Karol K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 7, 20180120171659 (E.E.O.C. Nov. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karol K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171659 Hearing No. 560-2014-00385X Agency No. 200303312013102302 DECISION 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 March 6, 2017, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, GS-12, in the Education Division at the Agency’s St. Louis Veterans Affairs Regional Office (SLVARO) in St. Louis, Missouri. On May 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (49), and reprisal for prior protected EEO activity when: 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. 0120171659 2 1. On various dates, Complainant’s first level supervisor (S1) was demeaning and told Complainant that her employees had complained about her and did not like her; and he solicited negative comments about her; 2. On various dates, management denied her requests for meetings; 3. On April 22, 2013, a manager sent the selection matrix to the printer; 4. On various dates, management failed to act when she requested a reassignment; 5. On May 2, 2013, Complainant was not selected for the position of Section Chief; 6. On various dates, Section Chief (S2), who was Complainant’s first line supervisor for approximately 6 months, told Complainant that he had been instructed to reduce her appraisal rating; 7. On May 21, 2013, Complainant was charged with 15 minutes of annual leave; 8. On various dates, various managers badgered her, demeaned her, and made false accusations against her; 9. On June 10, 2013, Assistant Director took away Complainant’s supervisory duties by detailing her; 10. On June 12, 2013, Veterans Service Center Manager (M1) gave Complainant a memo detailing his expectations; 11. On various dates, the Chief-Education Officer (S3) made false accusations about her and spoke to her in a threatening/demeaning manner; 12. On June 26, 2013, management instructed and/or overrode Complainant’s appraisal ratings for her employees; 13. On July 1, 2013, M1’s subordinate gave her new work assignments; 14. On August 19, 2013, Complainant was subjected to a fact finding based on her harassment-allegations; 15. On August 20, 2013, Complainant was removed from the supervisory distribution list; 16. On September 26, 2013, Complainant was denied a transfer to an HR position; 17. In October 2013, Complainant was assigned duties during the furlough; 18 & 19. In 2013, employees were advised that Complainant’s position had been downgraded and she was occupying a position that did not exist, she was barred from supervisory meetings, and assigned lower level employees; 20-22, & 25. On November 29, 2013, her appraisal was lowered and she learned that M1 had not assigned her with a new rater for her detail, and a coworker failed to provide her with a close out rating, which resulted in Complainant not receiving credit for the detail; 23. On December 9, 2013, Director of SLVARO assigned an Agency employee to investigate her harassment allegations and she learned that Director had sent emails which stated that Complainant was untruthful; 24. On December 19, 2013, Complainant learned that Director’s supervisor sent emails calling Complainant a liar with respect to her EEO complaint; 26. On January 9, 2014, Complainant was not selected for the position of Management Analyst; 27. S3 denied her appeal of her appraisal; 28. On February 3, 2014, Director referred to Complainant’s EEO complaint in front of an HR Specialist; 0120171659 3 29. On January 29, 2014, S2 made several angry comments to her about her EEO complaint; and 30. On January 28, 2014, a supervisor, who occasionally filled in for S2, discussed her EEO complaint with her and tried to coerce information about Complainant from another employee.2 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). The AJ held a hearing on June 13-15, 2015, and issued a decision on February 23, 2017, finding no discrimination. The AJ reviewed the testimony of thirteen witnesses at the hearing as well as the report of investigation and the complaint processing documents. 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. Complainant appealed. ANALYSIS AND FINDINGS 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. 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. (Aug. 5, 2015). We find that substantial evidence supports the AJ’s findings of no discrimination for the entire complaint. In the instant case, the Agency found Complainant failed to establish she was subjected to a hostile work environment based on her race, sex, age, or reprisal for prior EEO activity. 2 At hearing, no factual basis was presented concerning issues 3, 7, 15, 17, 27, and 28 as these claims were dismissed by the Agency as untimely. Furthermore, Complainant has not challenged the dismissal of these issues. Therefore, these issues will not be specifically addressed in this decision. The AJ noted they would be considered in the totality of circumstances regarding Complainant’s allegation of a hostile work environment. We also shall consider these issues in the totality of circumstances regarding the hostile work environment claim. 0120171659 4 To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Thus, not all claims of harassment are actionable. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, we concur with the AJ’s finding that the evidence establishes she was not subjected to harassment, discrimination, or retaliation as alleged. The AJ noted that while S3 may exhibit unprofessional behavior, no substantive evidence was presented that S3’s behavior was based on Complainant’s protected class, or that it was so pervasive that it constituted a hostile work environment. Complainant also failed to show her performance or qualifications warranted a higher rating or promotion. The record did not support Complainant’s allegation that information regarding her EEO complaints was unlawfully disseminated. Moreover, regarding alleged denied requests to transfer, the AJ found Complainant’s testimony not credible when the record established she never completed written requests to be considered for a transfer. While Complainant may have had a tenuous relationship with her supervisors and colleagues, she has not shown that their conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Additionally, the AJ noted the inconsistencies in Complainant’s testimony throughout the record and hearing were a factor in finding Complainant’s statements were not credible for all allegations. On appeal, Complainant presented no arguments challenging the credibility determinations made by the AJ. We find the record does not contain any objective evidence that contradicts the testimony heard by the AJ to warrant disturbing the AJ’s factual determinations regarding the testimony. Moreover, we find the AJ thoroughly weighed the objective evidence, the testimony of witnesses, and the inconsistencies in Complainant’s testimony in making a decision in this case. Accordingly, we find no reason to disturb the AJ’s decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's implementation of the AJ's finding of no discrimination. 0120171659 5 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. 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. 0120171659 6 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 November 7, 2018 Date Copy with citationCopy as parenthetical citation