Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 201501-2013-2297-0500 (E.E.O.C. May. 20, 2015) Copy Citation 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. 0120132297 Hearing No. 510-2012-00214X Agency No. 2001-0010-2011103005 DECISION On May 30, 2013, Complainant filed an appeal from the Agency’s May 3, 2013 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Regional Nurse at the Office of Clinical Consultation and Compliance (OCCC) in Orlando, Florida. On August 10, 2011, she filed an EEO complaint in which she alleged that the Acting Regional Director, her immediate supervisor (S1), had harassed her between April and December 2011, because of her race (African-American) and because she had filed the instant complaint. Complainant initially alleged that S1 denied her requests to telework on April 8 and September 20, 2011. Investigative Report (IR) 70-71, 79, 145, 147. Due to the nature of OCCC’s mission and the need for OCCC employees to constantly travel, telework was available only on an ad-hoc basis and requests for telework had to be made in advance and approved by one’s immediate supervisor. Investigative Report (IR) 69-72, 93, 97-98, 114, 132, 136. S1 averred that Complainant’s presence was needed in the office on both days in question. IR 93, 141-42, 148. 0120132297 2 Complainant next alleged that S1 had reprimanded her. On June 16, 2011, S1 issued Complainant a letter of verbal discussion in which she noted that Complainant arrived late for work by one hour on Monday, June 13, 2011, and for thirty minutes on Thursday, June 16, 2011. S1 testified that Complainant had a history of being tardy, but also acknowledged that she had a long commute. Complainant and S1 mutually agreed that Complainant’s shift would begin at 8:30 in the morning. S1 noted that there were no further incidents of tardiness on Complainant’s part. IR 75-76, 93-94, 131. Third, Complainant alleged that on unspecified dates, S1 routinely denied her the opportunity to participate in enrichment activities that could have enhanced her performance evaluation. IR 77. S1 and OCCC’s Acting Deputy Director for Operations, Complainant’s second-line supervisor (S2), both averred that on one occasion, Complainant had expressed an interest in serving on an ethics committee at the national office level, and that they turned her request down because they already had an individual from OCCC serving on that committee. IR 98, 115-16. Complainant had also inquired about participating in an Excellence-in-Government Fellows program, but was informed that she was not eligible to participate in that program because she was a Level III Nurse, as opposed to a Level IV Nurse. IR 95-96, 161. Fourth, Complainant alleged that on an unspecified date, S1 gave conflicting information that resulted in the delay of an expense report being accepted by the Agency’s computerized travel system, Fed Travel. IR 81-82. Complainant had missed a flight, and as a result, the expense report she had submitted could not be reconciled with the expenses actually incurred, and was rejected by the system. The problem was eventually resolved. IR 98-99, 116, 127-30. Finally, Complainant alleged that on December 8, 2011, S1 gave her an overall rating of “satisfactory” on her 2011 proficiency report. IR 77. S1 had sent out a reminder to her staff to provide her with input for their appraisals within thirty days, but Complainant had not responded. On the basis of her personal observations of Complainant’s performance, S1 determined that Complainant merited a satisfactory rating. S1 averred that she discussed the matter with S2 and concluded that Complainant never performed more than minimal work. IR 95-96. S2 concurred that Complainant had been performing at a satisfactory level. At the conclusion of the investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. 0120132297 3 ANALYSIS AND FINDINGS To prevail on her claim of discriminatory harassment, Complainant would have to prove, by a preponderance of the evidence, that because of her race and EEO activity, S1 subjected her to conduct so severe or pervasive that a reasonable person in her position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service , EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if Complainant satisfies her burden of proof with respect to both of these elements, motive and hostility, will the question of Agency liability present itself. S1 articulated legitimate reasons for each of the incidents that Complainant characterizes as discriminatory. S1’s affidavit testimony has been corroborated by S2’s affidavit and by various emails and contemporaneously prepared memoranda documenting each occurrence. While Complainant asserts that the actions taken by S1 were discriminatory, she has not presented any sworn statements from other witnesses or documents that contradict the explanations provided by S1 or which call S1’s veracity into question. It is Complainant’s burden to establish the existence of an unlawful motivation on the part of the responding management officials by a preponderance of the evidence, and more is required to meet that burden than merely expressing one’s belief. We therefore find, as did the Agency that Complainant failed to meet her burden of proof as to the existence of a discriminatory motive on the part of S1, with respect to any of the incidents at issue in her complaint. Consequently, we need not address whether any of those incidents are severe or pervasive enough to rise to the level of harassment or whether they constitute separate acts of discrimination in and of themselves. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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: 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. 0120132297 4 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 0120132297 5 with the Court does not extend your time in which to file a civil action. Both the request and 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 May 20, 2015 Copy with citationCopy as parenthetical citation