Lorita S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 28, 20180120172738 (E.E.O.C. Nov. 28, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lorita S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172738 Agency No. 200I00052016105035 DECISION On August 8, 2017, 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 August 3, 2017, final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as an Information Security Officer (“ISO”) at the Agency’s Medical Center in Charleston and Columbia, South Carolina. On October 27, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her based on sex (female). Prior to commencing the investigation into the complaint, the Agency noted that Complainant’s allegations were provided in a lengthy timeline, with no clear delineation on the claims. The Agency also noted that while the formal complaint had only listed sex as the basis of her complaint, her submissions discussed her disability, and engagement in EEO activity. Therefore, the Agency determined that disability and reprisal were to be added to the investigation. It stated that Complainant could chose not to pursue these bases if she desired. 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. 0120172738 2 The Agency also dismissed some of Complainant’s claims. It also noted that among the many alleged claims, Complainant had provided allegations pertaining to prohibited personnel practices, and determined that those matters did not fall within the purview of EEO law and regulations. The Agency instructed Complainant that to file a prohibited personnel practice complaint, she had to contact the Office of Special Counsel. It provided Complainant with the appropriate contact information. The Agency further determined that allegations Complainant raised regarding the types of questions that was asked by the during her investigation was not within the jurisdiction of the EEO process, and that she would have to address those concerns under the jurisdiction of the Office of Personnel Management. The Agency accepted Complainant’s allegations as follows below. However, the Agency determined that claims 5, 10, and 11 were dismissed for untimely EEO Counselor contact. Nevertheless, because the claims 5, 10, and 11, were sufficiently related to the overall pattern of harassment, the Agency determined that those claims would be included in the harassment analysis. The Agency accepted for investigation Complainant’s allegations that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex (female), disability (mental and physical), and reprisal for prior protected EEO activity when: 1. on February 8, 2014, Complainant’s supervisor, the Network Seven Information Security Officer (hereinafter referred to as “S1”) assigned her to work as an ISO with the Facility Information Security Officer as her Technical Career Field Mentor (hereinafter referred to as “the Mentor”); 2. on February 13, 2014, the Medical Center Director (hereinafter referred to as “the Director”) and S1 treated her differently when they did not allow her to submit security incidents in violation of an Agency Directive 6500; 3. in March 2014, the former Chief Information Officer (“CIO”) made inappropriate comments when he referenced her being a single parent and stated that she should have a plan in place to make arrangements for someone to watch her son when she works late; 4. on November 7, 2014, the Director accused her of submitting a National Service Operations Center (“NSOC”) incident ticket and threatened to take action against her; 5. on December 5, 2014, S1 denied her request for a new mentor; 0120172738 3 6. on January 12, 2015, S1 gave her instructions when documenting NSOC tickets that were in contravention of Charlestown leadership instructions; 7. from January 28, 2015, through February 2, 2015, a coworker (Coworker) accused her of hindering him from completing his duties; 8. from January 28, 2015, through February 2, 2015, S1 called her inappropriate names, yelled at her, called her a troublemaker, and subjected her to remedial training after she filed an informal EEO complaint against the CIO; 9. on February 12, 2015, S1 stated that she was on her own when she complained of hostile treatment from the Assistant Medical Center Director (hereinafter referred to as “the Assistant Director”), who chastised, ridiculed, insulted, and belittled her; 10. on February 24, 2015, S1 denied her request to transfer to the Augusta, Georgia facility; 11. on February 25, 2015, S1 requested a local mentor to train her; 12. on March 13, 2015, S1 took no action when she reported the hostile work environment, lack of support, and bad advice from the Mentor; 13. on April 7, 2015, Complainant’s second line supervisor, the Network Three Information Security Director (hereinafter referred to as “S2”) informed her that management was not pleased with her performance, that she could not do her job, and that she needed training; 14. on April 7, 2015, the S2 informed her that she needed to stop communicating via email and to walk around the facility to management and coworkers’ offices; 15. on May 25, 2015, S1 delayed her promotion and did not act to correct the promotion date from April 1, 2015, to February 8, 2015, her anniversary date; 16. on October 12, 2015, the Mentor suggested that she transfer to the Augusta, Georgia facility; 17. on November 23, 2015, she informed the Assistant Director that she accepted a position at the Columbia, South Carolina facility, and the Assistant Director stated, “Well, we've known for quite some time what you were trying to do"; 18. on December 4, 2015, the Mentor instructed her to request a transfer to the Augusta, Georgia facility; 0120172738 4 19. on January 4, 2016, S1 got upset when she was offered the Columbia, South Carolina position, and requested a work environment free from manipulation, harassment, and intimidation; 20. on January 22, 2016, she requested a new office space from Sl, the Mentor, and the Columbia Medical Center Assistant Director. However, no response was received; 21. on March 12, 2016, the Director accused her of having performance and dress code issues, after she submitted a report of contact about the Assistant Director; 22. on March 15, 2016, S1 called her a troublemaker; 23. on March 24, 2016, S1 informed her that a fact-finding against her would be convened; 24. on April 8, 2016, S1 accused her of “tattling” about the Mentor being allowed to telework; 25. on July 26, 2016, and on August 8, 2016, the Mentor accused her of creating a hostile work environment; 26. on August 15, 2016, and on August 19, 2016, S1 failed to provide her with information on the March 2016 fact-finding and EEO complaint, stating good luck; 27. on October 16, 2016, S1 accused her of being a troublemaker and stated that at the request of the Columbia, South Carolina facility management, that he could have fired her; 28. on November 4, 2016, she resigned from her agency position. After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. Complainant asserted that it was apparent from the final Agency decision that none of the email evidence she submitted or the witness statements provided were reviewed. Complainant alleged that the email evidence depicted years of harassment. Complainant also provided witness statements, including one from a fellow coworker who worked in an identical position, in the same facility, with the same supervisor, and was not treated in the same manner as Complainant. Complainant further asserts that there are several 0120172738 5 errors referenced in the final Agency decision. For example, Complainant notes that the final decision incorrectly stated that she testified that the harassment was not based on her disability or in reprisal for prior protected activity. Complainant denied ever making such statement. The investigative record reflects the following salient events relating to the subject claims. Complainant’s first line supervisor was the Network Seven Information Security Officer (male, no disability, no prior EEO activity) (hereinafter referred to as “S1”). Complainant’s second line supervisor was the Region 3 Information Security Director (female, no prior EEO activity, no disability) (hereinafter referred to as “S2”). S1 and S2 were not unaware of Complainant’s prior EEO activity, or disability. Issues with the Mentor (Claims 1, 5, 16, 24, 25) On February 8, 2014, S1 assigned the Facility Information Security Officer as Complainant’s Technical Career Field Mentor (male, prior EEO activity and disability unknown) (hereinafter referred to as “the Mentor”). S1 did so because the Mentor worked at the same facility with Complainant (claim 1). Complainant did not articulate why she believed the initial assignment of the Mentor to her was an act of harassment. She did note that she felt she could have been assigned a non-local mentor as other individuals had non-local mentors assigned. On December 5, 2014, Complainant requested S1 provide her with a new mentor, as she felt the Mentor was a poor guide (claim 5). Complainant’s request was denied, as was her dispute of the denial. S1 denied the request as there was no evidence that the Mentor was failing in his role. He noted that the Mentor facilitated Complainant graduating from the new ISO program ahead of time, and that he worked in one of the local facilities, making contact easy. He informed Complainant that she was welcomed to solicit assistance from the two ISO mentors that she requested, but that he would not formally change her mentorship. On October 12, 2015, the Mentor suggested that she transfer Augusta Medical Center (claim 16). The Mentor offered her assistance, purportedly access to interview questions, but she declined. The Mentor knew from the past that Complainant had contemplated transferring facilities, and he had heard the Augusta Center had a possible opening. Therefore, he suggested to her, as her coworker and mentor, to consider a change of duty. He denied being hostile in any manner, or offering her the interview questions. On April 8, 2016, S1 accused Complainant of “tattling” and trying to get the Mentor in trouble for his telework schedule (claim 24). Complainant asserted that she did not appreciate the childish terminology, and that she was right to question the Mentor’s, and any other employees, telework schedule. S1 acknowledged referencing to Complainant as “tattling” in an email, and that employees’ telework schedules were not Complainant’s concerns. On July 26, 2016, and on August 8, 2016, the Mentor purportedly accused Complainant of creating a hostile work environment (claim 25). The Mentor denied ever filing a complaint against Complainant. 0120172738 6 Hostile Work Environment (Claims 2, 3, 4, 6, 7, 8, 9, 11, 13, 14, 15, 20, 21, 22, 23, 26) In February 2014, Complainant sent an email to S1 about security violations. Complainant also asserted that the former Chief Information Officer (hereinafter referred to as “the CIO”) was telling employees to bypass her judgment (claim 2). During a routine audit, Complainant became aware of a potential security violation. The Medical Director (male, engaged in prior EEO activity, no disability) (hereinafter referred to as “the Director”) requested that Complainant discuss the matter with him first before she submitted the violation. The Director stated that as an ISO, Complainant was expected to bring any questions/concerns to the Assistant Medical Director (female, prior EEO activity as a manager, no disability) (hereinafter referred to as “the Assistant Director”) immediately prior to reporting so that senior leadership was aware of all issues. S1 acknowledged that this appeared to be unnecessary micromanaging, but informed Complainant of the directive. In March 2014, Complainant alleged that the CIO harassed and scolded her for being a single parent (claim 3). S1 believed the comments were made due to the CIO’s expectation that Complainant would stay on hand to complete a “nerve-wrecking” Office of the Inspector General (“OIG”) audit. Nonetheless, he felt the comments were inappropriate and relayed his concerns to the Assistant Director, the Director, and the Region 3 Information Technology (“IT”) Director, CIO’s supervisor. The Mentor stated that the CIO was stressing the importance of completing the OIG audit when Complainant stated that she “had a son in daycare and things of that nature.” The Region 3 IT Director discussed the event with the CIO. The CIO asserted that even though Complainant is a single parent, she was expected to complete her job, and should have prepared for alternative child care needs if she had to work. The Region 3 IT Director stated that the comment was inappropriate, and that he (the CIO) should apology to Complainant. When the Region 3 IT Director followed up, he found the CIO and Complainant were behaving professionally, so he did not pursue the situation further. Complainant asserted the Director accused her failing to follow proper protocol in submitting a National Service Operations Center (NSOC) incident ticket (claim 4). Complainant informed S1 that she had not submitted any tickets as alleged by the Director. The Director believed that Complainant failed to follow department protocol that stated ISOs should notify senior facility leadership regarding potential security violations immediately prior to submission on a violation ticket. S1 researched the matter and did not locate any tickets, no further action was taken. Complainant stated that every time she would attempt to manage the ISO program within the Ralph Johnson Medical Center, the Assistant Director would email S1 to have her decision superseded (claim 6). S1 told her to go with her “gut feelings” when it came to filing tickets and she thought he was finally allowing her to do her job and not be micromanaged. S1 stated Complainant was provided with instructions to report any occurrences where facility leadership discouraged her from submitting tickets. During the OIG audit, there were concerns that facility leadership was preventing Complainant from submitting tickets, so S2 made a site visit and talk with Complainant and the facility to make sure policy was being adhered to. To his knowledge, the visit was a success and there were no further occurrences. 0120172738 7 From January 28, 2015 to February 2, 2015, Complainant’s coworker (hereinafter referred to as “CW”) accused Complainant of hindering him from completing his duties (claim 7). CW sent S1 a Report of Contact (“ROC”) alleging that Complainant was hostile, damaging the relationship between services, and preventing him from doing his job. Around the same time, another colleague filed a complaint against Complainant. Complainant alleged that S1 called her a trouble maker and yelled at her (claim 8). Complainant felt the complaints lodged against her were baseless. She disputed the claims to S1, but he assigned her training for interpersonal communication skills and customer service. S1 noted that every year, all employees were required to take an annual competency assessment, and the final act was to assign at least one course to all employees. Given the circumstances, he assigned interpersonal skills to Complainant. S1 also researched assigning Complainant a local mentor to assist with her customer service skills, he denied that it had to do with her protected bases. Complainant asserted that the Assistant Director, and others, were hostile toward her (claim 9). S1 noted that Complainant sent an email to him, with the Assistant Director copied on it, accusing the Assistant Director of being hostile. The Assistant Director responded asking Complainant to address problems with her directly. In a second incident, Complainant refused to recognize the Region 3 IT Director’s approval on a matter. He informed Complainant that she was on her own in doing so, as the Region 3 IT Director had every right to make his decision. In February 2015, Complainant noted that S1 attempted to assign a local mentor due to alleged poor customer service (claim 11). S1 stated that Complainant received additional assistance from a local mentor for several weeks, and he believed it was of great value to Complainant. In March 2015, Complainant informed S2 that the Mentor provided bad advice (claims 12 and 21.)2 She also alleged that it contributed to the hostile work environment that she was in. S1 was aware of ongoing problems Complainant had with upper leadership at the Charleston Medical Center, and affirmed that was a reason behind assigning a local mentor. In April 2015, Complainant submitted a Report of Contact (“ROC”) to S1 and S2 regarding the Assistant Director publicly humiliating her (claim 13). Complainant was also told to stop communicating mostly by email and to walk around the facility to have in-person interactions (claim 14). Complainant felt that was just another harassment technique as management knew she walked with a limp. She acknowledged being too nervous and scared to tell S1 that she had an injury that made walking difficult though. Overall, she felt her ROC was ignored, and she was being punished, so she gave up pursuing the matter. S2 stated that there had been on-going issues reported between Complainant and the executive leadership team at Charleston Medical Center. She spoke with Complainant to discuss Complainant’s concerns. On Tuesday, April 7, 2016, she and S1 did a site visit to meet with the Director, Complainant, and another information security officer. From the visit, S1 and S2 gathered that Complainant might benefit in getting training 2 S1 and the Director noted that claim 21 is related to claim 12, and it appeared the date should have been written as March 2015, not 2016, as Complainant was no longer at the Charleston facility by March 2016. 0120172738 8 assigned to her and more experience working at other facilities. S1 and S2 denied having any knowledge that Complainant had a disability, both stated that Complainant did not have a noticeable limp when she walked. On May 25, 2015, S1 delayed Complainant’s promotion and did not act to correct the promotion date from April 1, 2015 to February 8, 2015, her anniversary date (claim 15). S1 asserted that he did research the matter once Complainant informed him. S1 stated that HR overlooked the promotion, but immediately processed it with an effective date of April 5, 2015. S1 claimed that Complainant never asked for it to be retroactive to February 2015. Emails document that Complainant questioned why it did not start on February 8, 2015, with S1 responding that Complainant should inquire directly with HR. On January 22, 2016, she requested a new office space from S1, the Mentor, and the Columbia Medical Center Assistant Director. However, no response was received (claim 20). Complainant noted that the person she had to share with would have private patient information up, which made her uncomfortable, and that she often played loud music and discussed non-work issues with other colleagues. That individual later complained of Complainant being a poor office- mate. Due to the situation, S1 was asked to visit the Columbia Medical Center. Complainant believed that S1 called her a troublemaker on that visit, and claimed he could have her fired (claims 22 and 26). S1 was later involved in a March 2016 fact-finding investigation regarding the office sharing situation (claim 23). S1 denied calling her a troublemaker, but noted that the Charleston Director had a poor relationship with Complainant, and might have viewed her as a troublemaker. S1 denied ever threatening to fire her, and felt that he took several precautions to help her keep her job. Regarding the fact-finding investigation, he stated that S2 suggested that he initiate one regarding the office space, and the poor relationship between Complainant and her then office- mate. The fact-finding was later put “on hold,” and never continued. S1 countered that he always tried to help Complainant, and that everyone “bent over backwards” to secure a separate office for her. He noted that after hours of research, he was able to secure a separate office space for her when she returned from maternity leave. Complainant rebutted this assertion, and said this was false. Complainant cited to an email from November 2, 2016, where another individual from the Columbia facility claimed that S1 was of no assistance, and that all S1 did was go by the facility and attempted to look for an office for Complainant, but did not greet him, or ask him directly if there was space. On August 15, 2016, and on August 19, 2016, S1 failed to provide Complainant with information on a March 2016 fact finding and EEO complainant stating, “good luck” (claim 26). Complainant stated that prior to going on maternity leave, she was informed by S1 that he was trying to resolve her concerns of harassment and hostile work environment. S1 later allegedly informed Complainant that he believed her concerns were resolved when she moved to the Columbia facility, and wished her luck. Complainant believed S1 did not care because she’s female. S1 stated that he started a fact-finding, but was later told to stand down, and that he did 0120172738 9 not know what else to share but wished her good luck. S1 denied that the statement was made with any harassing intent. Transfers (Claims 10, 17, 18, 19) On February 24, 2015, S1 denied Complainant’s request to transfer to Augusta Medical Center (claim 10). S1 stated that the office she wanted to transfer to no longer accepted transfers, but told her she could apply for the position. Complainant confirmed that transfers were no longer accepted, and applied for a position. On November 23, 2015, Complainant informed the Assistant Director that she accepted a position with Columbia Medical Center (claim 17). Complainant asserted that the Assistant Director was rude in response. The Assistant Director denied being rude. Complainant provided a ROC with two colleagues affirming Complainant’s statements. Complainant also asserted that the Mentor expressed his frustration that she did not apply for an Augusta position because he wanted the Columbia position (claim 18). S1 was aware of Complainant’s concerns, and spoke with the Mentor, who denied ever being hostile, or attempting to sabotage Complainant’s career. The Mentor noted that they used to have a respectful and professional relationship, and when It was damaged, he offered to make amends. Complainant also asserted that S1 spoke to her in a degrading manner regarding the Columbia position, and the Mentor (claim 19). Complainant cited to a January 4, 2016 email where S1 allegedly said that the Mentor was being subjected to corrective measures based on the circumstances. The email in question noted tension between Complainant and the Mentor, and advised Complainant that if the Mentor initiated any negative conversations to contact him, and that S1 would assist Complainant in possible complaint procedures. The email did not state that the Mentor was being subjected to corrective measures. Resignation (Claim 28) Complainant stated that she was constructively discharged based on the ongoing hostile work environment that S1, and other managers, failed to stop. Complainant stated that she did not discuss the matter with anyone until she decided to resign. Complainant noted that she provided witness statements from others who felt she was also harassed, and/or experienced harassment themselves. S1 stated in no way was Complainant forced to resign, and that he had no idea she was planning to resign. S1 noted that she received an excellent performance rating for Fiscal Year 2016. Her serious issues dealt with customer service and interpersonal relationships which did not factor into her review as they were behavioral and conduct issues. ANALYSIS AND FINDINGS As a preliminary matter, we note that the agency initially dismissed claims 5, 10, and 11 for untimely EEO Counselor contact. However, because the Agency determined that the claims were 0120172738 10 sufficiently connected to Complainant’s overall hostile work environment claim, the Agency considered those claims in its analysis. Since the Agency has included those claims in its overall hostile work environment claim, we will not address its procedural dismissal. Furthermore, we do not find reason to disturb the Agency’s procedural dismissal of certain claims regarding prohibited personnel matters, and concerns regarding the Office of Personnel Management. We find that the Agency appropriately directed Complainant to correct avenues for those concerns. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant asserted that it was discriminatory and hostile for S1 to refuse to change her mentor when she requested a new one (claim 5). Complainant detailed numerous issues she had with the Mentor (claims 1, 5, 24, and 25), and asserted that S1’s demeanor, lack of action, and decisions, were discriminatory because he treated Complainant like a child, and spoke down to her regarding her concerns about her mentorship. Based on the record, it appeared that Complainant disliked the Mentor early on, and felt that he intentionally sabotaged her career. Complainant asserted throughout the investigation that emails from S1 demonstrated that he was on her side, but then took no action. For example, she claimed repeatedly that S1 informed her that the 0120172738 11 Mentor was caught in lies, and would be disciplined. A review of the emails provided by Complainant do not demonstrate such statements on behalf of S1. In these claims, there is nothing discriminatory about S1’s decision to pair Complainant with the Mentor, or any of S1’s subsequent decisions regarding the Mentor and Complainant’s professional relationship. In another example, Complainant alleged that her attempts to transfer out of the Charleston facility were denied (claim 10). Here, the record demonstrated that the Augusta Medical Center did not accept transfers, only applications. S1 informed Complainant of this, and encouraged her to apply if she wanted. Complainant herself acknowledge that she confirmed this information, and later applied for a position at the Augusta Medical Center. There is nothing to demonstrate that S1 either denied transferring her, which he could not, or that he attempted to bar her from applying. In sum, there is no evidence which suggests the Agency’s actions in the above numerous claims were based on discriminatory animus. Complainant has not provided any evidence that suggests that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved. Harassment and Constructive Discharge To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis – in this case, because of her sex, disability, or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant has cited various incidents (claims 1-27) where the Agency took actions that she found to be adverse or disruptive to her. We find, however, that Complainant failed to show that these incidents were the result of unlawful discrimination. We find it unnecessary to address in detail the litany of these claims, but will note some matters in detail to support our determination. For example, in claim 3, the former Chief Information Officer (“CIO”) was rude, and demeaning towards Complainant when he made statements about her child-care needs, and relaying his expectations that she arrive to work early, and stay late until the Officer of the Inspector General’s (“OIG”) audit was complete. In that incident, Complainant promptly contacted S1 0120172738 12 regarding the matter. S1 responded in an email to Complainant, and testified his belief during the investigation, that the OIG audit was making employees lose their common sense. Still he found the comments to be highly inappropriate, and he immediately contacted a chain of managers, including the CIO’s supervisor. From there, the CIO was given a discussion, and informed of his need to apology. The record further indicated that when the Region 3 IT Director followed up, he found the CIO and Complainant were behaving professionally. Therefore, so he did not pursue the situation further. This claim demonstrated that Complainant was treated poorly by a senior leader in the workplace. However, it also demonstrated the swift actions of her supervisor, S1, and of other managers, that stepped in to rectify the situation. Additionally, Complainant argued that as a result of the continuous hostile work environment, as discussed above, she was forced her to resign (claim 28). Regarding constructive discharges, the Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Department of Justice, EEOC Request No. 05940688 (April 13, 1995). The record contains a plethora of documentation from both Complainant and the Agency. Based on the record, it was clear that Complainant had a contentious relationship with some of her colleagues, and senior leadership, particularly at the Charleston Medical Center. However, 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). Even in reviewing the witness statements provided by Complainant, the record simply does not show that the conduct at issue was based on animus toward Complainant’s protected classes, or in reprisal. Rather, the record demonstrates an ongoing situation where all relevant individuals played a role in the lack of civility in the workplace. We conclude that Complainant has therefore failed to prove constructive discharge. The complained of conduct did not constitute unlawful discriminatory behavior. It was not based on her sex, disability, or in reprisal. We therefore find that Complainant's resignation on November 4, 2016, was voluntary. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. 0120172738 13 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. 0120172738 14 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, Director Office of Federal Operations November 28, 2018 Date Copy with citationCopy as parenthetical citation