Bell G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Oct 31, 2019

0120182750 (E.E.O.C. Oct. 31, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bell G.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.

Appeal No. 0120182750

Agency No. 200I-0319-2017102517

DECISION

On August 27, 2018, 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
July 23, 2018, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Field Examiner,
1801, GS-11, at the Agency’s Columbia VA Regional Benefit Office facility in Columbia, South
Carolina.

On July 21, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to
a hostile work environment/harassment and discrimination on the bases of race (African-
American), sex (female), and reprisal for prior protected EEO activity when:

1. On March 9, 2017, Complainant’s first-level supervisor (S1), Supervisory Field
Examiner, placed Complainant on a Performance Improvement Plan (PIP) for 120
days, i.e., from March 9, 2017 to July 9, 017.

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.
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2. On March 9, 2017, during a meeting to discuss the PIP and emphasize the
importance of communicating effectively with management, S1 told Complainant,
“I thought we had a bond. When I came to your house, not last year, but the year
before last, we talked for like an hour and a half. I thought we [had] made a
connection,” which Complainant regarded as an “advance.”

3. On April 20, 2017, Complainant’s third-level supervisor (S3), Fiduciary Hub
Manager, issued Complainant a 14-day suspension to be served from May 1, 2017
to May 14, 2017.

4. On April 28, 2017, Complainant was “forced” to resign from her position due to
the foregoing incidents of alleged harassment.

5. On May 5, 2017, the Agency failed to include Complainant’s lump sum annual
leave payment in her final paycheck and, on May 20, 2017, when Complainant
finally received such payment, it was subject to tax at a rate of 25%.

The Agency accepted the complaint and conducted an investigation, which revealed the
following pertinent facts:

On March 9, 2017, S1 placed Complainant on a PIP for 120 days. Complainant attested that she
was placed on the PIP because her production had fallen, due to several months of blatant efforts
to negatively impact her performance, including threatening her with a PIP, reassigning misuse
cases she was working on and denying her investigative time for the cases, and removing her
from her compressed work schedule. Complainant indicated that the PIP was unacceptable
because management was aware that her territory was unmanageable and her requests for help
were always denied.

Complainant attested that S1 made it clear during the March 9, 2017 meeting when she placed
Complainant on the PIP that she had an ongoing issue with her, dating back to 2015. As noted
above, Complainant alleged that S1 told her, “I thought we had a bond. When I came to your
house, not last year, but the year before last, we talked for like an hour and a half. I thought we
[had] made a connection.” Complainant believed S1 sought a relationship with Complainant and
this was not reciprocated.

Complainant indicated that she felt alienated by her co-workers, as S1 constantly held
Complainant out as the worst performing Field Examiner on the team. Complainant informed
several members of management that she felled harassed and discriminated against because S1
was attempting to have a personal relationship with her and she did not want it.

In June 2015, S1 came to Complainant’s house to conduct a PII inspection. Complainant attested
that, after she had completed the inspection, S1 engaged Complainant in a very uncomfortable
conversation of a personal nature, asking questions that had nothing to do with work, for
approximately 1.5 hours.
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Complainant attested that, following S1’s statement during the March 9, 2017 meeting about
their having a bond, she told S1 that had no bond and she was uncomfortable about her bringing
it up.

S1 attested that Complainant was responsible for meeting her performance standards at fully
successful or better in all four critical elements of customer service, accuracy/quality, timeliness,
and production and one non-critical element of cooperation and organizational support. She
attested that Complainant was made aware of her concerns regarding her production 90 days
prior to being placed on a PIP. S1 attested that Complainant failed to meet her daily production
goal in October 2015, went out on extended leave in November, and failed to meet her goal in
January 2016. S1 explained that Complainant was performning at an unacceptable journey level,
noting her goal was 15 to 20 cases per month and Complainant completed 7 cases in October
2015 and 6 in January 2016. S1 attested that she placed 4 other employees on PIP for failure to
meet a critical element in the last two years.

Regarding the alleged statement about having a bond, S1 attested that Complainant’s allegation
was not her exact words. S1 explained that, during the March 9, 2017 meeting, they discussed
the importance of Complainant’s communicating effectively with S1 and management.

S1 explained that, during her visit to Complainant’s home, Complainant stated that she was a
single parent and their daughters were about the same age; they shared stories about their
daughters; and, because they had the common experience of being a single parent in common, S1
thought it was a great way to improve their communication. S1 indicated the accusation of her
having made an “advance” was false.

Another supervisor (S2) assumed responsibility for the PIP after the claim was filed. He
coordinated the meeting with the union to review the work Complainant was to complete in
order to improve her production, which was below the monthly and cumulatively levels for her
position. He explained that Complainant was not meeting the critical element of her performance
standard for production and it was necessary to place her on a PIP because veterans and their
widows were not receiving service in Complainant’s assigned area of responsibility and her work
was being distributed to surrounding peers to provide overdue services. He attested that several
employees were placed on PIPs for failing to meet production goals.

S3 also attested that Complainant was placed on a PIP because she was failing critical
performance elements.

On April 20, 2017, S3 issued Complainant a 14-day suspension for failure to follow instructions,
to be served May 1 through 14, 2017. The notice provides one specification which indicates
that, on October 12, 2016, an email was sent for Complainant to resolve six aged quality
corrections by the end of the month and an additional case was added in a follow-up email, dated
December 7, 2016.

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The notice provides Complainant was given opportunities to review and make corrections and
tutorials and step-by-step guides were provided for Complainant to complete the task on January
3, 2017, after there had already been missed deadlines causing additional delays. The notice also
provided that the cases had yet to be resolved and Complainant, therefore, had failed to follow
instructions given to her by her immediate supervisor. The notice indicates Complainant’s
response and disciplinary history, including an admonishment issued on December 21, 2016 for
failure to follow instructions.

Complainant attested that the assertions in the 14-day suspension were not correct and she
provided screen shots to show that she got an error message when she attempted to make
corrections.

On April 28, 2017, Complainant sent an email to management providing her formal resignation.
In her email, Complainant generally expressed her distrust for management, alleged harassment
and retaliation, and characterized the work environment as unfair to her. She alleged she had
been subjected disparate treatment, including unrealistic and insurmountable expectations.

With respect to her final paycheck, Complainant attested that, on May 5, 2017, she received what
she believed was going to be her final paycheck with annual leave included, as the payroll
department had explained to her. However, she did not receive the annual leave payment until
May 20, 2017. She alleged that because the annual leave was not included in her final paycheck,
it was taxed at 25%. She further alleged that S1 was responsible for signing her timecard and this
occurred as a result of S1’s dissatisfaction that Complainant did not reciprocate her advances.

A Financial Accounts Technician (FAT) attested that Complainant was separated on April 28,
2017, the day before the end of a pay period, and all time entered on her timecard was paid on
May 5, 2017. The FAT also provided that HR did not process Complainant’s separation until
May 4, 2017 and the office responsible for payroll, Defense Finance and Accounting Services
(DFAS), does not process the lump sum payments until the employee’s final process date. FAT
also attested that Complainant’s annual leave lump sum payment was not withheld and the delay
was in accordance with regulations.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed. In response, the Agency asserts that its final decision should be
affirmed because it is well-reasoned and factually and legally correct.2

2 We acknowledge the Agency’s argument that the appeal is untimely, but Complainant’s time to
submit an appeal ran until Monday, August 27, 2018, the date of her appeal.
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ANALYSIS AND FINDINGS

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”).

Harassment Claims

Complainant has alleged the Agency subjected her to harassment, both sexual and non-sexual,
noting several alleged instances. In considering whether the alleged actions, whether individually
or collectively, constitute harassment, the Commission notes that, in Harris v. Forklift Systems,
the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an
alteration of the conditions of the complainant's employment See EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a
claim of harassment a complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily protected class; (4) the
harassment had the purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis
for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by
the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.”

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The Court noted that such conduct “must be both objectively and subjectively offensive, [such]
that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that
the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Complainant’s harassment allegations include instances that can generally be described as
relating to managerial decisions, such as whether she should be placed on a PIP, the
appropriateness of her suspension as discipline, and the processing of payroll. Without evidence
of an unlawful motive, we have found that similar disputes do not amount to unlawful
harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014)
(The record established that the issues between the complainant and the supervisor were because
of personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment).

Additionally, with respect to the conversation wherein Complainant alleged S1 made sexually
harassing comments, we find this also is insufficiently severe or pervasive to have altered the
conditions of Complainant’s employment. See Phillips v. Dep’t of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked”
the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the
time the complainant entered into a sign in log, were found to be insufficient to state a
harassment claim). Although Complainant asserts that the Agency acted discriminately, there is
insufficient evidence to support the allegation that Complainant’s race, sex, or prior EEO activity
played any role in the incidents at issue. Thus, Complainant’s allegations, even if true, are
insufficient to support a claim of discriminatory harassment of a sexual or non-sexual nature.

Disparate Treatment Claims

Complainant has alleged that the Agency treated her disparately in placing her on a PIP, issuing
her a 14-day suspension, and delaying her lump sum annual leave payment. A claim of disparate
treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S.
248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).
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Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that Complainant was placed on a PIP because her production
rate between October 2016 and January 2017 was below the requisite measure for “fully
successful” performance; she was issued a 14-day suspension for failure to follow instructions,
as discussed above; and the payment of her lump sum was subject to the timing of her
resignation and the processing of her separation, in accordance with regulations. Although
Complainant has alleged discrimination, she has not established by a preponderance of the
evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with
respect to these claims.

Constructive Discharge

In alleging that the Agency forced her to resign, Complainant is alleging that she was
constructively discharged. A discriminatory constructive discharge occurs when an agency,
motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant,
or intolerable that a reasonable person in the complainant's position would feel compelled to
resign. Byron E. v. U.S. Postal Serv., EEOC Appeal No. 0120143037 (Sept. 1, 2016). The
Commission has adopted a three-pronged test for establishing a constructive discharge. A
complainant must show that: (1) a reasonable person in his position would have found the
working conditions intolerable; (2) conduct which constituted prohibited discriminatory
treatment created the intolerable working conditions; and (3) the complainant's involuntary
resignation result from the intolerable working conditions. Ileana R. v. Dep’t. of Homeland Sec.,
EEOC Appeal No. 0120120394 (Nov. 24. 2015). However, even where actions which precipitate
an individual's retirement are discriminatory or retaliatory, this does not automatically establish
that the subsequent resignation or retirement constituted constructive discharge. Olsen v. Dep't of
Def., EEOC Request No. 05A10104 (Mar. 22, 2001).

Complainant essentially asserts that she resigned because of the alleged incidents of harassment
and discrimination detailed in the complaint. As noted above, we find that the Agency had
legitimate, nondiscriminatory reasons for its actions and Complainant has not established that a
reasonable person in her position would have found these working conditions intolerable.
Furthermore, Complainant has failed to show by a preponderance of the evidence that she was
discriminated against on the basis of race, sex, or prior EEO activity, with respect to the working
conditions at issue. She has not met her burden to establish that the Agency was motivated by a
discriminatory animus towards creating such working conditions as would be so difficult,
unpleasant, or intolerable that a reasonable person in her position would feel compelled to retire
earlier than they had planned.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final 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. 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.
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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

October 31, 2019
Date