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

Equal Employment Opportunity Commission

Nov 16, 2022

Appeal No. 2021004550 (E.E.O.C. Nov. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Phyllis F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004550 Hearing No. 430-2019-00413X Agency No. 2004-0659-2018104504 DECISION On August 11, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 19, 2021 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 For At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Specialist, GS-0201-12, at the Agency’s VA Medical Center in Salisbury, North Carolina. On July 18, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), color (Black), age (YOB: 1960), and in reprisal prior EEO activity when: (a) on April 5, 2018, Complainant’s first-level supervisor (S1) denied Complainant’s request for a four-day telework week; (b) on May 2, 2018, Complainant learned that her third-level supervisor (S3) accessed her emails, monitored her, and made comments about her; (c) on May 24, 2018, S1 placed Complainant on a detail; and (d) on August 23, 2018, 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. 2021004550 2 Complainant was given a notice of a proposed removal; on September 7, 2018, the removal was approved with an effective date of September 28, 2018. 2 In February 2017, Complainant claimed that she and the former Human Resources Officer entered into an informal verbal agreement granting Complainant a four-day telework workweek. A new Human Resources Officer (S3) entered the position and discovered that Complainant did not have a properly approved telework agreement. S3 instructed S1 to have Complainant submit a telework agreement so that it could go through the proper procedure. Complainant completed the form, but S1 did not support the requested schedule and S3 concurred. As a result, the requested telework agreement was denied but Complainant was approved for one day of telework per week. A co-worker submitted a Report of Contact alleging Complainant inappropriately inquired about her niece’s Office of Workers’ Compensation Programs claims and termination from the Agency. S3 initiated a Fact-Finding Investigation to determine if Complainant had engaged in prohibited personnel practices regarding her niece’s employment with the Agency. Pending the results of the Fact-Finding Investigation, S1 placed Complainant on a detail assignment performing non-HR related duties effective May 24, 2018. Part of the investigation involved the investigator searching Complainant’s work email and instant messaging with respect to specific terms to determine if a prohibited personnel practice had occurred. A Memorandum concerning the results of the investigation was issued May 31, 2018. The investigator concluded that Complainant inappropriately accessed the USA Staffing website, and inappropriately disclosed the resumes of two individuals which contained personally identifiable information to her sister, who also worked for the Agency. The investigator found the access and disclosure were not shown to be for treatment, payment or healthcare operations, nor was the access and disclosure determined to be part of Complainant performing her official job duties. On August 28, 2018, Complainant was issued a notice of proposed removal for unauthorized access of government systems, unauthorized disclosure of personally identifiable information, conduct unbecoming a federal employee, and misuse of government system. On September 7, 2018, Complainant was issued a Decision to Remove, with an effective date of September 28, 2018. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency. 2 The Agency dismissed Claim (a) as an independent claim of discrimination due to untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The claim was accepted as part of Complainant’s overall hostile work environment claim. Complainant raised no challenges regarding this matter on appeal. 2021004550 3 In the decision, the AJ found that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Agency investigated and subsequently determined that Complainant had engaged in serious misconduct, which was documented in the record evidence. Beyond opinion and bare assertions, the AJ determined the record contained no evidence supporting a nexus between Complainant’s protected classes and the events she challenged. Additionally, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Complainant failed to demonstrate that the Agency officials in this matter harbored discriminatory or retaliatory animus or that the legitimate, non-discriminatory reasons provided by the officials were pretext for unlawful discrimination or reprisal. Furthermore, the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 2021004550 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021004550 5 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 November 16, 2022 Date