[Redacted], Taren P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJul 29, 2021Appeal No. 2020003472 (E.E.O.C. Jul. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taren P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003472 Agency No. 200J-0578-2019101686 DECISION 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 April 16, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant (PSA), GS-06, at the Edward Hines, Jr. VA Hospital in Hines, Illinois. Complainant worked in the Education Service (ES). S1, the Chief of the ES, supervised Complainant throughout this period. She filed a complaint alleging that: 1. The Agency discriminated against her because of her race (multiple), reprisal (prior EEO activity), and age (over 40) when she was subjected to disparate treatment in connection with the following incidents: 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. 2020003472 2 a. On January 17, 2019, her request to attend a continuing education course was denied. b. On August 12, 2019, she was told not to perform various “critical elements” listed in her position description. c. On October 21, 2019, she was denied training. d. On November 1, 2019, she received an “Unsuccessful” performance rating. 2. Whether the Agency discriminated against her in reprisal when she was subjected to disparate treatment in connection with the issuance of a proposed suspension on March 25, 2019. 3. Whether the Agency discriminated against her because of her race, reprisal, and age when she was subjected to a hostile work environment in connection with the incidents referenced above and the following incidents: • On November 30, 2018, she received an “Unsuccessful” performance rating. • On January 18, 2019, she received an e-mail, giving her a deadline to complete a task and requiring her to participate in weekly meetings. • On March 9, 2019, she was subjected to two “Weingarten” meetings. At the conclusion of the 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. Complainant requested a final decision, and the Agency issued a final decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. With respect to claims 1(a) and 1(c), S1 stated that the training courses Complainant requested to attend on January 17, 2019, and October 21, 2019, did not fall within the scope of her duties as a PSA. Neither of these courses involved any of the technical aspects of Complainant's duties. S1 therefore decided that it was not necessary for Complainant to attend either course. Regarding claim (1)(b), S1 stated that he was unaware of Complainant being told not to perform “critical elements” of her position. According to S1, she instructed Complainant to focus on responding to backlogged reimbursement cases regarding donated travel requests for FYs 2015 through FY 2017. S1, maintained that she told Complainant this in order to help her succeed in processing these cases and to provide her with a “clearly communicated assignment with deadlines.” 2020003472 3 With respect to claim (1)(d), S1 stated that she rated Complainant’s overall performance as “Unsuccessful” for FY 2019 because Complainant received an “Unacceptable” sub-rating in the critical element of “Education Support.” According to the record, Complainant failed to meet this critical element regarding: (1) resolving reimbursement cases for FYs 2015 through 2017; (2) providing e-mail productivity reports and updated spreadsheets; and (3) completing management-assigned training. Regarding claim (2), S1 stated that she proposed to suspend Complainant for 14 days because, as detailed in the proposed suspension, Complainant: (1) repeatedly violated the Agency’s Information Security and Confidentiality (ISC) policy; and (2) failed to follow supervisory orders. The Agency noted that there were 10 instances in which Complainant violated the ISC between January 20, 2017 and August 24, 2017. The proposed suspension further mentioned five instances in which Complainant failed to follow S1’s orders between February 1, 2019 and March 5, 2019. Regarding the three incidents raised in claim 3, the Agency argued that Complainant failed to show that she was subjected to reasonably denigrating or insulting verbal or physical conduct because the incidents giving rise to her harassment claim amounted to common workplace occurrences. According to S1, Complainant’s November 30, 2018 “Minimally Successful” performance rating was because she was rated unacceptable on two non-critical elements: Information Security & Confidentiality and Competency and Performance Improvement. With respect to the January 18, 2019, email, S1 stated that the assignment that was provided to Complainant was intended to help her succeed in resolving the unpaid or unresolved fiscal years 2015, 2016, and 2017 reimbursements, not to set her up to fail. Complainant was responsible for processing these reimbursements. S1 told her to focus on the assignment, and not to work on any new payment requests. Finally, S1 stated that there was only one Weingarten meeting held on March 6, 2019, not two. She maintained that she informed Complainant of the reason for the Weingarten meeting, on or around March 4, 2019. The meeting was about two topics, i.e., the privacy violation findings and her assignment deadlines. 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”). 2020003472 4 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the 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 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, 441 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, age, and retaliation for engaging in prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for claims 1(a), 1(b), 1(c), 1(d), and 2. We also find no persuasive evidence of pretext. As for Complainant’s hostile work environment claim, we find at the outset that a finding of a hostile work environment is precluded regarding claims 1(a), 1(b), 1(c), 1(d), and 2 by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. Moreover, we find no persuasive evidence that any other matter Complainant deemed harassing was motivated by discrimination, i.e. the incidents comprising claim 3. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Here, we find that the actions in this case did not involve such discriminatory motives and were not severe or pervasive enough to subject Complainant to unlawful harassment. 2020003472 5 CONCLUSION Upon review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subjected to a hostile work environment by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2020003472 6 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 July 29, 2021 Date Copy with citationCopy as parenthetical citation