Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 28, 2015

0120133142 (E.E.O.C. Jan. 28, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120133142

Hearing No. 351-2012-00246X

Agency No. 2003-0671-2011100745

DECISION
On August 25, 2013, Complainant filed an appeal from the Agency’s August 21, 2013 final
order 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
The Agency hired Complainant as Secretary to the Environmental Management Chief, her
first-line supervisor (S1), at the Audie Murphy Medical Center in San Antonio, Texas. Her
probationary tenure lasted from June 20 until November 29, 2010, on which date she resigned
after being notified that she would be fired, effective December 1, 2010. She filed an EEO
complaint in which she alleged that S1 had subjected her to a hostile work environment
because of her race (White) between July and November 2010, and that S1’s actions had
culminated in her forced resignation. At the conclusion of the ensuing investigation, the
Agency provided Complainant with a copy of the investigative report (IR) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on July 19, 2013, and issued a decision on July
25, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS
Since Complainant was a probationary employee, she could be terminated at will so long as S1
did not harbor a discriminatory animus regarding her race when she made the decision to fire
her. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981);
Tortorelli v. Department of the Air Force, EEOC Request No. 05920285 (May 7, 1992).
Complainant claims, however, that she was constructively discharged by S1. To prevail on
such a claim, Complainant would have to prove, by a preponderance of the evidence, that S1
had harassed her to such an extent that a reasonable person in Complainant’s position would
have felt compelled to resign, and that in doing so, S1 was motivated by unlawful
considerations of Complainant’s race. Hulvey v. Department of Labor

, EEOC Appeal No.
0720070059 n.3 (February 7, 2008). With these principles in mind, we will now look at the
six incidents that comprise Complainant’s constructive discharge claim.
Incident (1) - On July 15, 22, and 29, 2010, August 5,10,19 and 26, 2010, September 2 and 9,
2010, October 7, 14, 21, and 28, 2010, and November 4 and 8, 2010, S1 belittled and
criticized Complainant in front of team members. Complainant averred that on these dates S1
had directed her to accompany her on the environmental care rounds, and that during those
rounds, S1 would holler at her to stay close and make gestures as if Complainant were, “a dog
on a leash,” and that she felt embarrassed and humiliated in front of her coworkers. When
asked by the investigator why she believed that S1 was treating her this way because of her
race, Complainant replied that S1 treated white people differently from black people, bringing
them food and accepting gifts from them. IR 196-98. S1 responded that these environmental
care rounds were held twice a week and were required in every VA hospital in order to ensure
that the facilities were inspection-ready and safe for patients. She further averred that as her
secretary, Complainant would have been taking and transcribing notes from the rounds and
would have needed to stay close. She denied that she ever belittled Complainant, noting that
she had had multiple conversations with Complainant about her job performance, IR 209-11.

Incident (2) - On August 9 and 31, 2010, and September 6 and 20, 2010, S1 yelled at
Complainant in front of coworkers. Complainant averred that S1 would yell at her about
sending documentation out without her approval, and that S1 had done so in the presence of the
timekeeper, a co-op student and the Assistant Chief of the Environmental Management
Services. IR 198-98. S1 responded that she never yelled at Complainant or anyone else. S1
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did state, however, that she was very direct with her staff, that she tried to be precise and clear
in her instructions to her subordinates and would have them repeat those instructions to ensure
that they were understood. She also averred that she was frustrated with Complainant’s
constant inappropriate behavior, that her relationship with Complainant was strained, and that
she shared her concerns about Complainant with the Assistant Chief. IR 211-13.

Incident (3) - On September 10 and 23, 2010, S1 sent the Complainant harassing type e-mails
reminding her of what duties she needed to complete, and had a coworker ensure the duties
were completed. S1 averred that she traveled often, and that she often made notes to
Complainant and her other subordinates about what each of them needed to do during her
absence, and that Complainant did not like it when S1 communicated with her in this manner.
IR 213-14. When asked why she believed that these emails were a form of harassment,
Complainant replied that it was because S1 had sent those emails to two other people in
addition to her. IR 198-99.

Incident (4) - On September 20, 2010, S1 accused Complainant of not scheduling and/or
reminding her of meetings and told her that she could not leave early. Complainant averred
that she had scheduled an appointment for S1, and that she had to change the appointment
because the individual who had requested it was not able to make it. She stated that S1 had
accused her of not letting her know about the change. IR 199. S1 replied that she had
repeatedly asked Complainant to keep her abreast of the appointments that she schedules and to
let her know of any changes, and that Complainant failed to do this on numerous occasions.
IR 214-16.

Incident (5) - In late October or early November 2010, S1 scolded Complainant for going into
her office to retrieve appraisal documents. Complainant averred that S1 had tasked her to
retrieve the appraisal packages of two subordinate supervisors, and in response, she retrieved
the documents from S1’s office because she knew they were there. She stated that when S1
realized that Complainant had gone into her office, she scolded her in front of the timekeeper.
IR 199-200. S1 responded that there was a lot of confidential information within her office,
and that she always closed the door whenever she left. She also testified that she had to have
Complainant’s key to her office changed because she would find Complainant rummaging
through paperwork or otherwise being in the office without authorization. IR 216-17.

Incident (6) - On November 6, 2010, S1 left Complainant no alternative other than constructive
resignation or termination. A memorandum from the Human Resources Chief to Complainant
dated November 16, 2010, stated that S1 had recommended that Complainant be terminated
due to unacceptable job performance and failure to follow supervisory instructions, and that
Complainant’s effective termination date would be December 1, 2010. IR 207-09, 253. S1’s
termination recommendation referenced contact reports documenting numerous examples of
Complainant’s performance deficiencies. IR 260-68, 278-81, 307-11. Complainant resigned
on November 29, 2010, however. IR 208, 217-18, 256. When asked why she believed that
S1 forced her to resign on account of her race, Complainant replied that S1 disliked her
because she was a white female. IR 196.
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In finding in the Agency’s favor, the AJ had determined that S1 was a highly credible witness
and accorded her affidavit and hearing testimony great weight. An AJ’s credibility
determination based on the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the testimony or the
testimony so lacks in credibility that a reasonable fact finder would not credit it. See

EEOC
Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). S1 acknowledged that
she was the one who had hired Complainant, but it soon became apparent that Complainant had
difficulty adapting to the fast-paced work environment of Environmental Management
Services. IR 201, 207. S1’s testimony was supported by that of the Assistant Chief, the
Administrative Officer, and an Interior Designer, who all testified that although S1 was a very
demanding manager, they did not observe her treat any employees differently or less
favorably. IR 235-36, 243, 249; HT 65-68, 75-76.
At the hearing, Complainant called as a witness a Housekeeper who testified that S1 was
abusive and hostile toward employees in Environmental Management Services, and that he
himself had filed an EEO complaint against S1. However, the AJ did not credit this
individual’s testimony because he did not witness any interaction between S1 and Complainant.
HT 83-85. Thus, neither the Housekeeper’s testimony nor any other documents or sworn
statements presented by Complainant contradict S1’s explanation for Complainant’s resignation
and the events leading up to it, or otherwise call S1’s veracity into question. We therefore find
no basis upon which to disturb the AJ’s credibility determination regarding S1’s explanations
for the six incidents described above. All of those occurrences, whether viewed singly or
collectively, involved routine work-related admonishments, none of which rose to a level of
harassment so intolerable that it would force a reasonable person in Complainant’s position to
resign. See Eckenrode v. United States Postal Service

, EEOC Appeal No. 0120113930
(November 6, 2012). Ultimately, we agree with the AJ that Complainant has not sustained her
burden of proof regarding her claim of constructive discharge based on her race.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
January 28, 2015