0120103158
06-27-2012
Lillian Ann Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lillian Ann Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103158
Hearing No. 550-2009-00175X
Agency No. 200P03432008103444
DECISION
Complainant filed an appeal from the Agency's June 17, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative (VSR) in Oakland, California. Complainant had been hired in November 2007, as a VSR trainee, subject to a one-year probationary period.
The Veterans Benefits Administration facility where Complainant was employed is divided into six teams: Public Contact; Triage Team; Pre-Determination Team; Rating Unit; Post-Determination Team; and the Appeals Team. Complainant was part of the Post-Determination Team (Post-D). The Post-D is responsible for entering the results of claims into the Agency's computer system to generate or deny payments of benefits to veterans and other beneficiaries. The record reflects that when claims from veterans or their beneficiaries are received, the claims first go through Pre-Determination (Pre-D) where notification is then generated to a Ratings Team which, in turn, determines whether to grant or deny benefits. Subsequently, the Post-D team enters data to generate or deny the payment. Prompt processing of Post-D claims is critical to notify the veterans of the Agency's decision and to initiate payment of benefits.
On July 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), age (59), and reprisal for prior protected EEO activity when:
1. On June 16, 2008, Complainant resigned from her probationary position as a Veteran Service Representative;
2. Complainant was subjected to harassment that included the following incidents:
a. In December 2007, E1, Complainant's coworker taunted her, bullied her, and mimicked her Southern accent in a mean-spirited fashion;
b. In December 2007, E1 implied that Complainant made a racist remark to him;
c. In December 2007, E1 shared a cubicle with Complainant, and was rude to Complainant on a daily basis by ignoring her and not speaking to her when she would ask him a question;
d. After December 2007, E1 took veterans' claims documents on Complainant's desk and hid them and generally sought to undermine Complainant's work and her relationships with other team members;
e. In February 2008, Complainant complained to her supervisor (S1) about being subjected to E1's harassment and requested an investigation be conducted. S1 stated that no investigation would be conducted;
f. From April 2008 to May 2008, E1 was rude to Complainant unless S1 was present. E1 moved a high priority case under a stack of low priority cases;
g. Between April and May 2008, Complainant was told that E1 made negative and/or derogatory comments about Complainant, including accusing her of being racist, and ridiculed Complainant in their training class behind her back;
h. In May 2008, Complainant was moved into a cubicle with E1's good friend; and
i. On June 13, 2008, (after she notified the Agency of harassment and asked for paperwork to file a complaint), Complainant was informed she would be terminated due to poor work production.
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 EEOC Administrative Judge (AJ). The AJ held a hearing on January 10, 2010, and issued a decision finding no discrimination on June 3, 2010.
In her Decision, the AJ found that Complainant had been hired with approximately 10 other trainees, four of whom were subject to the same one-year probationary period. The AJ found that an Asian co-worker, E1, had become offended by Complainant during lunch in December 2007, when Complainant had suggested that another co-worker ask E1 about the nationality of some Asian cafeteria workers, saying, "Why don't you ask [E1], he probably knows." Thereafter, the AJ found, E1's attitude toward Complainant changed. The AJ found that E1 expressed his dislike for Complainant to other employees and was heard mocking Complainant's Southern accent. The AJ found that Complainant felt E1 treated her as if she were invisible. The AJ found that Complainant notified her supervisor, S1, in February 2008, of the events and the conflicts she believed to exist between herself and E1.
The AJ concluded that Complainant failed to establish a prima facie case of harassment on any basis. The AJ found that the incidents described in Complainant's complaint and as confirmed by the evidence presented at the hearing did not rise to the level of actionable harassment. The AJ found that E1's behavior was "immature and unprofessional," but was not so severe or pervasive such that it created a hostile work environment. Moreover, the AJ found that Complainant herself contributed to the poor work relationship she shared with E1. The AJ considered that Complainant became aware that E1 and other employees had used the terms, "dyke", "racist", and "lesbian" when referring to Complainant in workplace conversations where Complainant was not present. The AJ found, however, that because these remarks were not made in Complainant's presence and because Complainant learned about the offensive comments only after her employment had ended, the remarks could not have contributed to a hostile work environment. The AJ found that one offensive comment was allegedly made by a VSR trainee in a competitive team game during training outside of Complainant's presence (and not directly heard by Complainant). The AJ noted that this VSR trainee was an employee of a different office with whom Complainant would not interact with apart from the training. The alleged remark was: "She's [Complainant's] the kind of girl that should be taken in a locker room, wrapped in a towel, and beaten." The AJ found that this alleged remark was "offensive," but not sufficiently severe so as to constitute a hostile work environment by itself or combined with the other incidents in the complaint.
The AJ found that Complainant did not show that more likely than not the offensive behavior to which Complainant was subjected to was motivated by her race, sex, age, or reprisal. The AJ found that the evidence demonstrated that E1 did not like Complainant because E1 was offended by a comment Complainant made which E1 perceived as racist. The AJ found that from that point on, the relationship between E1 and Complainant rapidly deteriorated. The AJ noted that Complainant admitted calling E1 an "asshole" to their supervisor. The AJ described the behavior of both E1 and Complainant as "childish and immature." The AJ noted that E1 filed an EEO complaint alleging that Complainant's behavior subjected him to a hostile work environment.
The AJ found that although Complainant believed that other employees did not talk with her much because of E1's influence, coworkers actually did not like Complainant for other, non-discriminatory reasons. One coworker testified that he was offended by a comment Complainant made that he perceived as racist. Two other coworkers testified that they tried to minimize their interactions with Complainant because she talked too much and too much about politics. S1 testified that that she believed that other VSR trainees avoided Complainant because of her argumentative and confrontational nature. The AJ noted that Complainant acknowledged that S1 counseled her about her "abrasive" personality.1
The AJ noted that Complainant stated that she believed E1's conduct was because Complainant is gay. The AJ stated that discrimination based on sexual orientation is not prohibited by Title VII and is not within EEOC's purview. The AJ stated that sexist attitudes and stereotyping, however, can constitute sex discrimination. The AJ found that nothing in the record indicated there was any sexual stereotyping; rather, Complainant's coworkers found that she was too talkative and argumentative, several were offended by her political comments, and some were offended by what they considered racist remarks by her.
The AJ considered that even if Complainant had established that she was subjected to a hostile work environment, that the Agency took immediate, corrective action to address the harassment when Complainant reported it. The AJ found that on the same day Complainant informed S1 of her concerns, S1 spoke with the second line supervisor and asked Complainant to put the complaint in writing and provide additional information. The AJ found that Complainant refused to provide additional information. The AJ found that Complainant's written complaint was then forwarded to the Director on the same day it was submitted. The AJ found that the Agency conducted a "fact finding" to investigate Complainant's allegations. The AJ found that within days of receiving the complaint, S1 spoke with coworkers (including E1), and E1 received oral and written counseling by S1 regarding his conduct in the workplace. The AJ noted that Complainant stated that S1 tried to reassure Complainant that "things will get better" and to tell S1 if she was still being harassed. The AJ found that S1 offered Complainant the opportunity to have a meeting with S1 and E1 to resolve any problems between E1 and Complainant, but that Complainant refused such a meeting. The AJ found that S1 offered to move Complainant out of the pod she shared with E1, but Complainant refused the offer. The AJ found that S1 stated that E1's behavior in the workplace improved and S1 received no further complaints about his conduct after May 9, 2008.
Regarding the alleged offensive comment made by a coworker during the training, the AJ found that the Agency conducted a "fact-finding" about that issue. The AJ found that the coworker denied making the alleged comment and none of the other coworkers heard the alleged comment. The AJ found that the Agency took appropriate steps to end the harassment and to ensure that it did not reoccur.
Regarding the alleged constructive discharge, the AJ found that the work performed by employees occupying VSR positions is recorded in an Agency program called ASPEN, where each function the employee performs is awarded an amount of points per transaction. Complainant's productivity was low and came to the attention of her supervisors (S1, S2, and S3). The supervisors concurred that Complainant's performance was not satisfactory and that Complainant was not showing progress toward the goal of averaging four weighted actions per day. The AJ considered that Complainant's poor performance was documented by her supervisors as early as December 2007, before the Agency implemented the use of the ASPEN system of transaction tracking. Indeed, the AJ noted that at least one supervisor (S2) suggested terminating Complainant's employment in December 2007. Complainant did not complain about E1's harassment until February 2008. Accordingly, the AJ found that the Agency's decision to terminate Complainant's employment was not motivated by retaliation for what Complainant believed to be prior protected activity (complaining to S1 about E1's homophobic behavior). On the contrary, the Agency's concerns about Complainant's performance that existed as early as December 2007, and continued through the following months after implementation of the ASPEN program which further documented Complainant's unsatisfactory productivity. The AJ found that Complainant did not establish that more likely than not the Agency discriminated against Complainant when Complainant's termination was proposed and Complainant elected to resign in lieu of termination.
The Agency subsequently issued a Final Order on June 17, 2010, adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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. (November 9, 1999).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
In the instant case, we find substantial evidence supports the AJ's finding that Complainant failed to establish that she was subjected to unwelcome conduct sufficiently severe or pervasive to create a hostile work environment. We find the handful of events insufficient to create an atmosphere charged with hostility based on discrimination such that it altered the terms and conditions of Complainant's employment. We find, as did the AJ, that upon notice, the Agency did take prompt and appropriate corrective action to address the incidents brought to its attention.
With respect to Complainant's resignation, we further concur with the AJ that Complainant failed to show that the Agency proposed her termination in retaliation for Complainant's prior protected activity. We find the evidence supports the Agency's reasons for issuing a proposal to terminate Complainant's employment during her probation because of her failure to progress from month to month and because of concerns over Complainant's overall productivity. We find that Complainant did not show that other probationary employees, outside of Complainant's protected groups, were not terminated. Rather, we note that the employee Complainant seeks to compare herself to (C1) was also terminated during his probation. Nevertheless, C1 is not similarly situated to Complainant in that he was hired to work at a different facility and reported to different supervisors than did Complainant.
The instant complaint is not based on sexual orientation, but to the extent that Complainant is attempting to claim discrimination on the basis of sexual orientation, we agree with the AJ that such a claim is not within the EEOC's purview. See Castello v. United States Postal Serv., EEOC Request No. 0520110649 (December 20, 2011). The Commission has held, however, that Title VII does, however, prohibit sex stereotyping discrimination. Id. (citations omitted). We also agree with the AJ, however, that Complainant has not claimed or shown that she was subjected to any sex stereotyping discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order finding no discrimination and we find that the AJ's decision is supported by substantial evidence.
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.
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 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
June 27, 2012
__________________
Date
1 The AJ also stated: "Complainant's argumentative, abrasive and confrontational behavior was evident at the hearing. Complainant was rude to witnesses, opposing counsel and the Administrative Judge, and had to be warned repeatedly about disruptive verbal outbursts . . . while Agency witnesses were testifying."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103158