Willy B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

2019001470 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willy B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001470 Hearing No. 490-2017-00071X Agency No. 200I06142016101006 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 13, 2018 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Peer Support Apprentice, GS-6, at the Agency’s Memphis VA Medical Center in Memphis, Tennessee. On February 25, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to a hostile work environment based on race (Black), age (YOB: 1954), disability, and in reprisal for prior protected EEO activity when: 1. on July 8, 2015, Complainant received a proposed 14-day suspension; 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. 2019001470 2 2. on August 28, 2015, the proposed 14-day suspension was mitigated to a 10-day suspension; 3. in late September 2015, a supervisor (“CW1”)2 yelled at Complainant and told her she was out of her scope of practice; 4. since September 2015 until present, Complainant was denied promotion to GS- 7/8/9 level; 5. since September 2015 until present, Complainant did not receive her performance appraisal; 6. on November 24, 2015, CW1 referred to Complainant as “Honey BooBoo,” and told Complainant that she was “dumber than dirt;” 7. in December 2015, CW1 contacted the police and accused Complainant of threatening to take her hair and kick her behind; 8. since December 3, 2015, the Psychologist3 and Chief of Mental Health have blocked Complainant’s access to her healthcare providers by requiring that she report to security before her appointments; 9. on a date unspecified, CW1 followed Complainant in the hallway and berated her in a loud voice; 10. from December 3, 2015 to May 3, 2016, Complainant was placed on Authorized Absence; 11. in January 2016, during the fact-finding and until Complainant’s transfer, the Psychologist came to Complainant’s office daily for two weeks to harass Complainant; 12. from February 14, 2016 to February 16, 2016, Complainant’s medical records were accessed without her permission; 13. on March 8, 2016, Complainant received a proposed Removal; 14. on April 18, 2016, the Removal was mitigated to a 14-day suspension; 2 While referred to as a supervisor, the record instead reflects that CW1 was never a supervisor and was Complainant’s co-worker. 3 The Psychologist testified that she was Complainant’s supervisor approximately from the fall of 2014 until January 2015. 2019001470 3 15. on April 18, 2016, Complainant was notified that effective May 5, 2016, she was to return to duty, and was assigned to the same area where she had been harassed; 16. since April 2016, Complainant received no response to her request for a reasonable accommodation; 17. on September 9, 2016, a co-worker (“CW2”) followed Complainant to the canteen and made comments about why Complainant was in the canteen; 18. on September 22, 2016, the Vocational Rehabilitation Specialist failed to notify Complainant that the CWT worker meeting was cancelled and rescheduled; 19. ongoing, the Chief of Mental Health failed to address the Vocational Rehabilitation Specialist and CW2’s continued efforts to isolate Complainant; 20. CW2 continues to send derogatory emails about Complainant and not include Complainant on communication emails; 21. on January 5, 2017, the Chief Nurse harassed, confronted, and embarrassed Complainant about being 15 minutes late, in the presence of the Administrative Officer for Mental Health and the Psychologist; and 22. as of January 5, 2017, Complainant has not received her promotion to a GS-9. After its investigation of the formal complaint,4 the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Commission's 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. 4 We note that the Agency accepted all claims but dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a), for untimely EEO Counselor contact. However, the Agency determined that claim 2 was related to Complainant’s allegation of discriminatory harassment and included claim 2 for consideration in the analysis of the harassment claim. 2019001470 4 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 2019001470 5 In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 14, 2020 Date