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

Equal Employment Opportunity Commission

Jul 14, 2021

Appeal No. 2020001356 (E.E.O.C. Jul. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffanie S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001356 Hearing No. 430-2016-00344X Agency No. 2004-0652-2015103966 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 October 28, 2019 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Chief of the Physical Therapy Department within the Physical Medicine and Rehabilitation Service, GS-13, at the Agency’s VA Medical Center in Richmond, Virginia. On August 3, 2015 (and later amended), Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discrimination based on her race (African-American), sex (female), disability (Physical), and in reprisal for prior protected EEO activity 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. 2020001356 2 1. Since October 2013, the Director of Physical Medicine and Rehabilitation Services (RMO1) and the Chief of Physical Medicine and Rehabilitation Services (RMO2) met with four members of Complainant’s staff to ask for their input regarding staffing issues in physical therapy; 2. From October 7, 2013 to present, the two managers failed to include Complainant in the management and operations of crucial aspects of the Medical Center Operations, isolated her from ongoing day to day involvement in the Medical Center Operations, prevented her access to vital company data, and consequentially hindered her ability to perform her job; 3. From October 7, 2013 to present, Complainant learned that RMO1 and RMO2 gave preferential treatment to two other colleagues (the Occupational Therapist Supervisor and the Kinesiotherapist Supervisor) to increase their staff, but not to increase Complainant’s staff; 4. From October 7, 2013 to present, Complainant learned that the two named management officials met with three other employees regarding applicants for positions for the Physical Therapy Department without her input; 5. On January 14, 2014, Complainant was removed from the Resource Management Committee by RMO1; 6. On April 13, 2014 and April 30, 2015, the HR Specialist informed Complainant that RMO1 and RMO2 instructed her to remove Complainant from the chain of command regarding promotional requests: 7. On June 16, 2014, RMO1 removed Complainant from attending meetings regarding Physical Therapy Department issues and Complainant received a harassing email from RMO2 regarding her request for guidance. 8. On various dates, Complainant’s requests for equipment, computers, phones, additional staffing, additional workspace for staff, and treatment mats were ignored; 9. On various dates, RMO1 and RMO2 ignored Complainant’s staffing needs, while her white peers' staffing requirements were met above and beyond what they requested; 10. On May 19, 2015, Complainant was given verbal counseling because she did not cancel a client’s appointment and she did not answer the Kinesiotherapist Supervisor’s email regarding the cancellation; 11. On May 26, 2015, RMO1 and RMO2 denied Complainant’s request to attend the Physical Therapy National Conference; 12. On May 27, 2015, May 28, 2015, June 8, 2015 and June 16, 2015, RMO1 removed Complainant from a staff meeting regarding Physical Therapy Department issues; 13. On June 3 and 4, 2015, RMO2 humiliated Complainant when he allowed the HR Specialist to undermine Complainant’s ability to supervise her staff following a weekly meeting; 14. On June 8, 2015, Complainant was blamed for not following up on ordering treatment mats and accused of not doing her job by RMO2; 15. On June 8, 2015, RMO2 humiliated Complainant in front of her staff; 16. On October 29, 2015, Complainant received a reprimand for not following orders; 17. On October 29, 2015, RMO1 issued her a performance appraisal rating, “Fully Successful” with an annotation of “with Concerns;” and 2020001356 3 18. On October 26, 2015, Complainant learned her timecard was reviewed by a peer.2 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed.3 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination, reprisal, or a hostile work environment by the Agency as alleged. 2 The Agency dismissed claim (5) as a discrete claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency accepted the claim, however, as part of Complainant’s overall hostile work environment claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s decision in this regard. 3 On appeal, Complainant raises numerous arguments regarding her dissatisfaction with the actions of her former attorney prior to and at the hearing. To the extent that Complainant is claiming ineffective assistance of counsel, the Commission notes that when a complainant has voluntarily entrusted representation to an attorney, she may not avoid the consequences of her choice by arguing that the attorney did not perform the attorney's duties in a competent manner. See Kennedy v. U.S. Postal Serv., EEOC Request No. 05950157 (Aug. 10, 1995). The Commission further emphasizes that a complainant shall at all times be responsible for proceeding with the complaint whether or not she has designated a representative. 29 C.F.R. § 1614.605(e). 2020001356 4 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. 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). 2020001356 5 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 14, 2021 Date