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

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2020003822 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachel F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003822 Hearing No. 520-2019-00467X Agency No. 200H-0523-2018105396 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 20, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Clinical Pharmacy Specialist in Oncology at its Boston Hospital in Jamaica Plains, Massachusetts. In February 2016, Complainant sought EEO counseling alleging that she was being discriminated against by her then supervisor, A1, involving, in part, her telework schedule. In June 2016, she entered into a settlement agreement with the Agency to resolve her complaint. The settlement agreement resulted in Complainant being supervised by S1, not A1. 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. 2020003822 2 On September 5, 2018, Complainant filed the instant complaint alleging that she was subjected to a hostile work environment (both sexual and non-sexual) based on sex (female and parental status)2 and in reprisal for prior EEO activity when: 1. on September 24, 2016, she was told by S1, the Chief of Pharmacy, that he notified A1 to “stop trying to find a way to get [her] back into the office full- time.” A1 continues to make requests. Complainant feels he is making these requests to discriminate against her for her parental status. 2. on July 14, 2016, A1 sent a direct email to Complainant pertaining to her work. Complainant stated that this was a direct violation of the settlement agreement of her prior EEO complaint. 3. on September 14, 2016, A1 sent a direct email to Complainant pertaining to her work. Complainant maintained that this was a direct violation of the settlement agreement of her previous EEO complaint. 4. on February 13, 2018, C1, a coworker, indicated that A1 brought up Complainant’s work ethic and schedule in a meeting. 5. on April 25, 2018, A1 discounted Complainant’s initiative to reconcile a big mistake regarding a biosimilar drug dispensed by the Agency’s Boston Pharmacy. 6. on May 10, 2018, A1 reversed Complainant’s recommendation. A1 called A2, a Pharmacy Executive, stating, that Complainant “stepped on his toes.” Complainant was asked to be involved in the project. Pharmacists involved: B1, B2, and B3. 7. on June 23, 2018, an instant message received from S2, the new incoming Chief of Pharmacy, stated that Complainant’s name came up in conversation with A3, the Deputy Medical Director, alerting her of a concern A1 brought to her attention regarding Complainant’s current work schedule and her involvement in research. 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 requested a hearing. The Agency submitted a motion for a decision without a hearing, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued a final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The AJ noted that the gravamen of Complainant’s complaint involved her continued concerns regarding the behavior of her former supervisor, A1. The AJ noted that by Complainant’s own account, since the settlement agreement was executed, the only direct communication she had with A1 that did not involve a third party was a pair of e-mails she received in 2016. 2 We note that in general, parental status is not a protected class covered by the statutes enforced in the Federal EEO process. See 29 C.F.R. § 1614.101. 2020003822 3 The AJ found that the seven events at issue, which took place over a two-year period, fell well short of being sufficiently severe or pervasive enough to have altered the conditions of Complainant’s employment and create an abusive working environment. Specifically, with respect to claim 1, the AJ found that even if S1, the former Chief of Pharmacy, told Complainant that he advised A1 to abandon any further effort to terminate Complainant’s telework schedule, this behavior would not have been an adverse employment action, but would have been helpful and demonstrated that Complainant was receiving support for her efforts to continue working part-time in the Pharmacy while at home the remainder of the week. With respect to claims 2 and 3, the AJ noted that Complainant’s allegations that A1 breached the settlement agreement between she and the Agency was the subject of a decision already issued by the Office of Federal Operations. In Justine R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170775 (May 10, 2017), the Commission noted Complainant’s claim that on two separate occasions, including July 14, 2016, she received emails directly from A1. The decision found that, “While it appears that the Agency met the obligation to inform the former supervisor, it does not appear that the Agency was taking sufficient steps to ensure compliance with the Agreement.” The Agency was directed to provide evidence it was complying with the settlement agreement. The AJ found that to the extent Complainant was asking him to rule on whether a breach occurred, it had already been decided and was outside of his jurisdiction; however, he did find that A1’s actions in sending the emails to Complainant did not constitute hostile or adverse treatment, because the two emails were routine work-related emails concerning patient information and when Complainant brought it to S1’s attention all communication from A1 was rerouted through S1. Claim 4 concerned a meeting on staffing levels in the Pharmacy which Complainant did not personally attend. During the meeting, A1 made the comment that because one pharmacist was working from home two days a week, it was affecting the budget and staffing. According to Complainant, she was told that A1 stated, “we have an oncology pharmacist who is only a 0.7 FTE, if we could get research to pay for a 0.3 FTE, we could add that to pharmacy staffing.” The AJ found that Complainant speculated that the statement was intended as inflammatory but that she failed to show that there was anything inflammatory about the statement which primarily concerned staffing and budgeting. The AJ also noted that while Complainant contended that some may have deduced that A1 was referring to her, even though he did not use her name, nothing contained in the statement indicated that he was attempting to disparage Complainant. With respect to Claims 5 and 6, the AJ found that Complainant did not establish that these events occurred because of her membership in a protected class. These matters, according to the AJ, both relate to Complainant having provided advice to a third-party when she discovered that some patients had been placed on biosimilars. According to Complainant, in late April 2018, the pharmacy department dispensed a biosimilar without informing the provider or the patients. The AJ noted that claims 5 and 6 do not relate to Complainant’s work, but rather to the work of a third party. Complainant was asked by a colleague, B1, to provide her opinion regarding whether to continue the patients on the biosimilars. 2020003822 4 Complainant recommended continuing patients already on biosimilars unless the patient’s provider opposed it and preferred returning them to the original product. The Patient Safety Committee, however, became involved and reviewed the situation. A1, according to Complainant, disagreed with her recommendation. Complainant also believed that A1 complained to his colleague, A2, that Complainant had overstepped by involving herself in the situation. The AJ found that, even if Complainant’s assertions regarding claims 5 and 6 were true, Complainant failed to show how A1’s professional disagreement or complaint to a colleague about Complainant’s advice concerning a drug’s substitution constituted harassment based on her protected classes. With respect to claim 7, Complainant alleged that, on June 23, 2018, she received an instant message from S2, the incoming Chief of Pharmacy, indicating that A3, the Deputy Medical Director alerted her to an issue regarding Complainant’s work schedule and involvement in research. While Complainant maintained that the instant message was caused by actions taken by A1, the AJ noted the lack of evidence to support this assertion. According to the AJ, the undisputed facts showed that Complainant herself raised the issue in April 2018, with the then Acting Chief of Pharmacy, because the MOU, which governed her work schedule, was due to be renewed the following month. Thereafter, the MOU was renewed for a three-month period until S2 came on board. ANALYSIS AND FINDINGS 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 animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 2020003822 5 Like the AJ, we find that Complainant has simply not established that she was subjected to any conduct, verbal or physical, that involved her protected classes or that was based in any way on her protected classes. Furthermore, we find that the incidents, considered together, are not sufficiently severe or pervasive so as to constitute a hostile work environment. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including the parties statements on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination.3 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. 3 Complainant’s September 5, 2018 complaint also contained an allegation that she was discriminated against based on sex (female and parental status) and reprisal (prior EEO activity) when, on July 27, 2018, she was constructively discharged in connection with being forced to resign from her position. On August 20, 2019, the Agency issued a final decision which found that Complainant was not constructively discharged. Complainant was notified of her right to file an appeal with the Merit Systems Protection Board (MSPB), and she subsequently filed such an appeal. On February 19, 2020, the MSPB dismissed Complainant’s appeal for lack of jurisdiction (finding that Complainant “failed to make a nonfrivolous allegation that her resignation was involuntary”). Because Complainant initially filed a mixed case complaint, the Agency, pursuant to 29 C.F.R. § 1614.302(b), was obligated to notify her after the MSPB’s dismissal that she had the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision, pursuant to 29 C.F.R. § 1614.110, on her constructive discharge claim. The record does not, however, indicate whether Complainant was so notified by the Agency. If the Agency has not notified Complainant of her rights to resume processing the constructive discharge claim, then it should do so. Complainant did not raise this issue with the EEOC AJ or on appeal. 2020003822 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. 2020003822 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 March 2, 2021 Date