chief made threats against her when he stated he was going to gather information from Complainant’s staff to get her; 3. on May 24, 2018, the Chief submitted a Freedom of Information Act (FOIA) request for Complainant’s emails; 4. on May 29, 2018, Complainant was subjected to a fact-finding investigation; 5. on December 12, 2018, the Privacy and FOIA Officer (Privacy Officer) and the Compliance and Integrated Ethics Officer (Compliance Officer) informed Complainant that the Chief asked them to investigate her because she filed a prior EEO complaint against him; and, 6. throughout the years, and as recently as June 2018, Complainant was subjected to anonymous whistleblower complaints. On March 22, 2019, the Agency issued a Notice of Partial Acceptance to Complainant. The Agency determined that claims 1 to 4 were previously raised in Agency Case Number 200J- 0506-2018104272, which was filed on June 29, 2018. Since claims 1 - 4 were previously raised, the Agency dismissed the claims for stating the same claim in a prior EEO complaint, pursuant to 29 C.F.R. 1614.107(a)(1). The Agency accepted claims 5 and 6 for investigation. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant stated that the Chief often went around the medical center asking staff to investigate her. Complainant was offended that her integrity was being questioned, felt physically threatened, and was concerned for her welfare. She asserted that she suffered severe stress, humiliation, embarrassment, fear, and decreased promotional opportunities. The Privacy Officer stated that, on December 14, 2018, she received an email from the Information Security (IS) Officer requesting assistance about a perceived “FOIA complaint” involving Complainant. The email contained the following statement from the Chief: I was the subject of relation (sic) for filing a lawful FOIA complaint3 sent to many other personnel at Lovell regarding downgrading of my pay. [Complainant] 2 By the time this matter was investigated, the Chief had left the Agency. The EEO Investigator attempted to obtain an affidavit but the Chief did not respond. 3 The record indicated that the Chief had submitted a FOIA request which has been characterized as a “FOIA complaint.” 2020002238 3 in retaliation filled an EEO complaint because I had requested documents under FOIA. I was advised by DOJ/OSC counsel in DC that I should not be against (sic) retaliated for lawful activity, and the ISSO4 should investigate my complaint and proceed with necessary disciplinary action. The IS Officer stated that he could assist in the matter if the Privacy Officer wished. The Privacy Officer did inform Complainant about the email because the Privacy Officer needed clarification regarding past events. The Privacy Officer noted that the matter was administratively closed when the Chief failed to pay the processing fees for the FOIA request. The Compliance Officer discussed the IS Officer’s email with the Privacy Officer. The Compliance Officer also informed Complainant of the FOIA request but only to obtain clarification and not to inform Complainant that she was being investigated. Both the Compliance Officer and the Privacy Officer noted that they were never asked to investigate Complainant, but that the IS Officer was looking into the FOIA request. The IS Officer stated that at no point was the Privacy Officer, the Compliance Officer, nor himself, asked to or targeted Complainant for an investigation. Throughout the years, and as recently as June 2018, Complainant alleged that she was subjected to anonymous whistleblower complaints. Complainant asserted that, in June 2018, the Acting Human Resources Officer (Acting HR Officer) informed her that an anonymous complaint was filed against her regarding compensation panels and pay for performance. Complainant strongly suspected that the Chief made the complaints. The Acting HR Officer confirmed the anonymous complaint regarding pay setting requirements for physicians. The Acting HR Officer interviewed Complainant as part of the overall fact- finding investigation. He noted that he has never spoken with the Chief before; that he never informed Complainant that the Chief asked him to investigate her; and that he never informed Complainant who submitted the anonymous complaint. At the conclusion of the investigation, 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). The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant did not contest the procedural dismissal of claims 1 to 4. However, Complainant refers to her prior EEO complaint, where claims 1 to 4 were previously raised, as evidence that the Chief has, and continued to, subject her to a hostile work environment. 4 Acronym not defined in record. 2020002238 4 Complainant also notes that the Chief filed an EEO complaint against Complainant on the same day that he learned of her EEO complaint against him. Complainant asserts that this is evidence that the Chief is further harassing her for her EEO activity. Regarding her claims, Complainant asserts that the Agency incorrectly framed them. Complainant notes that she never claimed that the Privacy Officer or Compliance Officer were asked to investigate her. Complainant asserts that the Chief went to the IS Officer and specifically asked him to investigate Complainant because she had filed an EEO case against him. Complainant argues that the IS Officer’s denial was clearly a coverup that should have been further investigated. In response, the Agency asserts that Complainant failed to demonstrate, by a preponderant of the evidence, that she was subjected to harassment or discrimination in reprisal for her EEO activity. The Agency requests that the Commission affirm its prior finding of no discrimination. STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Id. at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision to procedurally dismiss claims 1 to 4. Accordingly, we will not address these claims on appeal. Processing of Complaint As a preliminary matter, we note that Complainant raised concerns with the processing of her complaint. Complainant claims on appeal that the investigation was inadequate, citing her belief that the EEO Investigator did not appropriately investigate alleged discrepancies in the IS Officer’s testimony. Specifically, that the IS Officer was requested by the Chief to target Complainant for an investigation, and that the action was done so to intimidate, harass, and retaliate against Complainant. 2020002238 5 Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. We note that Complainant chose not to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. The Commission determines that the investigation was properly and adequately conducted. Discrimination in Reprisal for Protected Activity For Complainant to prevail on her claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the Agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). 2020002238 6 Assuming, arguendo, that Complainant has established a prima facie case of reprisal discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, there is nothing in the record to demonstrate that any Agency official, including the IS Officer, targeted Complainant on behalf of the Chief, in retaliation, for her prior EEO activity. On appeal, Complainant asserted that Agency improperly framed her concerns in claim 5. We acknowledge that the claim was not that the Privacy Officer and the Compliance Officer had been directed to investigate her, but that both had knowledge of the IS Officer’s alleged directive to investigate Complainant. Complainant asserted that the improper framing negatively impacted the investigation as the IS Officer’s role was never properly investigate. However, the record demonstrated that both the Privacy Officer and the Compliance Officer stated that the IS Officer was merely looking into the FOIA request filed by the Chief. This hardly demonstrates that the IS Officer initiated a targeted investigation, directed by the Chief, in order to retaliate against Complainant. Additionally, the IS Officer testified that he was not directed by Chief, or anyone else, to investigate Complainant. The record demonstrated that the Chief opened a FOIA request, which he framed as a FOIA complaint5, and that Complainant was part of this overall request. While the Chief opened this FOIA request, there is no evidence that he did so with retaliatory animus, or that any subsequent review in the matter was done so with retaliatory intent. The Chief’s inclusion of Complainant’s name in the FOIA request was due to her position within the Agency and potential access to the FOIA information he requested regarding physician pay rates. Lastly, the Acting HR Officer confirmed that he investigated an anonymous complaint regarding pay setting matters involving Complainant, and other Agency staff members. The Acting HR Office asserted that the investigation was not knowingly done at the behest of the Chief as the complaint came in anonymously. Aside from the one June 2018 incident, Complainant did not cite to any other incidents where she has alleged unlawful actions by the Agency in response to her prior EEO activity. Based on the record, there is no evidence to demonstrate that management’s actions were motivated by retaliatory animus. Hostile Work Environment Here, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s prior EEO activity played any role in the Agency’s actions. In sum, Complainant failed to prove that her EEO activity played any role in the incidents she proffered as evidence of her harassment claim. 5 FOIA complaints do not exist. 2020002238 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s finding of 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. 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. 2020002238 8 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. 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 July 12, 2021 Date Copy with citationCopy as parenthetical citation