[Redacted], Simona D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 19, 2021Appeal No. 2020003840 (E.E.O.C. Oct. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Simona D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003840 Agency No. 200P-0664-2019103645 DECISION On June 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 22, 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 period at issue, Complainant worked as a Program Support Assistant, Grade GS-6, at the Agency’s VA Healthcare System in San Diego, California. On June 21, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1. Beginning February 2018, Complainant’s leave was not approved; Complainant was stalked; Complainant was cursed and yelled at; Complainant’s work duties were removed; Complainant was rated Fully Successful instead of Outstanding; and Complainant was assaulted. 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 2020003840 2. On March 14, 2019, Complainant was issued a proposed termination. On or about March 27, 2019, Complainant resigned from her position (constructive discharge). After an investigation, the Agency provided Complainant a copy of the report of investigation and notified Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final agency decision pursuant to 29 C.F.R. § 1614.110(b). On May 22, 2020, the Agency issued its final decision, fining no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS An Agency’s final action without a hearing and it is subject to EEOC de novo review. 29 C.F.R. § 1614.405(a). EEOC’s de novo standard of review requires we “examine the record without regard to the factual and legal determinations of the previous decision maker,” and “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”). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9, § VI.A. (Aug. 5, 2015) We reviewed the first claim by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination - that gender discrimination or retaliation was a factor in an Agency’s employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). We dispense of the prima facie case, where the Agency articulates legitimate and nondiscriminatory explanations for its actions; then our analysis proceeds directly to whether Complainant demonstrated with preponderant evidence, that any of the Agency’s actions were discriminatorily motivated. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Regarding Claim 1, the Hospital Housekeeping Officer (male) stated that he had only rated two out of the eleven employees “Exceptional” and that Complainant and the other eight employees and Complainant merited “Fully Successful” ratings. The Hospital Housekeeping Officer denied Complainant’s leave requests after Complainant had exhausted her leave balance. The Agency attributed revocation of Complainant’s payroll authority to a business decision by Complainant’s new supervisor, and to the Agency’s changes in its system for managing timecards. Complainant did not prove, by a preponderance of the evidence, that these legitimate proffered reasons for the disputed actions were a pretext designed to mask sex discrimination or unlawful retaliatory animus. 3 2020003840 Moreover, to the extent that the matters addressed in claim 1 are encompassed in a harassment claim, the record revealed that no witnesses supported the allegations of assault, cursing or stalking. Beyond bare assertions, Complainant has simply provided no evidence to support her assertion that discriminatory animus or EEO protected activity played any role whatsoever in these how she was treated by the Agency. Oakley v. U.S. Postal Serv., EEOC Appeal No. 019982923 (Sep. 21, 2000). Regarding Claim 2, a discriminatory constructive discharge occurs if the Agency, motivated by discriminatory animus, created working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in Complainant’s position would feel compelled to resign. To prevail, Complainant must show that: (1) a reasonable person in her position would have found her working conditions intolerable; (2) the intolerable working conditions resulted from an Agency’s prohibited discriminatory treatment; and (3) the intolerable working conditions caused Complainant to involuntarily resign. Ileana R. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120120394 (Nov. 4, 2015). In the present case, the Agency defeated the constructive discharge claim because the Assistant Director (female) who was Complainant’s third-line supervisor testified that Complainant had given her notice that she was resigning because Complainant had accepted employment at another Agency. CONCLUSION We AFFIRM the Agency’s final decision because Complainant failed to prove to a preponderance of the evidence that she was subjected to discrimination and or unlawful retaliation as alleged. 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. 4 2020003840 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit her request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. 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. 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via FedSEP. 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files her request via FedSEP, 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. 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. 5 2020003840 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 19, 2021 Date Copy with citationCopy as parenthetical citation