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

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020003691 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ria T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003691 Agency No. 200H-0785-201902596 DECISION On February 26, 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 January 28, 2020 final decision 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 BACKGROUND During the relevant time, Complainant worked for the Agency as a Sales Associate Cashier in Albany, New York. On July 31, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female, pregnancy) when: 1. Between September 2018 and March 2019, the Assistant Canteen Chief (“S1”) subjected Complainant to discriminatory harassment as evidenced by the following actions: 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 2020003691 • assigned unwanted duties; • harassed Complainant due to her accommodations (having to sit while working and taking frequent breaks); • informed Complainant's co-workers that she (S1) would not adhere to Complainant's accommodations; • did not allow Complainant to leave work for appointments or to return to work after appointments; • told Complainant that if she did not work at least four hours, she had to take the entire day off and make up the time; • told co-workers that she wanted to terminate Complainant’s employment because Complainant was not working like she did before her pregnancy; • told co-workers that Complainant seeking advice from the union was not in her best interest because Complainant was a contractor and the Union could not help her; • harassed Complainant daily after the Canteen Chief, (S2), was out of town for training; and • humiliated Complainant in the presence of customers because Complainant had to use a stool to sit as a work modification due to her pregnancy. 2. On March 18, 2019, Complainant's tour of duty was changed from Monday, Tuesday, Wednesday, 8:00 a.m. to 4:30 p.m. to Monday, Tuesday, Wednesday, 8:00 a.m. to 4:00 p.m., effective March 25, 2019 (a reduction of 30 minutes per shift). 3. On March 20, 2019, Complainant was terminated from her position as a Store Associate Cashier in Canteen Service. After 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. 3 2020003691 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Claims 2 and 3 - Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Here, we agree with the Agency's finding of no discrimination. Regarding claim 2, the record indicates that Complainant's duty hours were shortened by 30 minutes in response to her accommodations. According to the Agency, when the canteen closed at 4:00 p.m., employees spent time stocking shelves for 30 minutes until their tour of duty ended. S2 indicated that because Complainant could not restock shelves when the store was closed due to medical restrictions, her duty hours were reduced by 30 minutes. S2 further indicates that Complainant's duty hours were changed in compliance with Agency policy which required that duty hours reflect the actual hours an employee worked. Complainant failed to establish that other similarly situated individual were treated more favorably concerning claim 2. Concerning Complainant's removal as indicated in claim 3, the record reflects that Complainant had been counseled regarding unacceptable behavior. According to S1, Complainant frequently left her work area for extended periods of time and consistently returned late from her break or from lunch. S1 further stated that Complainant talked excessively with co-workers which resulted in decreased productivity and left customers unattended. Again, Complainant failed to demonstrate that other similarly situated individual were treated more favorably with respect to removal from her position with the Agency. 4 2020003691 Claim 1 - Hostile Work Environment Harassment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). 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, sex/pregnancy. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant has failed to demonstrate that the Agency subjected her to hostile work environment as alleged. Specifically, the Agency management witnesses indicated that the only duties to which Complainant was assigned including stocking shelves, performing cashier duties, cleaning, and counting cashier drawers after closing which were part of her job description and performed by other sale associates. In addition, Complainant failed to provide specific evidence of how she was harassed regarding her accommodations or otherwise humiliated by the Agency. Upon review, the Commission concurs with the Agency's finding that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming, arguendo, that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. Complainant has failed to provide persuasive evidence that the alleged discriminatory conduct was motivated by her sex or pregnancy. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. Thus, upon careful review of the Agency’s decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that with respect to the incidents comprised in claim 1, the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination or a hostile work environment as alleged. 5 2020003691 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination for the reasons discussed above. 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. Any supporting documentation must be submitted together with the request for reconsideration. 6 2020003691 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 July 22, 2021 Date