[Redacted], Sharon H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 16, 2021Appeal No. 2020004325 (E.E.O.C. Dec. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004325 Hearing No. 480-2019-00158X Agency No. 200P-0664-2017105216 DECISION On June 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 8, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant worked as an Associate Nurse Executive (ANE) RN-IV, at the Agency’s Health Care Complex in San Diego, California. On October 23, 2017 (and later amended), Complainant filed a formal EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female), age (60), and reprisal (prior protected EEO activity) when: 1. From February 12, 2017 to February 13, 2018, the Associate Director of Nursing, her second-level supervisor (S2), openly criticized Complainant whenever she asked a question, sent Complainant several inappropriate emails, publicly announced a detail 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. 2020004325 2 assignment for Complainant in a manner calculated to embarrass her, and sent Complainant a patient report to her home email; 2. On August 28, 2017, S2 intentionally excluded Complainant from covering for her as the “Associate Director of Patient Care Services (ADPCS)” and assigned that task to a junior nurse; 3. On September 13, 2017, S2 moved Complainant’s office and excluded her from meetings; 4. On October 2, 2017, S2 assigned Complainant to a 120-day detail to Sterile Processing Services (SPS); 5. On December 29, 2017, Complainant learned from payroll that S2 had designated her as absent without leave (AWOL); 6. From January 31, 2018 through February 5, 2018, S2 subjected Complainant to “harassing conversations;” 7. On January 31, 2018, S2 detailed Complainant to the position of Interim Chief of SPS for 120 days; 8. On January 31, 2018, Complainant was removed from her office to a basement office that did not have a computer; 9. On February 12, 2018, Complainant filed for retirement with an effective date of March 31, 2018. 2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency thereupon issued its final order fully implementing the AJ’s decision. The instant appeal followed. On appeal, Complainant contends that the AJ abused his discretion in not sanctioning the Agency and erred in issuing a summary judgment decision. 2 The incidents have been rearranged in chronological order for clarity. 2020004325 3 ANALYSIS AND FINDINGS The AJ’s Abuse of Discretion As an initial matter, we note that Complainant argues on appeal that several of the AJ’s rulings regarding discovery and other matters were erroneous and amounted to an abuse of discretion. Additionally, Complainant contends that the Agency violated the AJ’s orders by failing to adequately respond to her discovery requests and the AJ erred in declining to sanction the Agency for its conduct. We note that under 29 C.F.R. §§ 1614.109(a) and 1614.109(e), AJs are given wide latitude in directing the terms, conduct, and course of the hearing. Upon review of the entire record, Complainant’s assertion that the AJ abused his discretion at the hearing did not surpass the high bar for reversible AJ error. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sep. 13, 2016). Complainant filed numerous motions and discovery requests and the AJ diligently attempted to respond to each one of them. In particular, the AJ actually did sanction the Agency in one instance by deeming Complainant’s requests for admission to be admitted. There is no evidence indicating that additional or more severe sanctions were warranted. Complainant has not shown that the Agency’s alleged compliance failures were in bad faith. Thus, after reviewing the entire record, we are not persuaded that the Agency’s acts or omissions amounted to contumacious conduct, were intentionally prejudicial to Complainant’s case, or caused unconscionable delay. Eileen S. v. Dep’t of Agric., EEOC Appeal No. 2021003523 (Oct. 7, 2021) citing Maxima S. v. Dep’t of Justice, EEOC Appeal No. 2020002977 (Sep 21, 2021). Consequently, we find that Complainant failed to demonstrate that the AJ abused his discretion in denying Complainant’s additional motions to sanction the Agency. Standard of Review The Commission's regulations allow an AJ to grant summary judgment when he 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, Aug. 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). Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2020004325 4 Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since S2 articulated legitimate and nondiscriminatory reasons for her actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (1), S2 denied that she criticized or belittled Complainant in any way, publicly or privately. With regard to announcing Complainant’s detail, S2 averred that announcing changes in the service during leadership meetings kept the team up to date about what was going on. S2 also pointed out that Complainant had received many accolades from the leadership team. IR 122. As to incident (2), S2 affirmed that she did not have confidence in Complainant’s ability to fulfill the ADPCS role and that the individual she chose for the acting position had many years of nursing supervisory experience. IR 126, 139-40, 146, 150, 152. Concerning incident (3), S2 asserted that Complainant had been informed months in advance that her office would be moved so that she could be closer to all of nursing leadership, and that the move had been approved by the Space Committee in the fall of 2017. S2 also denied that she excluded Complainant from meetings, explaining that she excused Complainant from some of the meetings so that Complainant could concentrate on her ANE responsibilities. S2 pointed out that when Complainant was detailed to SPS, she had granted Complainant’s request to be excused from nurse leadership meetings. IR 122-23, 128. 138. 140. With respect to incidents (4) and (7), S2 averred that she twice detailed Complainant to SPS, citing her experience as an operating room nurse, OR nurse manager, and an ANE. S2 pointed out that Complainant’s role as the ANE for peri-op services qualified her for the position. S2 also explained that there were problems in the SPS that Complainant was uniquely qualified to help correct. IR 123, 130-31, 146, 155. With regard to incident (5). S2 stated that Complainant had failed to follow the appropriate leave request policy when she took extended leave, and that Complainant’s failure to respond to her telephone calls left her with no choice but to mark Complainant down as AWOL. S2 also averred that Complainant’s pay and leave were restored as soon as Complainant provided the medical information necessary to document her absence. In an email dated January 4, 2018, Complainant acknowledged that the error to her timecard had been corrected. IR 123-24, 137, 147-48, 163. Regarding incident (6), S2 denied that she ever had any contentious conversations with Complainant. S2’s supervisor, the Director of the facility confirmed that he had no knowledge of any harassing conversations between Complainant and S1. IR 123, 146. As to incident (8), S2 stated that she was unaware that Complainant did not have a computer in her new location at the time her office was moved. 2020004325 5 S2 and the Director also affirmed that Complainant was provided with a computer by the Administrative Officer right after she had notified him of the situation. IR 123, 133, 146-47, 157. Concerning incident (9), in an email addressed to S2 and the Director, Complainant stated that she had decided to retire at the end of the month, and that it had been an honor to serve the nation’s veterans. S2 averred that she wished Complainant the best. A standard form 50 indicated that Complainant had voluntarily retired on March 31, 2018. IR 124, 134, 141, 147, 159, 172, 301. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether any S2’s explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that she had been discriminated against because of her age, sex and prior EEO activity, Complainant averred that S2 wanted her out, and reiterated that S2 excluded her from important meetings, publicly humiliated her and invaded her privacy. But when asked whether there were ever any inappropriate statements, comments, or slurs made about her age, sex or previous EEO activity, she responded that she did not know. IR 78-79, 83-88. Several of Complainant’s colleagues confirmed that S2 was a poor manager who lacked people skills, played favorites, and bullied those other than her “chosen ones,” but could not attribute this to any unlawful consideration of Complainant’s age, sex, or prior EEO activity on the part of S2. IR 94- 95, 100-02, 105-09, 111. Construing all inferences in favor of Complainant, we ultimately agree that the evidentiary record is not sufficient to raise a genuine issue of material fact that S2’s reasons for her actions were pretextual. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), her claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020004325 6 Constructive Discharge The central question in a constructive discharge/retirement claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). 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) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Terrence F. v. Nat. Aeronautics & Space Adm., EEOC Appeal No. 2021001419 (Nov. 22, 2021) citing Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). When asked what prompted her to retire, Complainant reiterated that it was S2’s bullying and failure to recognize her accomplishments or provide professional feedback. In particular, she asserted that if she had named S2 as the reason for her retirement in the exit survey she had taken, the Agency would have thrown out the results of the survey. IR 89-90. This assertion plainly contradicts what she wrote in her email notifying S2 of her intent to retire. As with the other issues in this case, we find that the evidentiary record is not sufficient to raise a genuine issue of material fact as to whether, due to discriminatory or retaliatory animus, S2 created working conditions so objectively intolerable that an individual in Complainant’s situation would feel compelled to retire. As such, we find that Complainant’s constructive retirement claim must fail. CONCLUSION 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, 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. 2020004325 7 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. 2020004325 8 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 December 16, 2021 Date Copy with citationCopy as parenthetical citation