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

Equal Employment Opportunity Commission

Nov 16, 2021

Appeal No. 2020004156 (E.E.O.C. Nov. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004156 Agency No. 200J-1502-2018101611 DECISION On June 23, 2020, 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 May 26, 2020, final agency decision (FAD) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, we AFFIRM the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director (Supervisory Readjustment Counseling Therapist), GS-0101-12, of the Quad Cities Vet Center in East Moline, Illinois. On February 15, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black/dark complexion), disability (mental and physical),2 and age (over 40) 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. 2020004156 2 1. On September 11, 2017, and continuing through the present, a coworker (CW1) threatened to report Complainant’s performance if she did not resign; 2. On November 3, 2017, the Deputy Director of the Midwest District (Complainant’s immediate supervisor) did not assist Complainant with her subordinate and asked Complainant, “Why [Complainant] could not get along with [her] staff,” and did not give Complainant an opportunity to address complaints, falsely accused Complainant of retaliation, and then falsely stated that Complainant was a poor communicator; 3. On November 21, 2017, the Deputy Director and District Director changed the lock on Complainant’s office door; 4. On December 8, 2017, the Deputy Director sent an email about hiring a new employee without Complainant’s involvement or knowledge; 5. On December 13, 2017, the Deputy Director denied Complainant a secure wireless system; 6. On December 28, 2017, Complainant’s call to her Central Office Director was not returned, someone called the District Office to report that Complainant had not performed her duties, the District Director yelled at Complainant and called her unprofessional; 7. On January 22, 2018, the Deputy Director mocked Complainant and told Complainant that she did not have to call him because he already had her information, when he had previously told her to call him; 8. On September 11, 2017, and continuing through the present, Complainant has been denied training, to include “CPT”, “PE”, and “EMDR” training;3 and 9. On December 5, 2017, Complainant received a written counseling for not following orders from the Deputy Director. Complainant subsequently amended her complaint to add additional allegations of discrimination based on race, sex, color, disability, and age when: 10. Beginning on November 3, 2017, and continuing through the present, Complainant sought assistance from the Deputy Director in dealing with a difficult new employee, 2 Examples of Complainant’s disabilities include the following: posttraumatic stress disorder; depression, anxiety; sciatica; scoliosis; chronic obstructive pulmonary disease; acid reflux; and irritable bowel syndrome. Report of Investigation (ROI) at 0069. 3 Complainant did not define these three acronyms. 2020004156 3 but the Deputy Director provided no support and ridiculed Complainant for not getting along with the staff member and accused Complainant of micromanaging her staff; 11. On December 15, 2017, the Area Regional Manager rejected Complainant’s remediation plan, and informed Complainant that she was not provided an extension; 12. On December 28, 2017, another coworker (CW2) reported that a patient complained about Complainant, and then the District Director was hostile while he ridiculed and yelled at Complainant while telling her she had been unprofessional, and then directed Complainant not to have contact with Complainant’s patient, preventing her the opportunity to rectify the situation; 13. On January 22, 2018, the Deputy Director denied that previously on January 16, 2018, he had asked Complainant to call him; and 14. On April 2, 2018, the Deputy Director issued Complainant a written counseling letter regarding her responsibilities as the Quad City Vet Center Director. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. On May 26, 2020, the Agency issued its FAD pursuant to 29 C.F.R. § 1614.110(b), wherein the Agency found that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In issuing the decision, the Agency initially considered claims 8, 9, and 14, under the legal standard for disparate treatment. Having reviewed the record, the Agency determined that Complainant’s chain of command had legitimate, nondiscriminatory reasons for taking the alleged actions, namely that her performance and/or conduct fell below expectations to such an extent to necessitate remediation through written counseling. Though Complainant disputed the Agency’s articulated explanation and maintained that her performance was adversely affected by staff shortages, lack of training, and her health issues, the Agency ultimately that these reasons were insufficient to demonstrate pretext. As for the remaining 11 claims, the Agency adjudicated these claims under the legal standard for harassment and concluded that the alleged incidents were insufficiently severe or pervasive to constitute a hostile work environment. This appeal followed. CONTENTIONS ON APPEAL Complainant offers no contentions on appeal. The Agency opposes Complainant’s appeal and requests that the Commission affirm its FAD. 2020004156 4 STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Disparate Treatment: Claims 5, 8, 9, 11, 14 For Complainant to prevail on her allegations of disparate treatment, she must satisfy the three- part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions. We first address claims 5, 9, and 11. With regard to claim 5, the Deputy Director explained that he instructed Complainant to install wireless internet and cable at the Quad Cities Vet Center in order to support veterans’ services; however, every time he visited the facility, Complainant “made a million excuses as to why she was not able to get it done.” ROI at 0060. The Deputy Director maintained that he ultimately issued Complainant a written counseling letter in December 2017 (claim 9), because Complainant failed to follow his directive to install wireless internet and cable at the facility and did not timely provide a remediation plan to address the deficiency. Id. at 0205. The Deputy Director asserted that the task of installing wireless internet and cable was ultimately completed while Complainant was on leave. Id. at 0060. The Area Regional Manager added that she worked with Complainant to formulate a remediation plan to address the Deputy Director’s concerns (claim 11). Id. at 0107. 2020004156 5 The Area Regional Manager emphasized, however, that she never rejected Complainant’s remediation plan, and simply returned it for correction, as Complainant “did not follow remediation instructions.” Id. For claim 8, concerning the alleged denial of Complainant’s training requests, the Deputy Director maintained that he did not recall Complainant ever requesting training. ROI at 0128. However, he emphasized that had Complainant requested training, he would have denied Complainant’s request because Complainant was not up to date with her work and had just received an unsatisfactory rating on her performance review. Id. Regarding claim 14, which concerns the written counseling letter that the Deputy Director issued to Complainant in April 2018, our review of the letter reflects that the Deputy Director counseled Complainant for mismanaging the Quad City Vet Center by failing to properly maintain clinical records of patients. ROI at 0206-7. The Deputy Director’s letter also emphasized that as of the date of the letter, Complainant had not submitted a remediation plan in accordance with the District Officer’s guidelines and format. Id. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext for claims 5 and 9, Complainant initially maintained that the Deputy Director should not have issued her a counseling letter in December 2017, for failure to obtain cable and wireless internet for the facility, because she had told the Deputy Director that personnel at the Office of Information Technology (OIT) did not permit the installation of wireless internet at the facility due to potential security. ROI at 0080. However, Complainant later clarified that she was unable to obtain wireless internet and cable for the facility because of staff shortages, large caseloads, and inability to concentrate and focus due to health issues. Id. at 0086. For claim 11, Complainant stated that she discussed the remediation plan with the Area Regional Manager and maintained that the information that she gave to the Area Regional Manager “had been captured, but not in the traditional format.” Id. at 0064. Complainant further asserted that the Area Regional Manager made a sexist remark “to remind [Complainant] to be docile and not rock the boat.” Id. at 0089. 2020004156 6 With regard to claim 8, Complainant maintained that she had requested training for the past three years to various managers. ROI at 0085-86. Complainant added that when the Deputy Director became her supervisor in 2017, she raised the matter with him, and he responded flippantly with, “It’s up to you.” Id. Complainant asserted that she felt that the Deputy Director did not really want her to attend training. Id. For claim 14, Complainant disputed the Deputy Director’s articulated reasons for issuing the counseling letter in April 2018. In this regard, while Complainant acknowledged that she fell behind on her work, she maintained that her performance was adversely affected by staff shortages and insubordination and disrespect towards her from her subordinates. ROI at 0092-93. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are simply unpersuaded by Complainant’s arguments of pretext. While we are mindful that Complainant has repeatedly maintained that the Deputy Director should not have issued her a counseling letter in December 2017, in light of OIT’s decision, we find that the probative evidence fails to corroborate Complainant’s assertion that OIT prohibited the installation of wireless internet and cable at the facility (claim 5 and 9). By Complainant’s own admission, she was unable to comply with the Deputy Director’s directive because of alleged staff shortages, large caseloads, and her health issues. ROI at 0086. Having reviewed the record, we find no evidence that the Deputy Director acted with discriminatory animus in instructing Complainant to install wireless internet and cable at the facility and taking remedial action against Complainant in December 2017, when Complainant failed to do so. We also considered Complainant’s offer of pretext regarding the Area Regional Manager’s actions regarding the remediation plan; however, we find her explanation to be unclear and insufficient to demonstrate pretext (claim 11). As for the denial of Complainant’s requests for training (claim 8), we find Complainant’s offer of pretext to be wholly speculative and based solely on her perception of the Deputy Director’s response. Having reviewed the available record, we find no persuasive evidence that Complainant requested the alleged training courses. Finally, with regard to the April 2018 counseling letter raised in claim 14, we recognize that Complainant attributed her performance deficiencies to staff shortages and insubordination from her staff. However, we find that the probative evidence fails to persuasively show that the Deputy Director acted with discriminatory animus in counseling Complainant in an attempt to address Complainant’s deficiencies. 2020004156 7 Based on the foregoing, we conclude that Complainant cannot prevail on her claims of disparate treatment. Hostile Work Environment Claim As an initial matter, we find that a finding of harassment is precluded on claims 5, 8, 9, 11, and 14, due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). We turn now to the remaining nine claims. To establish a claim of harassment, Complainant must 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 class; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). We begin with claim 3, concerning Complainant’s allegation that management changed her office door lock. While our review of the record does in fact show that management changed the lock to Complainant’s office, we find that management has articulated an explanation for taking the alleged action. Specifically, the record reflects that management changed the lock because they needed to obtain materials from Complainant’s locked office, and Complainant was out on leave under the Family and Medical Leave Act (FMLA). ROI at 0059. Having considered the record, we conclude that the probative evidence fails to persuasively show that the underlying incident in claim 3 was taken because of Complainant’s race, color, sex, age, and disability. As for claims 1, 2, 4, 6, 7, 10, 12, and 13, even if we assume arguendo that the alleged incidents occurred in the manner described by Complainant, we still no discrimination, as the underlying events appear to be related to either Complainant’s conduct and/or duties. To the extent that Complainant asserts that her chain of command and/or coworkers acted unprofessionally towards her, we note that antidiscrimination laws are not civility codes. 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). We find that Complainant has not shown that the alleged conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant cannot prevail on her hostile work environment claim. 2020004156 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 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. 2020004156 9 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 November 16, 2021 Date