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

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2020003810 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tona C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003810 Hearing No. 430-2018-00379X Agency No. 200H-0652-2017105157 DECISION On June 4, 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 7, 2020 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a Program Support Clerk, GS- 5, in Richmond, Virginia. On October 11, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African American), age (62), 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. 2020003810 2 1. On September 14 and 15, 2017 Complainant's named supervisor (“S1”) sent a named employee to check to see if Complainant had arrived at work; 2. On September 14, 2017, S1 instructed Complainant to enter thirty minutes of leave for arriving to work late;2 3. On February 2, 2017, a named Agency physician (“Doctor A”) moved Complainant from the file room to the Geriatrics division; 4. On an unidentified date, Complainant was not afforded the opportunity to be assigned to higher-graded duties or promotion to a higher grade; and 5. On April 16, 2018, Doctor A issued Complainant a written counseling letter for failing to attend a weekly administrative meeting on March 7, 2018. After an 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 19, 2019, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on May 6, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 2 We note that the record contains an inadvertent parenthetical reference to the numeral “3” instead of “30.” 2020003810 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. To establish a claim of discriminatory hostile environment 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her race, age or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, we will assume, without so finding, that the responsible management officials were aware of Complainant’s prior EEO complaint. However, the investigation disclosed the Agency's management witnesses proffered legitimate non-retaliatory reasons for the disputed actions as detailed below. The evidence developed during the investigation disclosed that, by her own admission, Complainant had arrived late to work on some occasions. Regarding claims 1 and 2, S1 indicated that because she was on her way to meetings, she asked a lead employee to see if Complainant was at work because of her past late arrivals. In addition, according to S1, because Complainant was late for work on September 14, 2017, as stated in claim 2, she instructed Complainant to record thirty minutes of leave to account for the time she missed. Regarding claim 3, Complainant alleges that the Agency improperly moved her from the file room to work in Geriatrics. However, the record does not indicate that Complainant was affirmatively placed in the mail room to work as the result of a settlement agreement or other formal mediation agreement as Complainant seems to allege. 2020003810 4 It does appear that Complainant participated in a mediation session which resulted in a reassignment from her position as a Support Clerk to the file room under the supervision of S1. The record, however, does not contain a settlement agreement or other written memorialization of Complainant being assigned to the file room. In addition, the record discloses that in early 2017, a new Chief of Health Administration Services (Chief) began working at the Agency. In reviewing the staffing chart related to her area of supervision, the Chief recognized that Complainant was not a permanent employee but was working in the file room. Following consultation with the Agency's Human Resources Department, and after learning that there was no settlement agreement formally assigning Complainant to the file room, Complainant was returned to her position of record as a support clerk under the supervision of Doctor A. In claim 4, Complainant does not identify a non-selection or other opportunity for which she applied and was not selected. In claim 5, Complainant acknowledges that she did not attend the weekly administrative meeting on March 7, 2018, which was the reason Doctor A issued the written counseling letter. In sum, the overwhelming weight of the evidence fully supports the AJ’s determination that the disputed actions were not, in any way, motivated by discriminatory or retaliatory animus. Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, age or prior EEO activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were unlawfully motivated. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency's final order adopting the AJ’s finding of no discrimination without a hearing is AFFIRMED for the reasons discussed above. 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. 2020003810 5 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. 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. 2020003810 6 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 28, 2021 Date