[Redacted], Nicole V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 19, 2021Appeal No. 2020003747 (E.E.O.C. Oct. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003747 Hearing No. 510-2018-00021X Agency No. 200I-0573-2017101549 DECISION On June 11, 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 April 24, 2020, final order concerning an equal employment opportunity (EEO) complaint claiming 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 Pathways Student Intern, Grade GS-5, in Quality Management, at the Agency’s North Florida/South Georgia Healthcare System in Gainesville, Florida. On March 17, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African-American), age (48), and in in reprisal for protected activity (prior activity) 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. 2 2020003747 1. From November 2016 to March 8, 2017, instead of providing direct assistance to Complainant, the Acting Chief, Quality Management (Supervisor) repeatedly referred Complainant to a Human Resources Specialist who was the Pathways Internship Coordinator; 2. From November 2016 to March 20, 2017, two younger Pathway Interns (PW1 and PW2) in Quality Management were given assignments which supported their career development, while Complainant was not given those types of assignments; 3. On October 4, 2016, a Registered Nurse who was the Coordinator for Quality Management’s Peer Review Program Support (Team Lead) interrupted a conversation between Complainant and PW1 and told Complainant to stop “chit-chatting,” or words to that effect; 4. From October 13, 2016 to October 25, 2016, Supervisor approved time and attendance hours for PW1, even though PW1 was not at work; 5. On November 16, 2016, Complainant was assigned to make 23 copies of approximately 100 pages and deliver the copies throughout the facility; 6. On December 12, 2016, when Complainant reported the October 4, 2016 incident (claim 3) to Supervisor, Supervisor asked if Complainant had done anything to Team Lead; 7. On December 22, 2016, Chief responded in an email that a task for Complainant to follow-up on some paperwork was too complicated for Complainant; 8. On January 18, 2017, Team Lead asked Complainant in a condescending manner if Complainant knew how to open two spreadsheets at once and, and although Supervisor was present during this exchange, Supervisor failed to address the matter; 9. On January 23, 2017, Supervisor stereotyped Complainant as an “angry Black woman” when Supervisor told Complainant that Complainant was angry; 10. During a staff meeting, on January 23, 2017, Supervisor made a snide remark about Complainant’s previous employment with the Florida Department of Corrections when Supervisor stated the prison system taints a person’s thought process, or words to that effect; 11. On January 25, 2017, Supervisor sent Complaint an email about her email etiquette and required Complainant to take a Team Communication course; 12. On February 6, 2017, Supervisor sent PW1 a less than favorable email about Complainant, which was intended for supervisors; 3 2020003747 13. On February 6, 2017, Supervisor sent PW1 and PW2 an email advising there were available positions in Logistics Service, but Complainant was not made aware of the vacancies until February 13, 2017; 14. On February 15, 2017, Complainant heard Supervisor tell the Patient Safety Manager to, “sing, go ahead and tell it … you could lie all day if someone asked you about it” or words to that effect. Complainant believes these comments were made by Supervisor in retaliation for the instant complaint. 15. On February 23, 2017, Supervisor accused Complainant of being “short” with people in emails. After investigating these claims, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 24, 2019, the Agency moved for motion for a decision without a hearing. Complainant objected to the Agency’s motion. The AJ issued a decision by summary judgment in favor of the Agency on March 31, 2020. On April 24, 2020, the Agency issued a final order adopting the AJ’s finding no discrimination. The instant appeal followed. Complainant submitted a pro se brief with attachments contesting the AJ’s findings and the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 4 2020003747 Complainant has made conclusory statements attacking the record without showing facts within the record that are in dispute. Complainant has not presented further material evidence to prove the record inaccurate or incomplete. Disparate Treatment The Commission reviews disparate treatment claims by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie 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 Agency’s eployment actions. See Furnco Constr. 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 the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993). In the present case, Complainant claimed Supervisor (Caucasian, age 58) and Team Lead (Caucasian, age 62), showed favoritism toward co-workers, PW1 and PW2, who both were Caucasians in their 20s. According to Complainant, she had received less specialized opportunities and was relegated to clerical errands. However, Complainant, PW1 and PW2 were each assigned to different business lines within Quality Management. Specifically, Complainant worked on the Peer Review Program, while PW1 worked with the Utilization Management staff and PW2 worked with mental health personnel. Moreover, all three of the Pathways Interns attended many of the same training sessions, meetings and they all collaborated on a Quality Management policy project. Like Complainant, PW1 and PW2 also had administrative duties that included emails, data entry, and documents review or production. Additionally, after Complainant left the Agency, PW1 took-on Peer Review Program tasks had been previously assigned to Complainant. Another “preferential treatment” claim was Complainant’s accusation that Agency management conspired to falsify PW1’s time and attendance records. The Agency’s Office of Inspector General conducted a payroll audit, but ultimately deduced that no fraud, no waste, or abuse was committed. Rather, PW1 had been granted extra flexibility on internship hours to avoid a scheduling conflict with PW1’s coursework as a student. Most importantly, Complainant, like P1 and P2, completed their Pathways Internships. The Agency rated Complainant “Fully Successful” and offered her an opportunity continue employment in Quality Management with a promotion to GS-6. Complainant declined the offer. Undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for those Agency actions that Complainant challenged as unlawful. We concur with the AJ’s finding no preferential treatment because, Complainant’s has not carried her heavy burden to show, by preponderant evidence, that the Agency’s reasons for its decisions at issue were pretexts to mask discriminatory motives. 5 2020003747 See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). Harassment We concurrently considered Complainant’s claims as they related to harassment or a hostile work environment. To prevail, Complainant must show she was subjected to conduct so severe or so pervasive that a reasonable employee in the same position would consider the same treatment abusive. Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant must also prove that the conduct was motivated by animus against one of her protected characteristics. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Only where Complainant establishes both abusive conduct and a discriminatory motive, can we can find the Agency liable for harassment discrimination. Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug.14,1998). Complainant failed to establish a harassment claim. For example, Complainant has stated that on January 18, 2017, Team Lead demeaned her by asking if Complainant was capable of opening two spreadsheets at once. Witnesses indicated that Team Lead was genuinely attempting to instruct Complainant on a more efficient approach to using the Excel program. Complainant responded by informing Team Lead that she had a Master’s Degree. Although Complainant found Team Lead’s advice unwelcome, this advice was a one-time exchange that does not qualify as severe. With respect to the claim that on January 23, 2017, Supervisor called Complainant “angry,” the record confirmed that they had met to discuss efforts Complainant’s post-internship prospects. Their testimonies confirm that Complainant began taking notes of the discussion but then Supervisor directed Complainant to stop taking notes because Supervisor wanted Complainant to engage in more active listening. We cannot find that a supervisor questioning an intern’s anger, on one occasion, evidences discriminatory motive. Likewise, Supervisor’s demand that Complainant stop taking notes and that Complainant make eye-contact was reasonable under those circumstances. If all of the claims are taken together and examined in the light most favorable to Complainant, they amount to everyday workplace indignities that were neither severe nor pervasive. Silvia B. v. Dep’t of the Treasury, EEOC Appeal No. 0120173290 (Oct. 24, 2018). In sum, we agree with the AJ that Complainant failed to meet the standards of a hostile work environment. Retaliation Finally, we considered Claim 14, in particular, in the context of retaliation or reprisal. EEOC analyzes such claims broadly in the interest of protecting employees from that which may reasonably deter them exercising their rights under EEO laws. EEOC Compliance Manual, Sec. 8, “Retaliation,” No. 915.003 (May 20, 1998) at 8-15; Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Consistently, we have held Title VII prohibits any words or actions that have the chilling effect of discouraging a reasonable employee from engaging in EEO protected activities. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). 6 2020003747 Complainant may establish reprisal by demonstrating that: (1) she engaged in a protected activity; (2) the Agency was aware of her protected activity; (3) the Agency subjected the Complainant to adverse treatment; and (4) a clear nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). Here, Complainant merely overheard Supervisor’s comment to another co-worker, that it was possible to lie to an investigator. Although Complainant asserts that this remark was directed against her, we conclude Complainant failed to produce evidence of a sufficiently clear nexus as required for retaliation. CONCLUSION Based on a thorough review of the entire record and all contentions on appeal, we AFFIRM the Agency’s final action implementing the AJ’s finding 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 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 7 2020003747 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. 8 2020003747 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 October 19, 2021 Date Copy with citationCopy as parenthetical citation