[Redacted], Trena M., 1 Complainant,v.Robert L. Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2020004541 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trena M.,1 Complainant, v. Robert L. Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2020004541 Hearing No. 451-2019-00137X Agency No. 20DR-0040-2018104931 DECISION On August 11, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a decision by an EEOC Administrative Judge (AJ) concerning her equal employment opportunity (EEO) complaint where she alleged 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.2 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 Complainant filed her appeal prematurely before the expiration of the time allowed the Agency to issue a final order. However, because the Agency appears to have never issued a final order, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 2020004541 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Records Management Officer (Program Specialist), GS-13, for the Agency’s National Cemetery Administration in Washington, D.C., although she worked remotely from Texas. On September 18, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a discriminatory hostile work environment because of her race (African-American), sex (female), and reprisal for prior EEO activity when: 1. During February 2018, Complainant’s supervisor gave the selecting official a negative reference for Complainant for a position for which Complainant applied (GS-0669-13, vacancy announcement 999283). 2. On three occasions between April 30, 2018 to June 28, 2018, Complainant’s supervisor sent Complainant emails, labeling her rude and disrespectful. 3. On May 7, 2018, Complainant’s supervisor issued Complainant a letter of counseling, titled “Letter of Expectations.” 4. On June 29, 2018, Complainant’s supervisor proposed a reprimand for “Disrespectful Communications with your Supervisor” and “Failure to Follow Instructions.” The reprimand was upheld and issued on July 18, 2018. 5. On June 29, 2018, Complainant’s supervisor emailed Complainant, accusing her of refusing to meet with him. 6. On July 13, 2018, Complainant’s supervisor sent Complainant an assignment email with restricted permissions, which limited her ability to copy or forward the email. 7. On September 4, 2018, her supervisor sent Complainant an instant message referring to Complainant and another African-American as “shadow.” 8. On September 14, 2018, the supervisor took no action when Complainant informed him an employee referred to her as a “control freak.” 9. Beginning in May 2018 to the present, Complainant’s supervisor increased her assignments that required her to travel more. 10. On or about August 2018, Complainant’s supervisor violated her confidentiality with contact with Complainant’s ex-husband. 11. On August 10, 2018, she was denied travel to participate in mediation. 12. On October 23, 2018, Complainant’s supervisor issued her a fully satisfactory rating. 13. On an unspecified date, Complainant’s supervisor failed to provide her a Position Description which accurately reflected her duties in order to update her grade to a GS-14. 14. On December 17, 2018, the Acting Director of the Information Management and Business Support Service informed Complainant her position could not be upgraded and that if it were, she would have to compete for it. 15. On December 17, 2018, Complainant’s supervisor provided Human Resources with a list of her duties that did not adequately or correctly describe Complainant’s duties and responsibilities. 2020004541 3 16. On January 8, 2019, Complainant was informed that her position had been realigned. In conducting its investigation of the complaint, the Agency considered all the allegations as part of Complainant’s hostile work environment claim. The Agency also accepted the incidents listed as 4, 11, 12, 13, 14, and 16 as discrete claims of disparate treatment. The pertinent record shows that Complainant worked as a Programs Specialist and functioned as the Agency’s Records Management Officer. Her position duties stated that she was responsible for administering a nationwide records management system within the “PDA.” Her immediate supervisor, until November 23, 2018, was the Director, Information Management and Business Support Service (Caucasian male) (“S1”). Complainant averred that he had been named as a discriminating official in a complaint she filed five years earlier. After November 23, 2018, Complainant reported to the Acting Director, Information Management and Business Support Service, who also served as her immediate supervisor (Caucasian male) (“S2”). Her second level supervisor was the Deputy Under Secretary for Management, VA Central Office (Caucasian male) (“S3”). In brief, the evidence developed during the investigation showed the following: In February 2018, Complainant was informed that she was not selected for a position due to a negative reference provided by her management. The person whom Complainant suspected as the person who issued the negative reference was S1, whom she had named as a responsible management official in a prior complaint five years earlier. It is undisputed that an unfavorable reference was provided to the selecting official for the position for which she applied. S1 averred that he did not recommend Complainant because she was “not taking ownership of the NCA Record Management Program.” During the period of April 30, 2018, June 25, 2018 and June 28, 2018, S1 sent Complainant emails, labeling her behavior as “rude and disrespectful.” On or around May 8, 2018, S1 gave Complainant a Letter of Expectations. He restricted the permission on the email. On the previous day, Complainant had contacted upper management, which she said was to introduce herself and she also shared some concerns. On June 29, 2018, S1 emailed a Proposed Reprimand with the charges “Disrespectful Communications with Supervisor” and “Failure to Follow Instructions.” S1 stated that Complainant refused to meet with him. On July 13, 2018, S1 sent her an email regarding her assignments, with restricted permissions, that limited her ability to copy or forward the instructions to others. 2020004541 4 On July 18, 2018, the Deputy Under Secretary for Management (S3) upheld S1’s June 29, 2018 Reprimand, which was formally issued to Complainant. On August 29, 2018, the Agency’s Executive Director for Human Capital Management sent a memorandum titled, “Shadow Your Boss Initiative” to all NCA Central Office Team members, announcing the initiative for the NCA Central office employees. Thinking that Complainant sent the email, in response, S1 sent Complainant an instant message, stating “shadow your boss is not PC.” Report of Investigation (ROI) at 97. S1 testified the program should refer to “mentoring” not shadowing. ROI at 63. Complainant was offended by the remark and asserted it was discriminatory and was aimed at her and another African-American. S1 averred that he immediately sent another message apologizing for having sent the message to the wrong recipient. Complainant complained to S1 that she learned from a co-worker that another employee referred to Complainant as a “Control Freak,” but Complainant says she heard nothing back. S1 attested that he contacted the employee’s supervisor to discuss the matter. ROI at 163-164. Regarding Complainant’s claim that her supervisor breached her privacy and the terms of a prior settlement agreement, S1 attested that he never contacted Complainant’s ex-husband. The record shows that Complainant agreed to mediation. Complainant believed that she was denied travel approval to participate in mediation. The travel request had been denied, but not by S1, who proposed that the mediation be rescheduled. It was undisputed that Complainant declined to reschedule the mediation. S1 rated Complainant as Fully Successful, which was the same rating she received the previous year. Complainant contends her performance had improved and she should have been rated higher. Complainant averred that her position description should be updated and that she should have been graded as a GS-14 and not a GS-13. S2 consulted with Human Resources and forwarded the proposed revised PD, but the revised position description came back as a GS-13. S2 testified that on January 20, 2019, the personnel in the Information and Business Support Services were realigned under the Business Transformation and Requirement Services. S2 testified that he informed Complainant that her position would be realigned consistent with this reorganization. There was no change in her duty station, pay or Position Description. Only her supervisor changed. Complainant refused to sign the Management Realignment memorandum. Based on the advice he received from HR, S2 informed Complainant that he would annotate the memo that “employee refused to sign” and he returned the memo to HR. ROI at 172. 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 (AJ). Complainant timely requested a hearing. The Agency moved for summary judgment. Complainant objected. 2020004541 5 Noting that both parties had waived discovery, the AJ found that the case was adequately developed. The AJ noted that each party waived discovery. After considering Complainant’s opposition, the AJ issued a decision by summary judgment in favor of the Agency. In so ruling, the AJ assumed that all of the responsible management officials had knowledge of Complainant’s race, sex and prior EEO activity, but the evidence showed the incidents did not happen as alleged or were justified by non-discriminatory considerations. Complainant filed her appeal the day after the AJ issued her ruling. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Neither party presented a brief on appeal. ANALYSIS AND FINDINGS Section 717 of Title VII states that federal agencies must make all of their personnel actions free of discrimination on the basis of race or sex. 42 U.S.C. § 2000e-16. Reprisal is also unlawful. See 29 C.F.R. § 1614.101(b) and 1614.103(a). EEOC regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. Id. On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that there are material facts at issue. However, 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, while Complainant has, in a very general sense, asserted that facts are in dispute, she has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute concerning facts that are material to the adjudication of her claim. The evidence developed during the investigation fully supports the AJ’s conclusion that the record was devoid of any evidence that would connected the disputed actions to Complainant’s race, sex or prior EEO activity. Responsible management officials articulated legitimate reasons for its actions. S1 regarded Complainant’s work performance as deficient and had counseled her regarding his perceptions of the deficient performance. He issued a proposed reprimand based on his assessment that Complainant had failed to follow his instructions and had been rude. He issued the rating that he thought her performance warranted. 2020004541 6 Human Resources found the requested change in her position description and grade were unwarranted. In sum, the evidence showed the incidents raised by Complainant either did not happen as alleged or were justified by non-discriminatory considerations. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor on the race, sex or retaliation claims. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment was appropriate. The AJ’s decision, which became the Agency’s final decision, is AFFIRMED. 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). 2020004541 7 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. 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 January 5, 2021 Date