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

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2022000245 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melinda S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000245 Agency No. 200P-0600-2021103898 DECISION 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 March 7, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, 0679, GS-05 at the Agency’s VA Healthcare System facility in Long Beach, California. Complainant was in a temporary position not to exceed September 30, 2021. On August 13, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (63) when: 1. On March 3, 2021, Coworker-1 asked about Complainant’s age; 2. On March 10 and 11, 2021, Coworker-1, Coworker-2, and Team Lead made unwelcome comments and demonstrated rude body language towards Complainant; 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. 2022000245 2 3. Since April 20, 2021, Supervisor failed to respond to Complainant’s Report of Contact (ROC) regarding Coworker-1; 4. Since April 21, 2021, Supervisor failed to respond to Complainant’s ROC regarding Team Lead; and 5. On April 26, 2021, Complainant was terminated from employment. 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. Complainant reported that Coworker-1 asked Complainant her age on March 3, 2021. Coworker-1 denied asking Complainant her age. Complainant reported that Coworker-1, Coworker-2, and Team Lead made unwelcome comments and demonstrated rude body language towards Complainant on March 10 and 11, 2011. She reported that the Coworker-1, Coworker-2, and Team Lead talked about Complainant’s age and laughed. Coworker-1 reported that Complainant joined a conversation already occurring between Coworker-1 and Coworker-2. Coworker-1 indicated that she and Coworker-2 were discussing work matters. Coworker-1 stated that Complainant joined the conversation by stating that Coworker-1 and Coworker-2 looked young and asking their ages to which Coworker-1 responded with her own age. Coworker-1 indicated that Complainant called herself a “cougar” and danced in an upward and downward motion. Coworker-2 generally denied the conduct alleged in claim 2 and indicated that she was detailed to the emergency room. Team Lead denied making any unwelcome comments or displaying any type of rude body language. Team Lead indicated that there were several instances in which Complainant made unwelcome comments about herself, such as claiming the title of “cougar” and making feline purring sounds. The record includes multiple reports of Complainant becoming confrontational with other Agency employees. For example, an employee not involved in Complainant’s claims reported that Complainant transferred a patient to the wrong telephone number and became confrontational when advised of proper procedure to verify the correct recipient. On April 19, 2021, Complainant’s second-level supervisor (Supervisor-2) sent an email to Human Resources (HR) requesting guidance on how to proceed with Complainant’s termination. Supervisor-2 indicated that Complainant had documented conduct issues including behavior and absence without leave. 2022000245 3 Supervisor-2 attached sample timecards with multiple instances of absence without leave. On April 21, 2021, Supervisor (Complainant’s first-level supervisor) emailed Supervisor-2 requesting that Supervisor-2 seek the immediate removal of Complainant. Supervisor supported the request by detailing Complainant’s lack of production, Complainant’s errors during the performance of her duties despite training, and Complainant’s confrontations with coworkers. On April 23, 2021, Complainant sent Supervisor an email from an account external to the VA system that included two attached ROCs2. The ROCs were identical with the exception that the first identified Coworker-1 as the offending party and the second identified Coworker-2 as the offending party3. Complainant indicated in the ROCs that: she is met with constant aggressive, rude behavior; that whispering, smirking, and laughter is directed at her; that there are constant micro-aggressions; and that information necessary to perform her job is withheld forcing her to interact with others. Complainant was not in the office on April 23. Rather, she sent the email from a personal account. The email also told Supervisor that Complainant had a doctor and dentist appointment that day. Supervisor stated that she does not reply to external emails regarding VA information or VA employed staff. Supervisor further noted that Complainant’s external email was sent after Complainant’s removal was approved by HR. On April 26, 2021, Complainant received a Termination of Temporary Appointment letter that was effective upon receipt. The letter noted that Complainant’s termination was due to Complainant’s unacceptable conduct. 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”). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 We note that Complainant identifies the submission dates of the ROCs as April 20 and 21. The ROCs were submitted via an email dated April 23, 2021. 3Complainant’s complaint specifies Team Lead in claim 4 whereas the ROC identifies Coworker-2 as the offending party. 2022000245 4 Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his statutorily protected class; (4) the harassment affected a term or 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 2022000245 5 For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated a legitimate, nondiscriminatory reason for Complainant’s termination. Regarding claim 5, the Agency detailed in its Termination of Temporary Appointment letter that Complainant’s position was terminated due to unacceptable conduct. After a review of the record, we find Complainant failed to show by a preponderance of the evidence that Agency’s articulated reason for the discrete adverse employment action was a mere pretext for discrimination. Complainant attempts to demonstrate pretext by stating that Coworker-1, Coworker-2, and Team Lead made negative comments about Complainant’s age and told her to retire. These three VA employees generally denied rude behavior or gestures. Additionally, they were not involved in the determination to terminate Complainant. Finally, the record establishes Complainant’s unacceptable conduct in two ways. First there were multiple instances of Complainant having a confrontational attitude with other VA employees regarding VA business processes. Second, there were documented instances of Complainant being absent without leave. Complainant has not shown that similarly situated people were treated differently. We find that Complainant failed to prove unlawful harassment by a preponderance of the evidence. Complainant’s colleagues denied asking about her age, commenting on her age, or engaging in rude behavior related to her age. Rather, the record supports that Complainant herself initiated conversations regarding age and described herself as a “cougar”. Regarding claims 3 and 4, Supervisor noted that she does not reply to external emails regarding VA information or VA employed staff. Additionally, management had already reached the conclusion to terminate Complainant’s position prior to her submission of the ROCs. Regarding claim 5, the evidence supports that Complainant’s unacceptable conduct was the rationale for her termination rather than her membership in a statutorily protected class. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 2022000245 6 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. 2022000245 7 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 December 6, 2022 Date