Bernardina N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 18, 2019

0120182334 (E.E.O.C. Apr. 18, 2019)

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

Bernardina N.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182334
Agency No. 200H05142017102695

DECISION

On June 4, 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
May 24, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly found that Complainant was not subjected to
discrimination and a hostile work environment on the bases of reprisal, sex, and disability when:

1. On April 13 and March 23, 2013, her requests for annual leave on June 1 and June 15,
2013, were denied.
2. On May 29, 2013, Agency Police investigated her workers’ compensation case after the
application had been approved.
3. On or about May 29, 2013, a Supervisory Human Resources (HR) Specialist encouraged
her to resign.

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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4. Beginning in May 2016, and continuing, the Police Chief systematically removed her duty
assignments.
5. On or around September 20, 2016, she became aware that the Agency forwarded time and
leave (T&L) documents to the Office of Workmen’s Compensation (OWCP) that contained
information regarding her son.
6. On March 3, 2017, the Police Chief stated to her coworker, a Security Assistant, “I don’t
give a f*** what happens to [Complainant] and [another employee] moving to HR.”
7. On March 6, 2017, the Police Chief moved her office.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Assistant,
GS-5 at the Agency’s facility in Bath, New York. On May 15, 2017, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of sex (female),
disability (back injury), and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 as set forth above. 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. 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 Agency noted that Complainant did not participate in the investigation of her complaint. They
stated, among other things, that the investigator contacted Complainant regarding her submission
of an affidavit in support of her complaint; and that she requested and was granted three extensions
to submit her affidavit. The Agency also stated that its Office of Resolution Management requested
that Complainant submit medical documentation. Complainant, however, did not submit an
affidavit or any medical documentation in support of her complaint by the time the investigation
closed. Complainant did, however, submit an affidavit after the investigation. Thus, according to
the Agency, Complainant provided no testimony or evidence to substantiate her claims.

The Agency also dismissed a claim that from December 2013 to the present, as a GS-5 Security
Assistant, Complainant had been performing the duties of a GS-6 Security Assistant; but that her
November 3, 2016, Performance Appraisal rating, in which she was rated “Excellent” failed to
reflect that she was doing GS-6 level work. This claim was dismissed on the grounds that
Complainant had previously raised the matter pursuant to the negotiated grievance process.
Regarding issues 1 – 7, the Agency, in pertinent part, found that Complainant had not established
that she was subjected to discrimination or harassment. Specifically, the Agency found the
following:

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Issue 1:

Management explained that the leave requests were denied because Complainant had a zero-leave
balance

Issue 2:

Complainant alleged that she was subjected to harassment when Agency police investigated her
workers’ compensation case after her application had been approved. The Employee
Relations/Labor Relations (ER/LR) Supervisor explained that the Police Chief, who was no longer
employed with the Agency, authorized an investigation after another employee reportedly
witnessed Complainant lifting heavy bags while she was in receipt of workers’ compensation and
under medical restrictions for lifting. Management added that the incident was documented on
video; and that, according to management’s witnesses, no further action was taken. Management
noted that the Agency was obligated to investigate allegations of fraud; and that the Police had
jurisdiction to investigate allegations of OWCP fraud.

Issue 3:

Complainant alleged that a Supervisory HR Specialist encouraged her to resign.

The official in question denied making such a statement.

Issue 4:

Complainant alleged that the Police Chief systematically removed her duty assignments.

Management explained that when HR Specialists became aware that Complainant was working
outside her position description, and that she was performing duties that were above her pay grade,
management immediately reassigned those higher-grade duties to an employee in a higher pay
grade.

Issue 5:

Complainant alleged that she learned that the Agency had forwarded time and leave (T&L)
documents allegedly containing information about her son to the OWCP.

Management explained that the information was properly forwarded to the OWCP because there
was investigative material in connection with the adjudication of Complainant’s OWCP claim;
and that the information consisted of timecards that contained none of her son’s personally
identifiable information.

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Issue 6:

Complainant alleged that the Police Chief made a statement to her coworker, a Security Assistant,
in which he used the “F” word while indicating that he did not care what happened to Complainant
and another employee who were moving to HR.

Management noted that the coworker stated, however, that she did not remember such an incident
and did not remember the Police Chief ever using the “F word.” The coworker also indicated that
Complainant held a grudge against the Police Chief because of a dispute regarding the assignment
of duties that resulted in a rewrite of both of Complainant’s position descriptions.

Issue 7:

Complainant alleged that the Police Chief moved her office. In her untimely affidavit, Complainant
indicated that she had a private office upstairs in building 44, and she was moved downstairs to
the PIV office in building 44. Complainant stated that she was told that the move was because she
had been hired to do PIV duties, and not the administration duties that she was performing.
According to Complainant, HR personnel, the Union, the Police Chief and “people in upper
management” all provided this justification to her. Finally, Complainant stated that:

[w]e were [sic] supposed to be moving to HR in March when I was moved to the PIV
office but we were never moved to HR. It was the beginning of March. I was never
told I was going to be moved to that specific location (downstairs in the PIV office)
because we were supposed to be working under HR when I moved out of my office,
but we didn’t end up going.

At the time of the investigation, the Police Chief had left the Agency and did not provide an
affidavit. No other management official who was questioned claimed to have any knowledge of
this matter. Moreover, the Agency failed to specifically address this issue in its FAD or on appeal.

CONTENTIONS ON APPEAL

Complainant did not submit a statement on appeal; therefore, we have no indication what her
specific concerns are with the Agency’s FAD. The Agency contends, among other things, that
because Complainant failed to file a brief in support of her appeal, she has made no argument in
support of the appeal; therefore, its FAD should be affirmed.

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
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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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

With respect to issues 1 – 5, we find that assuming, arguendo, Complainant established a prima
facie case of discrimination based on disability, sex, and reprisal, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Management explained that Complainant’s
leave requests were denied because she had a zero-leave balance; that she was investigated for
violating her OWCP medical restrictions on lifting; that information was properly forwarded to
the OWCP as investigative material in connection with the adjudication of Complainant’s OWCP
claim; the supervisory official denied asking Complainant to resign; and that her duty assignments
were removed because she was working outside her position description, and that she was
performing duties that were above her pay grade. We find no persuasive evidence of pretext here.

With respect to issue 7, we find that Complainant was unable to establish a prima facie case of
discrimination based on disability, sex, or reprisal. Complainant may establish a prima facie case
of discrimination by providing evidence that (1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) either that similarly situated individuals outside
her protected class were treated differently, or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at
802; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d
736, 743-44 (9th Cir.2004) (internal quotation marks omitted). According to Complainant, she
was going to be moved from her private upstairs office to move to HR. Complainant stated that
“we were supposed to be moving to HR in March when I was moved to the PIV office, but we
were never moved to HR.” Consequently, we find it questionable whether Complainant even
suffered an adverse action here. More importantly, we note that Complainant also indicated that
“we were supposed to be working under HR when I moved out of my office, but we didn’t end up
going.”
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There is no indication here that Complainant was treated any differently than male, non-disabled
employees who had never engaged in prior EEO activity.2 Accordingly, we find no discrimination
regarding issue 7.

Regarding Complainant’s hostile work environment claim with respect to issues 1 -5, and 7, we
find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile
work environment is precluded by our determination that Complainant failed to establish that
issues 1 -5, and 7 were motivated by discriminatory animus. See Oakley v. United States Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

With regard to issue 6, we find that Complainant did not establish that she was subjected to the
conduct alleged. Assuming, arguendo, that the record contained persuasive evidence that the Police
Chief made the comment at issue, we find no evidence that it would have been based on
Complainant’s sex, disability or previous EEO activity, nor do we find that this single incident
was severe or pervasive enough to rise to the level of unlawful harassment. The Commission notes
that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to
alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 81 (1998). We therefore find that Complainant’s allegations of discrimination are not
supported by the totality of the evidence.

CONCLUSION

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

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

2 Because the Agency failed to provide an affidavit from a person with knowledge of issue 7, or
otherwise address this matter, we considered Complainant’s untimely affidavit on regarding this
matter.
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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. 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

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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

April 18, 2019
Date