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

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2021004286 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanta S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004286 Hearing No. 450-2020-00182X Agency No. 2003-0756-2019103355 DECISION On July 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 29, 2021, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant worked as a Clinical Psychologist, GS-0180-13, at the Agency’s Medical Center in El Paso, Texas. On August 12, 2019, Complainant filed a formal EEO complaint alleging that the Agency2 discriminated against her and subjected her to a hostile work environment on the basis of disability (Bipolar Disorder) 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 Complainant identified the following individuals as responsible officials: • The former Military Trauma Treatment Program (MTTP) Supervisor (S1) • The then-current Acting MTTP Supervisor (S1a) • The former Chief of Mental Health Services (S2) • The then-current Acting Chief of Mental Health Services (S2a) • The Administrative Officer who was Executive Assistant to Medical Center Director (AO) 2021004286 2 1. In February 2016, S1 and S2 notified Complainant that they were going to be looking into her cases to see if she had been providing quality care to her patients; 2. On January 15, 2018, S1 issued Complainant a Focused Professional Practice Evaluation (FPPE) write-up for having incomplete physician’s notes in her patients’ files; 3. On April 15, 2018, the AO required Complainant to submit new Family Medical Leave Act (FMLA) paperwork to S1a within two days or she would be charged with being absent without leave (AWOL); 4. On May 29, 2018, the RM provided Complainant with a “write-up” and told her that she could be removed if she received two more; 5. On September 27, 2018, S2a issued Complainant an FPPE write up, and threatened that she could not make any mistakes in the next few months or she would risk losing her privileges; 6. On October 15, 2018, S1a only rated Complainant “Fully Successful” on her annual performance appraisal because of her use of FMLA leave; 7. On December 5, 2018, S2a told Complainant that she had asked the FPPE reviewers to look for anything that they could find wrong with Complainant’s notes; and 8. On February 15, 2019, as a result of the harassment, Complainant was forced to resign from her position as a Physician, Mental Health Services. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant initially requested a hearing, but withdrew her request. The Agency then issued a final decision finding that Complainant was not subjected to discrimination, a hostile work environment or constructive discharge as alleged. This appeal followed. Complainant was first diagnosed with bipolar disorder in 2010. Her condition is permanent. She had been under the care of a psychiatrist since May 2014. Complainant averred that her condition was permanent and that it limited her major life activities, such as caring for herself. She stated that her live-in boyfriend helped her with food, transportation, taking a shower, doing the dishes, and financial planning. She maintained that she was able to perform the essential functions of her position, which entailed providing psychotherapy to Veterans with trauma issues and substance abuse disorders. She reported that she was taking various medications for her condition including quetiapine, topiramate, and duloxetine. IR 91-92, 235. • A Risk Manager (RM) • A Program Support Assistant (PSA) 2021004286 3 As to allegation (1) Complainant claimed that in February 2016, she had entered a two-part clinical note into the system and that S1 and S2 had accused her of poor-quality patient care because they had only read the first part and had refused to read the second part. IR 92. Regarding the FPPE at issue in allegation (2), Complainant averred that her notes were not incomplete because she had handed off the case to another provider who had finished the notes. IR 92. The EEO Investigator noted that S1 resigned from the Agency on July 8, 2018, and S2 retired on April 28, 2017. IR 81, 234. Consequently, the Investigator was unable to obtain sworn statements from these individuals. The Chief of Staff, S1a, and S2a all affirmed that they had no knowledge of the incidents involving S1 and S2. IR 120, 128-31, 131-33, 154-56. When asked about the FPPE in January 2018, the Chief of Staff and S1a again stated that they had no knowledge of the incident. IR 121, 133-35. S1a averred that while he did not yet become Complainant’s supervisor, he was aware that an FPPE had been requested due to concerns about incomplete documentation and quality care. IR 156-58. Regarding allegation (3), Complainant asserted that, beginning on April 17, 2018, management erroneously told her that her FMLA forms were for intermittent rather than continuous leave when the opposite was true. She also claimed that she was warned that if she did not submit her FMLA paperwork within two days, she would be charged with AWOL. In addition, she stated that although she timely submitted her paperwork, the Agency did not process it in a timely fashion and charged her with AWOL as a result. Finally, she averred that the AWOL charge was never corrected. IR 92. In an email dated June 26, 2018, Complainant reported that while she was out on FMLA leave during the pay period ending on May 12, 2018, she was listed as AWOL. However, affidavits from S1a and the AO, timekeeping records, emails, correspondence, and memoranda exchanged among Complainant and other officials indicated that by June 4, 2018, Agency management had approved Complainant’s request for LWOP for the period of May 4, 2018 through May 20, 2018. IR 159-61, 203, 245-58. Allegations (4), (5), and (7), concerned the process through which Complainant was issued an FPPE. Regarding incident (4), Complainant averred that the “write-up” she received was for an incident that had been documented in a patient record a year or two before it was brought to her attention, and that the situation felt like harassment because it had the appearance of management “digging for anything” that could be used against her. IR 93. The RM denied that he ever told Complainant that she could be removed if she received “two more write-ups.” He affirmed that he explained the FPPE process to Complainant. In particular, he explained that FPPEs were protected peer reviews that could not be used for disciplinary actions. He further explained that if a provider had three or more level 2 or level 3 assignments in combination, that this could trigger a non-protected management review recommendation from the peer review committee. IR 185- 86, 281, 285, 299, 316, 331, 343. Regarding allegation (5), Complainant asserted that she was told that she inaccurately assessed patients who she reported were at imminent risk of suicide, and that she sent a patient to a partial hospital program lasting for eight weeks rather than the customary two weeks. IR 93. S2a defended her decision to issue Complainant the FPPE for inappropriate determination of care level and inappropriate clinical intervention. 2021004286 4 S2a affirmed that during the first 30 days of the FPPE period, she needed to achieve 95 percent compliance, during the second 30 days, she needed to achieve 98 percent compliance, and during the last 30 days, she needed to achieve 100 percent compliance. IR 140-41, 240-42. As to allegation (7), Complainant maintained that it was S2a who told her that she had asked FPPE reviewers to look for anything they could find wrong with her clinical notes. IR 94, 111-12. S1a denied that he had asked reviewers to look for anything wrong with Complainant’s notes. IR 167- 68. S2a averred that she provided the reviewers with a standard set of instructions specifying what areas to focus on, but she was required to tell the reviewers that if during the course of their review they found additional issues regarding potential threats to patient safety, those would also need to be addressed at that time. IR 144-45. With regard to allegation (6), Complainant’s performance appraisal for FY 2018 indicates that she was rated “Fully Successful” on the performance elements of psychological services, agency mission and responsibility, professional skill, and professional activities. On the fifth performance element, customer care and safety practices, she was rated “Exceptional.” She was given an overall performance rating of “Fully Successful.” IR 264-68. Complainant averred that during her discussion with S1a about her performance, S1a told her that her productivity was low, leading her to believe that the real reason for the low rating was the amount of FMLA leave she had taken. IR 93-94. S1a denied that Complainant’s use of FMLA leave was a factor in her rating. He averred that Complainant’s productivity periods were adjusted based upon the time she was actually at work. IR 165-67, 246. In an email dated February 4, 2019, Complainant notified S1a of her resignation. In the email, she stated: “I’m resigning and my last day will be February 15th. Please cancel all my clinics so I can start contacting my Vets. I am really going to miss working with the Veteran population here. Wish me luck in my future endeavors.” IR 239. With respect to allegation (8), Complainant maintained that she was constructively discharged. The standard form 50 documenting Complainant’s resignation indicates that she resigned, effective February 15, 2019. IR 237-38. Complainant claimed that management forced her to achieve a perfect 100 percent on all of her records and threatened her with termination if she did not. She also averred that each time she returned from FMLA leave, management would look for or find errors with her work, that her psychiatrist told her that extreme stress at the workplace could trigger a bipolar episode, and that management, S2a in particular, was “out to destroy her.” She admitted that the incidents of alleged abuse from management did not interfere with her work performance. IR 94-95. 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 2021004286 5 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”). Hostile Work Environment To prevail on her claim of discriminatory harassment, Complainant would have to 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 classes; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find that Complainant satisfies the first two prongs of the Henson test. As an employee with a disability, she belongs to a class protected by the Rehabilitation Act. The conduct to which she was allegedly subjected, including having her work scrutinized, being the subject of FPPE inquiries, and receiving a lower-than-expected performance evaluation, were certainly unwelcome from her own, subjective viewpoint. The antidiscrimination statutes that the Commission enforces are not civility codes, however. 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). Complainant must therefore present enough evidence to show 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 show that the alleged conduct was motivated by unlawful considerations of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, can the question of Agency liability for the harassment present itself. Applying the third prong of the Henson test, we note that indicators of discriminatory intent or motive include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or unexplained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). As to allegations (1) and (2), the investigator had documented her unsuccessful efforts to obtain sworn testimony from S1 and S2, both of whom had left the Agency by the time the investigation had commenced. The record contains no documentation of an initiation of an FPPE or of an attempt to initiate an FPPE by S1 or S2. Even if S1 or S2 had requested an FPPE, Complainant has not presented any testimonial evidence from witnesses other than herself or documents tending to show that S1 or S2 were motivated by unlawful considerations of her medical condition in connection with their alleged efforts to launch an FPPE. 2021004286 6 Indeed, the fact that Complainant waited for more than two years after the occurrence of the incident at issue in allegation (1) to contact an EEO counselor further undermines her contention that her disability was the reason for S1 and S2’s alleged decision to initiate an FPPE. See IR 20 (initial contact with EEO Counselor occurred on April 28, 2019). As to allegation (3), the AO and S1a explained that Complainant had to submit documentation of her medical condition, her requests for approved advance leave, and approval for LWOP, and that any undocumented absences would be considered as AWOL until necessary corrections were made. As to allegations (4), (5), and (7), the RM and S2a averred that the FPPE was a protected non- disciplinary process for making assessments about the quality of patient care and that concerns about Complainant’s determinations regarding suicide risk and need for partial hospitalization among several patients are what triggered the FPPE in her case. As to allegation (6), S1a denied that he had given Complainant a rating of Fully Successful due to her use of FMLA leave and stated that Complainant’s productivity periods were adjusted based on the time she was at work so that she would not be penalized due to her absences. Beyond her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses besides herself nor documents which contradict or undercut the explanations provided by the various named officials or which would cause us to question their truthfulness as witnesses. We therefore agree with the Agency that the evidentiary record is not sufficient to establish that any of those officials relied upon unlawful considerations of Complainant’s disability in connection with allegations (1) through (7). Even if such a motive had been established, Complainant’s hostile work environment claim would still fail under Henson. In applying the fourth prong of the Henson test, we find that none of the incidents complained of, either singly or collectively, were severe or pervasive enough to rise to the level of harassment. Mikki P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182183 (Feb. 19, 2020). Moreover, it is well established that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences which are not sufficiently severe or pervasive to constitute harassment, unless the incidents occurred to harass complainant for a prohibited reason. Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017). We note in particular that the FPPE process at issue in allegations (2), (4), (5), and (7) could not be used in or in support of any disciplinary action. With respect to allegation (6), according to S1a, a performance appraisal rating of Fully Successful was likewise not considered adverse. IR 165. There are no documents or sworn statements in the record of any official telling Complainant that she was under the threat of being fired. Accordingly, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. Constructive Discharge - Allegation (8) The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary 2021004286 7 resignation resulted from the intolerable working conditions. Helen G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022001581 (Sept. 13, 2022) citing Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). For the reasons discussed above, none of the allegations described working conditions so intolerable that a person in Complainant’s position would have felt forced to resign. Equally significant is that none of the conduct described by Complainant was found to have been discriminatory or otherwise connected to her disability. Accordingly, the Commission finds that Complainant’s resignation was not a constructive discharge. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021004286 8 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. 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 11, 2022 Date