[Redacted], Richelle N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021001248 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Richelle N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001248 Hearing No. 480-2020-00316X Agency No. 200P-0600-2019103024 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 13, 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. During the relevant time, Complainant worked as a Surgical Case Manager in the Surgical Healthcare Group at the Agency’s Veterans Affairs Long Beach Healthcare System in Long Beach, California. On July 8, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (48), and reprisal for prior protected EEO activity when: 1. On April 10, 2019, Complainant was charged with being 30 minutes absent without leave (AWOL); 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. 2021001248 2 2. On April 11, 2019, she was charged with being 15 minutes AWOL; 3. On May 23, 2019, she was issued a written counseling; 4. On September 20, 2019, Complainant’s supervisor, the Nurse Manager (S1) assigned Complainant additional duties and responsibilities to her workload; 5. On December 10, 2019, S1 assigned her additional duties to her workload; and 6. On December 17, 2019, S1 instructed Complainant not to call her personal cell phone when calling off of work and to delete her personal cell phone number. After its investigation, 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 notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. 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). 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 for Complainant. In his decision, the AJ found in favor of the Agency on all 6 claims. Regarding Claims 1 and 2, the AJ found that Complainant’s first-line supervisor (S1) was concerned about Complainant’s behavior, after receiving a call from VA police. 2021001248 3 On the morning of April 10, 2019, Complainant had been pulled over for speeding by the VA police and, after a disagreement with the officer, Complainant was issued a citation for speeding. S1 believed Complainant’s conduct was contrary to professional standards and conduct under VA policy, and discussed the matter with her own second-level supervisor (S3), the Executive Nursing Chief. S1 and S3, viewing Complainant’s absences in the context of her recent conduct, that the leave was unapproved, she was not unexpectedly sick, and she failed to inform her supervisor of the late arrival, decided to charge Complainant with AWOL for April 10 and 11, 2019. The AJ reiterated that Complainant admitted that she was absent without leave, she did not follow the requirements for requesting leave, and she did not identify any comparators. The AJ found that there was no evidence in the record to create an inference of discrimination for Claim 3. Complainant stated in her formal complaint that she received the written counseling due to her interaction with the officer on April 10, 2019, and the AJ found that Complainant did not provide evidence, beyond allegations, that she was given written counseling for any other reason than her conduct during the April 10, 2019 traffic stop. Regarding Claims 4 and 5, the Agency asserted that Complainant was assigned those duties because she had the smallest caseload and it was necessary to shar work with all employees, to handle staff shortages. The AJ properly determined, and the record so supports, that the Agency actions were motivated for the reason discussed above and were not prompted by discriminatory animus. Finally, the AJ found no discrimination regarding Claim 6, the AJ found that an Agency official instructed Complainant not to call the official on her personal cell phone, and to delete the official’s cell phone number after Complainant had called off work to the official on the personal cell phone at 4:00 a.m., awakening the official. Given the circumstances of this claim, the AJ found the Agency action reasonable and not motivated by discriminatory animus. 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 against by the Agency as alleged. Accordingly AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination. 2021001248 4 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. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021001248 5 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 March 23, 2022 Date