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

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020005495 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mike S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005495 Hearing No. 430-2016-00028X Agency No. 2004-0637-20151000452 DECISION On September 4, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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., and 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Records Technician, GS-8, at the Agency’s Medical Center in Asheville, North Carolina. Complainant reported that in January 2014, the Chief of the Health Administration Service (Chief) began hiring young Caucasian females for positions in the clinic. See Report of Investigation (ROI) at 120. She explained that the hiring of Caucasian females harmed her because, all of a sudden, everything that she did at work was wrong, despite being at the department for over 14 years. Id. at 128. 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. 2 2020005495 The Chief stated that Complainant’s statement regarding hiring Caucasian females was strange, because in the Coding Department, there were anywhere from 10 to 14 Coders at a time, and all of them but Complainant and one other person worked from home. Id. at 214. He further stated that he did not see the Coders, often, and was not their direct supervisor. Id. Overall, the Chief was not sure which department Complainant was referring to wherein Caucasian females were being hired but noted that Complainant would not be aware of the individuals who worked at the clinic because she would not be at that location. Id. at 216. He clarified that the hiring practices were established by human resources (HR) and hiring announcements would be made internally only to relevant Agency employees. Id. He also noted that he was not involved in the hiring process for entry-level positions, and rather only became involved in supervisory positions. Id. at 218. On March 13, 2014, according to Complainant, the Medical Records Administrator (Administrator) asked Complainant when she planned on retiring. Id. at 121. Complainant reported that the Administrator contacted HR to get the exact date that her step would increase, as that is when Complainant would retire. Id. at 132. The Administrator confirmed that she did ask Complainant about her retirement but stated that it was her responsibility to ensure there were enough resources to accomplish the workload and Complainant had informed the coding team that she planned on retiring. Id. at 23-232. The Administrator further explained that no other employees had discussed retiring in the near future, so she had not asked anyone else a similar question. Id. at 232. On April 28, 2014, during an appraisal review, the Administrator asked Complainant if she had everything she needed as a coder. Id. at 121. Complainant reported that this was a question not asked of others and she could tell that the Administrator was implying that she was not even supposed to be in the coding department. Id. at 139. The Administrator stated that she asked Complainant if she had everything she needed as Complainant had not achieved 95% accuracy in her last audit. Id. at 234. According to the Administrator, the question was posed in reference to Complainant’s performance. Id. On August 8, 2014, Complainant overhead the Chief and the Administrator discussing her position becoming vacant. Id. at 121. After overhearing this, Complainant felt she was going to be pushed out. Id. at 144. The Administrator stated that as the coding manager, it is her responsibility to ensure there are resources available and to ensure that she discussed with the Chief so as to be aware of exactly what is going on. Id. at 236. She stated that she did not have anyone in mind to bring in after Complainant retired. Id. at 237. On August 26, 2014, the Administrator removed Complainant from coding the Substance Abuse Residential Rehabilitation Treatment Program (Substance Abuse Program). Id. At 121. Complainant explained that the assignment was taken from her and given to, younger, Caucasian Coders, hired by the Administrator. Id. at 145. 3 2020005495 Complainant surmised that the Caucasian Coders were able to receive GS-8 rankings, which they would not have been entitled to otherwise. Id. at 145-47. Complainant reported to the Administrator that she felt singled out. Id. at 152. According to Complainant, the Administrator responded and stated that she was sorry Complainant felt that way, but that she was not being singled out. Id. In contrast to Complainant’s statements, the Administrator stated that Complainant was removed from this assignment in 2012, because other Coders were becoming GS-8, and the Administrator felt it would be a good starting point for them. Id. at 240. On September 2, 2014, Complainant asked the Administrator why she did not give the Coders real inpatient tasks to perform, however, she did not receive an answer. Id. at 121. Complainant explained that this was important because in her contract, in order to have GS-8, there was a requirement that the individual be able to work inpatient and outpatient. Id. at 153. Complainant believed that the Administrator was trying to use outpatient work for the Caucasian Coders, and state that it was inpatient in order for them to receive their GS-8. Id. at 153-55. The Administrator responded and stated that Complainant did not feel the Substance Abuse Program was inpatient, but according to Agency guidelines, the clinic was inpatient. Id. at 246. The Administrator further stated that she tried to integrate everyone into the inpatient world, especially when moving toward their GS-8 position. Id. at 247. Thereafter, also on September 2, 2014, Complainant received two unscheduled audits. Id. at 122. She noted that audits were automatically done and were supposed to be given every quarter. Id. at 159. She also stated that she had extra audits in comparison to everyone else, who had only one audit. Id. at 160. The Administrator responded to this issue, stating that there was a monthly internal audit which was required by Agency guidelines. Id. at 248. The Administrator also noted that there were likely two audits in this instance because Complainant requested another Coding Auditor perform her audit after the first was done. Id. The Administrator stated that monthly audits were done for everyone. Id. at 250. On September 3, 2014, Complainant reported that the Manager from Health Information Management Services (Manager) verbally attacked and scolded her because she told the Coding Auditor that she was not supposed to complete her audit. Id. at 165. Complainant recalled that the Manager and the Administrator approached Complainant and stated to her that she did not have the right to tell the Coding Auditor that she could not do her job. Id. at 166. The Manager explained that as to the incident on September 3, 2014, it was brought to her attention that Complainant had approached the Coding Auditor and told her that she was not supposed to audit Complainant. Id. at 280-81. In response, the Manager stated that she simply asked Complainant to come in and explain what transpired in that conversation. Id. at 281. She further explained that the audits had been occurring for at least three years and Complainant’s feelings about the situation appeared out of the ordinary. Id. at 282-83. 4 2020005495 On September 4, 2014, Complainant began receiving unscheduled audits. Id. at 172. Complainant reported that over the last 14 years, she had never received audits this way. Id. at 173. She also stated that she was not given a reason for these audits. Id. In total, Complainant estimated that she received five or six unscheduled audits. Id. The Administrator stated that Complainant was informed that there would be an audit. Id. at 253. At this time, there were weekly audits. Id. She explained that one audit a week was typical for someone with performance issues in order to provide feedback and help them increase their accuracy rate. Id. at 253. On September 5 and 18, 2014, Complainant reported that the Manager over-scrutinized her workload. Id. at 122-23; 174. Specifically, Complainant received unscheduled audits. Id. at 174. Complainant explained that the Administrator additionally pulled up her “encounters,” other than those that would regularly be viewed. Id. at 176. Complainant noted that no other employees had their encounters or data reviewed. Id. at 180. The Administrator stated that Complainant likely received these audits due to requesting a different Auditor than the one initially assigned, therefore, receiving extra audits. Id. at 255. On September 23, 2014, Complainant was denied an assignment to a specialty clinic, and the Manager assigned her to difficult encounters. Id. Complainant provided that all the Caucasian Coders had a specialty clinic, and she was not assigned one. Id. at 148. Complainant stated that she had more experience than anyone in the department and was the oldest employee. Id. at 184. She stated that she was also the only African-American employee. Id. The Administrator did not recall Complainant requesting a specialty clinic. Id. at 256. On October 20, 2014, Complainant believed that the Manager harassed her when a provider pulled one of her system reports and allowed the Coding Auditor to review it. Id. Complainant reported that she never received a report such as the one pulled on this date. Id. at 192. Meanwhile, according to Complainant, Caucasian Coders did not have the same reporting. Id. On October 21, 2014, the Manager placed Complainant on a Performance Improvement Plan (PIP). Id. at 123-24. Complainant explained that the PIP was issued for accuracy, despite the fact that she had never received an unsatisfactory appraisal. Id. at 196. She was not previously counseled on the issues listed in her PIP. Id. In response to the above allegation, the Managers stated that she was not aware of what Complainant was referencing. Id. at 292. She further stated that she was on vacation on October 20, 2014. Id. at 293. In regard to the PIP, the Administrator explained that according to Agency guidelines, Coders are to maintain a 95% accuracy rate, and at Complainant’s mid-year review, her audits showed that she was below the 95%. Id. In response, Complainant requested six weeks of training and a different auditor. Id. However, the Administrator noted that Complainant still failed to reach 95%. Id. at 261. On December 8, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (African-American) and age (68) when: 5 2020005495 1. In January 2014, the Chief began hiring younger Caucasian female employees; 2. On March 13, 2014, the Administrator asked her when she planned on retiring; 3. On April 28, 2014, the Administrator asked her if she had everything she needed as a Coder during an appraisal review; 4. On August 8, 2014, she overhead the Manager and the Administrator discussing Complainant’s position becoming vacant; 5. On August 16, 2014, the Administrator removed her from her specialty clinic, the Substance Abuse Program; 6. On September 2, 2014, the Administrator did not provide an answer to her when asked why she dd not give the Coders inpatient tasks; 7. On September 2, 2014, she received two unscheduled audits; 8. On September 3, 2014, the Manager verbally attacked and scolded her for reiterating to the Coding Auditor that she was not supposed to complete her audit; 9. On September 4, 2014, she began receiving unscheduled audits; 10. On September 5 and 18, 2014, the Manager over scrutinized her workload when the Manager had a technician provide her data; 11. On September 18, 2014, she received another unscheduled audit; 12. On September 23, 2014, she was denied an assignment to a specialty clinic; and 13. On October 21, 2014, the Administrator placed her on a Performance Improvement Plan (PIP). 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). Complainant timely requested a hearing and the AJ held a hearing on March 14, 2019. Following the hearing, the AJ issued a decision on August 5, 2019. The AJ determined that the Agency provided legitimate, non-discriminatory reasons for its actions, such as the audits and Complainant’s PIP, and that the actions were not based on race or age. Upon shifting the burden to Complainant, the AJ found that Complainant failed to show that anything other than her own performance, the Agency’s standards, and staffing needs motivated the Agency. 6 2020005495 The AJ noted that the record did not reflect that there was any unwelcome conduct based on Complainant’s protected classes and that overall, the Agency’s actions were simply meant to address Complainant’s performance deficiencies. In addition, the AJ found that the actions of the Agency were not so objectively offensive as to alter the conditions of Complainant’s employment. Therefore, the AJ determined that Complainant had not proved, by a preponderance of the evidence, that the Agency discriminated against her or subjected her to a hostile work environment based on race or age. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ erred in finding nondiscriminatory reasons for the Agency’s actions, asserting that management’s explanations for their actions were simply not credible Specifically, Complainant contends that the inquiry into her retirement was not based on workplace planning because there was nothing management could do at the workplace until an employee retired and hiring could start for a replacement. Complainant additionally argues that the Agency implemented new rules for coding, which were meant to inspire her to move up her retirement date rather than go through the learning curve for a new system. She also argues that she was subjected to multiple events which were exceptionally severe, amounting to a hostile work environment. In this regard, she contends that the language directed at her was offensive in its implication that her age made her a prime candidate for retirement, which occurred at a time when the Agency had increased her performance measure to focus on accuracy as a stand-alone critical element. In response, the Agency contends that the facts show that Complainant was unable to meet or maintain the accuracy standard during monthly audits. According to the Agency, her accuracy under the additional agreed upon audits remained substandard and, as such, she was placed on a PIP. During this time, her work was subjected to regular audits for quality control including regular monthly audits and audits completed by a coworker at Complainant’s request. The Agency contends that Complainant failed to show that any of the events occurred because of her race or age. Overall, the Agency argues that Complainant fails to address any evidence in the record which would justify altering the AJ’s decision. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 2020005495 Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 29 C.F.R. § § 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Disparate Treatment (Claims 2, 3, 5, 7, 9, 11, 12, and 13) A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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; Furnco Const. 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). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). With respect to Complainant’s claims 2, 3, 5, 7, 9, 11, 12 and 13, assuming Complainant established a prima facie case of discrimination, we find Complainant did not carry her burden of establishing the Agency's reasons for its actions were a pretext for discrimination. 8 2020005495 As to her retirement, the Administrator agreed that she did ask Complainant about her retirement but stated that it was her responsibility to ensure there were enough resources to accomplish the workload. The Administrator also explained that Complainant had informed the coding team that she planned on retiring. In addition, the Administrator stated that she asked Complainant if she had everything she needed as Complainant had not achieved 95% accuracy in her last audit. According to the Administrator, the question was posed in reference to Complainant’s performance. Concerning Complainant’s audits, the record reflects that Complainant underwent multiple audits throughout the time period at issue due to the Agency’s policies requiring monthly audits, Complainant’s request to have additional auditing done by another employee, and in relation to her failure to meet performance standards which necessitated additional audits. The Administrator further noted that Complainant was removed from the Substance Abuse Program because there were other employees who needed the experience and she did not recall Complainant requested to be placed on another specialty clinic. Finally, as to Complainant’s PIP, the Administrator explained that according to Agency guidelines, Coders are to maintain a 95% accuracy rate. At Complainant’s midyear review, her audits showed that she was below the 95% rate. In response, Complainant requested six weeks of training and a different auditor. However, the Administrator noted that Complainant still failed to reach 95%. As such, the Administrator placed Complainant on a PIP. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency's reasons for its actions were pretextual or that the Agency was motivated by discriminatory animus. For the above events, while Complainant contends that the claims transpired due to her race and age, she has not provided any evidence of this assertion. Rather, she has merely asserted that she was the only Black employee and was nearing retirement. Throughout the record, there is no evidence to support her assertion that the Agency’s legitimate, nondiscriminatory reasons for their actions were pretext for discrimination. We therefore find that substantial evidence in the record supports the AJ’s finding that Complainant did not establish that she was subjected to discrimination for claims 2, 3, 5, 7, 9, 11, 12, and 13. Hostile Work Environment 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). It is well-settled that harassment based on an individual’s race and age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). 9 2020005495 In order to establish a claim of harassment under this basis, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on race or age; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant's harassment claim is precluded with regard to claims 2, 3, 5, 7, 9, 11, 12, and 13, based on our finding that she failed to establish that any of these actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Concerning claims 1, 4, 6, 8, and 10, we find that substantial evidence in the record supports the AJ’s determination that Complainant did not establish that she was subjected to a hostile work environment. The evidence presented by Complainant does not establish that the incidents occurred because of her race or age. The incidents presented appear to be normal workplace interactions and events, found in a work environment. Regarding the hiring of Caucasian females, the Chief responded that the Agency hired based on Human Resources guidelines and that he was not aware of what employees Complainant was referring to. In Complainant’s group of coders, nearly all individuals worked from home. If she was referring to hiring in the clinic, he stated that she would not have been aware of those individuals as it was a different department. Moreover, he stated he was not involved in the hiring of entry-level positions. As to Complainant’s contention that the Manager and Administrator discussed her position becoming open, the Administrator stated that as the coding manager, it was her responsibility to ensure there are resources available and to ensure that she had a discussion with the Chief so as to be aware of exactly what is going on. In addition, there is no indication in the record that the Manager verbally attacked Complainant; rather, when asked about the discussion, the Manager stated that she asked Complainant about the event that transpired, and there was no attack. While Complainant alleges that these events were discriminatory, she has not provided evidence to support that assertion. Further, Complainant failed to demonstrate that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or an offensive work environment. We, therefore, find that substantial evidence in the record supports the AJ’s finding that Complainant did not establish that she was subjected to discrimination or a hostile work environment. 10 2020005495 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 final action. 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. 11 2020005495 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. 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 March 2, 2022 Date