[Redacted], Maura S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 2022Appeal No. 2021001029 (E.E.O.C. Feb. 7, 2022) 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 (Veterans Health Administration), Agency. Appeal No. 2021001029 Agency No. 2004-0688-2020102397 DECISION Complainant timely 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 29, 2020, 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 (FAD). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Inpatient Medicine Social Worker, GS-11, at the Agency’s Medical Center in Washington, D.C. Her first-line supervisor was Program Manager for the Caregiver Support System (Program Manager). Her second-line supervisor was Acting Acute and Ambulatory Care Supervisor, and then she reported to Chief, Social Work Service (Chief). On March 13, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Caucasian) and color (white) 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. 2021001029 2 1. In May 2018 and ongoing, she has attempted to correct her effective duty date from November 25, 2017 to March 5, 2017, which has been denied by the Medical Center Director (Director). The resulting delays caused lost wages in promotion (GS-9 to GS-11) and timely quality step increases (QSIs); 2. On February 5, 2020, she was threatened by the Director with a debt letter based on her accusations that she was owed back pay for the errors that were caused with her on her board date; and 3. On February 28, 2020, the Director has failed to respond to her after she forwarded a letter clarifying their meeting on February 5, 2020. The Agency dismissed claim 3 as a discrete act but included it in the investigation to the extent Complainant raised this in support of her claim of harassment. The Agency accepted the complaint for investigation. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant began work as an Inpatient Medicine Social Worker, GS-9, step one, on March 6, 2017, and believed that she was eligible for promotion on March 6, 2018. Report of Investigation (ROI) at 233-34. She based this belief on the Agency’s 28-year practice of promoting social workers after one year from the GS-9 level to the GS-11 level and on the Agency’s 2009 handbook. Id. According to her, Agency policy was that appointment to the GS- 11 level required a minimum of one year of post-Master of Social Work (MSW) experience equivalent to the GS-9 grade level in the field or other social-work-related settings. Id. at 234. In addition, five cohort with whom Complainant interned and later worked, received their backpay and had their duty dates changed to give them credit for time served as an intern. Id. at 7-8; 234; 263-64. Beginning in early May of 2018, when she noticed that she had not been promoted to GS-11, Complainant worked with Program Manager and Chief to have this corrected with Human Resources (HR). Id. On December 28, 2018, Complainant noticed on her paycheck that she had received her promotion to GS-11 but not the nine months of back pay to which she believed she was entitled. Id. Complainant stated that she initially contacted Front Office Staff Person 1 about this issue. However, when Front Office Staff Person 1 retired Complainant worked with her replacement, Front Office Staff Person 2, to have this rectified. Id. at 233-36; 238. Ultimately, Complainant contacted the union and a Congressperson when Front Office Staff Person 2 did not make progress in having these issues addressed. Id. at 234. According to Complainant and Chief, Director acknowledged that HR had mistakenly coded her as a new hire in November 2018, instead of coding the promotion, and promised to fix it. Id. at 234; 251. Program Manager and Chief confirmed that it had been standard practice for a social worker to apply for a promotion from the GS-9 to the GS-11 level after one year of service or successful post-graduate work. Id. at 243; 245; 250. 2021001029 3 Program Manager and Chief reported that Complainant’s entry on duty (EOD) date was March 2017, not November 25, 2018. Id. at 243; 250-51. Program Manager explained that this HR error caused Complainant’s steps, time in grade, and pay rate to be pushed back by nine months. Id. at 243. According to Program Manager, Complainant’s EOD date and back pay issues were not resolved because HR was following a policy it had not followed in decades and Director upheld the decision. Id. at 245. Chief attributed difficulties in correcting Complainant’s duty date to inconsistent HR leadership. Id. at 250-51. She attributed the delay in promoting Complainant to HR’s reluctancy to acknowledge that it made an error in changing the EOD date. Id. Chief added that the new standards, published in September 2019, clearly stated that to be promoted to the GS-11 level, a social worker must have an independent license. Id. at 250. Chief also said she believed the inaction on Complainant’s duty date and back pay was the result of a lack of knowledge and training on the part of HR Specialist. Id. at 252. Director stated that he relied “on competent Human Resources advice” on whether an employee’s duty dates were correct or if adjustments were required. Id. at 257. Specifically, he relied on the advice of Acting Human Resources Officer (Acting HR Officer). Id. at 256-57. He attested that Complainant lacked the appropriate independent practice license for promotion to the GS-11 level in March and November 2018. Id. at 257. As a result, he said, her promotion in November 2018 violated the Agency’s qualification standards according to Acting HR Officer. Id. Thus, he could not change Complainant’s promotion date to March 2018. Id. Regarding claim 2, Complainant alleged that Director belittled her social work license at a meeting with her and Chief on February 5, 2020. Id. at 235. Complainant and Chief stated that Director also brought up having debt letters sent to Complainant and other social workers promoted to the GS-11 level without their independent clinical licenses. Id. at 235; 239; 253. Complainant reported that she found Director’s comment about debt letters to be intimidating and extremely hurtful. Id. at 240. According to Program Manager, Complainant relayed to her that Director said if Complainant did not stop pursuing the matter, he would investigate going back at least 28 years and make her colleagues pay back funds. Id. at 244. Program Manager reported that Complainant was in tears when she told her this. Id. Chief stated that Complainant was offended and disappointed after this meeting but that she could not say whether Complainant felt harassed. Id. at 254. Director denied threatening Complainant with a debt letter. Id. at 260. Rather, he explained that if other workers were promoted and did not meet the qualification standards, they might receive debt letters, and he did not want that to happen to Complainant or anyone else based on mistakes made by HR. Id. He emphasized that Acting HR Officer confirmed that no debt letters would need to be sent out. Id. While he acknowledged that Complainant was very unhappy and felt like she was being treated unfairly, Director averred that she was not treated differently than any other employee in similar circumstances. Id. at 261. 2021001029 4 Regarding claim 3, Complainant alleged that Director never responded to her February 28, 2020, email to him that recapped her understanding of the February 5, 2020, meeting. In that email, Complainant argues that she had her independent license effective June 2, 2016, based on her Licensed Master of Social Work (LMSW) license. She contends the LMSW should count as the independent license needed for promotion to GS-11, despite what Director said in their February 5, 2020, meeting. 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). In accordance with Complainant’s request, the Agency issued a final agency decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to establish that the Agency subjected her to discrimination as alleged. Specifically, the Agency noted that, according to the record, errors, incompetency, disregard for Complainant’s concerns, and the inability to explain the process to Complainant were the reasons for her treatment and dissatisfaction. In regard to Director’s response and refusal to take action, the Agency found that Complainant did not present evidence that his actions had any relation to her race or color. The Agency acknowledged that five African-American social workers identified by Complainant had their promotion and pay issues taken care of in a matter of months but concluded that the record did not reflect that race or color factored into the delay in Complainant’s promotion or pay. The Agency concluded that it offered legitimate, nondiscriminatory reasons for its actions that Complainant did not show were pretextual. As for harassment, the Agency determined that, even if Complainant’s allegations happened as alleged, she failed to establish that she was subjected to severe or pervasive harassment under Title VII. CONTENTIONS ON APPEAL On appeal, Complainant providesa copy of her LCSW license verification from November 11, 2019; information she noted reflects the change on her salary date; letters of support and copies of awards received; and other correspondence related to her efforts to have this matter resolved. Complainant also includes a copy of the February 28, 2020, email to which Director did not respond. ANALYSIS AND FINDINGS 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, 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, 2021001029 5 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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, n.13; 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. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Assuming, arguendo, that Complainant established a prima facie case of discrimination on her protected bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, regarding claim 1, Director relied on HR advice, specifically, that of Acting HR Officer. The reason Director gave for not changing Complainant’s EOD date and issuing her back pay was that Complainant lacked the appropriate independent practice license for promotion to GS-11 in November 2018. Thus, according to Director and HR, he could not change Complainant’s promotion date to March 2018. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. In arguing pretext, Complainant submitted the names of five potential comparators, namely the African American social workers from her internship cohort. Complainant argued that these individuals had their effective dates changed and back pay paid when they were promoted after a year of service. ROI at 234; 236-37. Intern Cohort 1 (Black, dark-skinned) said in her affidavit that she and Complainant were in the same internship cohort and that Complainant is the only one of that cohort not credited for time served in the internship and not paid back pay. Id. at 263-64. However, at the time of the initial complaint, Intern Cohort 1 reported to Acting Homeless Program Manager and Chief. Id. at 262-63. In addition, Director denied knowledge of what happened with these employees, as they “likely occurred” before he assumed his current position in October 2018. Id. at 258. In addition, Complainant asserted, as she did in her February 28, 2020 letter to Director, that he made a mistake in her case. Id. at 314. We are unpersuaded by Complainant’s argument of pretext based on her proffered comparators. Complainant and Intern Cohort 1 held different positions under different first-line supervisors. 2021001029 6 To demonstrate that another employee is a similarly situated comparator, Complainant must show that all relevant aspects of the comparator’s work situation were nearly identical to his own. Martinez v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1. 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). Given the differences in title and supervision between Complainant and Intern Cohort 1, we do not find them to be comparators. Furthermore, to the extent that Complainant argues that Intern Cohorts 1 through 5 were treated differently, Director indicated that he was responsible for personnel decisions as of his start date in October 2018. We find that the evidence does not show that Director was involved in the decisions involving the other Intern Cohorts. Therefore, Complainant has not shown that Director’s actions, as pertain to her, were motivated by illegal discrimination. Lastly, even if Complainant established that the Agency’s failure to provide back pay and change her EOD date were mistakes, we point out that mistakes alone do not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to claim 1. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With respect to claims 2 and 3, we find that Complainant has not established that Director’s actions in the February 5, 2020, meeting and his failure to respond to her February 28, 2020, email were severe or pervasive enough to rise to the level of a hostile work environment. While there is no dispute that Director mentioned debt letters in his February 5, 2020, meeting with Complainant and Chief, we note that no debt letters were sent out. In looking at the totality of the circumstances, the record reflects that the claims raised were not so abusive as to rise to the level of a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). We find that Complainant has not established that she was subjected to discrimination or harassment, as alleged. 2021001029 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Final Agency 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. 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. 2021001029 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 February 7, 2022 Date Copy with citationCopy as parenthetical citation