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

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000395 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancy D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000395 Hearing No. 520-2019-00442X Agency No. 200H-0523-2018104640 DECISION On September 3, 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 August 7, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Housekeeping Aide Supervisor at the Agency’s Environmental Management Services (EMS) in Boston, Massachusetts. 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. 2021000395 2 On September 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment based on race (African American), sex (female), and age2 when: 1. On September 20, 2015, her work assignment was temporarily changed; 2. On February 15, 2016, her work assignment was temporarily changed; 3. On March 27, 2016, her work assignment was temporarily changed; 4. On April 3, 2017, her work assignment was temporarily changed; 5. On September 5, 2017, she was reassigned back to her regular shift with a staff of twelve employees; 6. She was suspended for 14 days effective January 14, 2018 for failure to use protective clothing or equipment; and 7. On June 3, 2018, she was suspended for 14 days for conduct unbecoming a supervisor. Following an 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 1, 2020 motion for a decision without a hearing and issued a decision by summary judgement in favor of the Agency on August 3, 2020. The AJ’s analysis addressed both disparate treatment and harassment. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2 The record contains no evidence of Complainant’s age. As the Agency has considered the claim under this basis, we will likewise consider it accordingly. 2021000395 3 In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 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 failed to establish such a dispute. For the reasons detailed below, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Harassment/Hostile Work Environment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). In other words, to prove her harassment 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 age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Claims 1 and 2 Claims 1 and 2 involve temporary rotations of a housekeeping aide supervisor between Agency locations in February 2015 and again in February 2016, respectively. According to the record, the first temporary rotation, in claim 1, was made so that Complainant could train three new supervisors and help them get familiar with the facility. The record reflects that supervisors at the Agency's EMS facility are rotated regularly from one campus location to another, to learn and provide specialist training to the housekeepers. 2021000395 4 The second temporary rotation, as identified in claim 2, was made so that Complainant could fill in for two weeks for a supervisor who was on leave. In either case, the record is devoid of any evidence suggesting that the temporary reassignments were based on any discriminatory animus toward Complainant's protected classes. Claims 3, 4, and 5 In claim 3, Complainant challenges a temporary change in shift time. The record indicates that the Agency employed the use of Xenex U.V. light robots to provide extra cleaning at night for hospital rooms after housekeeping aides had cleaned the rooms manually. Because the Agency did not have a designated “after hours” shift to accomplish this additional task, the EMS Chief made the decision to have a housekeeping aide supervisor run the robots through the night. In that regard, on March 27, 2016, Complainant's duty hours were temporarily changed from 2:30 p.m. to 11:00 p.m. to 11:00 p.m. to 7:30 a.m. Claim 4 also involves a change in Complainant's duty hours. The record indicates that Complainant had consistently urged the need for consistent training among housekeepers. Specifically, Complainant noted that seasoned housekeepers who had been with the Agency for a long time period were not following the same procedures as newer housekeepers. According to the record, Complainant was tapped to train housekeepers to help establish consistency in cleaning procedures. So that Complainant could provide training for both day shift and evening shift housekeeping aides, her duty hours were temporarily changed from 2:30 p.m. to 11:30 p.m. to 12:00 p.m. to 8:30 p.m. On September 5, 2017 after Complainant had completed training the housekeeping aide, she was moved assigned to her initial duty station and duty hours of 2:30 p.m. to 11:00 p.m. The reassignment to her original shift is identified as claim 5 in the instant complaint. However, by Complainant's own admission, the September 5, 2017 placement to her original position was acceptable to her and she did not view the move as harassing. The statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. 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 any of the disputed actions were motivated in any way by Complainant’s race, sex or age. 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). Disparate Treatment 2021000395 5 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 complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Dep't of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim 7 Regarding claim 7, the record indicates that Complainant inspected operating rooms on two separate occasions without wearing personal protective equipment (PPE) as required by Agency policy. As a result, Complainant was issued a 14-day suspension effective January 14, 2018. Complainant asserts that she was unable to wear full PPE because she was wearing a knee brace. However, the Agency found that Complainant failed to provide any explanation as to how the brace allegedly prevented her from wearing protective equipment. Additionally, the Agency noted that there is no evidence that Complainant requested an accommodation or notified an Agency official of any difficulty she had wearing full PPE as required. Moreover, the Agency determined that Complainant's failure to wear proper protective equipment placed surgical patients at risk for infection and compromised the integrity of the entire Agency healthcare system. The Agency found that as a supervisor, Complainant is called to set a proper example for subordinate EMS employees. According to the record, Complainant's behavior did not improve following the January 14, 2018 suspension. The record indicates that as a result of Complainant's failure to improve her conduct, action was taken to propose another 14-day suspension. The record further indicates that Complainant lost her temper with a subordinate employee and was seen yelling at the employee and banging her fists on a table. As a result of Complainant's behavior, she was issued a 14-day suspension effective June 3, 2018. The Agency notes that Complainant did not submit a written or oral response to the proposed suspension before it became effective on June 3, 2018. 2021000395 6 The Commission has consistently held that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). As discussed above, regarding the instant claims of harassment and disparate treatment, the Agency articulated legitimate, nondiscriminatory reasons for its decisions with respect to Complainant for which Complainant has failed to prove was pretext for discrimination. At all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. With regard to the events comprising Complainant's hostile work environment claim, we find that Complainant fails to establish discriminatory harassment. We concur with the AJ's finding that the actions complained of appear to be nothing more than actions taken within the exercise of managerial authority to ensure the efficient and orderly operation of the workplace. Here, as detailed by the record and in the AJ's well-reasoned decision, the record supports the AJ's determination that the Agency's proffered reasons were legitimate and non-discriminatory and were not pretextual. Moreover, Complainant has not established that she was the victim of discriminatory harassment . CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing, finding 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). 2021000395 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. 2021000395 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 February 2, 2022 Date