Bell G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20190120182750 (E.E.O.C. Oct. 31, 2019) Copy Citation 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. 0120182750 2 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. 0120182750 3 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. 0120182750 4 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. 0120182750 5 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.” 0120182750 6 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). 0120182750 7 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. 0120182750 8 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. 0120182750 9 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 Copy with citationCopy as parenthetical citation