Ardelle P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019000967 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelle P.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000967 Hearing No. 510-2016-00282X Agency No. 200I-0548-2015104464 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 October 17, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as an Administrative Assistant, GS-7, in the Dental Service at the Agency’s West Palm Beach Medical Center in West Palm Beach, Florida. A1 was the Chief of the Dental Service, and Complainant’s supervisor. On August 28, 2015, Complainant filed an EEO complaint alleging that she was discriminated against and subjected to harassment based on her race (Black)2 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. 2 In her affidavit, Complainant also maintained that she was discriminated against because of her sex; however, there is no indication that she sought to amend her complaint to add this basis. 2019000967 2 1. Since 2008, A1 has constantly created tension amongst the staff by speaking negatively to one employee about another and not speaking to a particular staff member whenever he was upset with the person. 2. In 2012, she overheard A1 refer to her as a “cow” while she was pregnant. 3. On April 29, 2015, she was advised of her non-selection for the position of Administrative Officer under announcement number WH-15-JTW-129110.3 4. On June 24, 2015, A1 scolded her for recording into the staff meeting minutes a comment that he made referring to a new hire as a “little Black girl.” 5. Since the incident that occurred on June 24, 2015, A1 no longer has daily meetings with her, and he refuses to speak to or acknowledge her presence. 6. In June 2015, A1 instructed her to provide a list of her responsibilities in order to assign some of the duties to the new Administrative Officer (AO). 7. Around June/July 2015, a Lead Dental Assistant told an employee not to seek assistance from Complainant. 8. In July 2015, A1 assigned 70% of Complainant’s duties, including timekeeping duties, to the AO. 9. She heard that A1 spoke negatively about her to employees in other departments and she believes A1 provided negative referrals to potential managers/supervisors to prevent her and other employees from getting jobs elsewhere. 10. On August 26, 2015, A1 accused her of being rude and treating the new AO badly. Complainant described A1 as someone who spoke negatively to her and others about the employees in the office. According to Complainant, if he was upset with you, he would speak negatively about you. Regarding herself, Complainant stated that he always harassed her over small issues, and that when she made mistakes, it was due to stress and nervousness. A1 stated that Complainant did tell him that she thought he was creating tension among the staff, but never complained that he was speaking negatively to one staff member about another. With respect to Complainant’s claim that A1 stated that she looked like a cow, she indicated that after talking to A1 on the telephone, he failed to completely disconnect, and she overheard him ask his guest if she had seen Complainant lately and then he stated that she “was as big as a cow.” Complainant, who was days away from giving birth to her child, stated that she was very hurt. A1 stated that he never referred to any of his employees or anyone else as a cow that he could “recall.” According to claim 3, Complainant’s non-selection, the record indicates that applications were screened by an independently selected panel. Complainant scored 9th out of 19 candidates, and only the top six were interviewed. A1 prepared the interview questions but did not participate in the initial screening or the interviews. C1, a white female, was recommended. A1 ultimately made his selection based on the recommendation of the panel. 3 Prior to the investigation, the Agency dismissed this allegation as a discrete act of discrimination because Complainant’s July 20, 2015, EEO counselor contact was untimely. 2019000967 3 Complainant did not recall what the rating factors were for the position but felt that she was better qualified because she had been in the Dental Clinic since 2008. When asked why she thought her non-selection was based on her race or sex, Complainant stated that A1 used her as his “personal computer person” and did not want her to go higher. According to Complainant, he used her as a “slave, just do what he needs to keep me low. . ..” According to A1, C1 was the best qualified of the candidates interviewed because of her experience with developing and administering internal reviews in quality and productivity initiatives in her previous department. He also cited her ability to prepare a budget, to prepare Veterans Integrated Service Network alerts,4 and her ability to work independently with HR regarding recruitment, classification, employee relations, and the performance appraisal process. Regarding claim 4, Complainant indicated that during the monthly staff meeting on June 24, 2015, A1 was discussing two new hires. In doing so, he referred to one of the hires as a “little Black girl,” who he thought would work well. Complainant’s responsibility was to type up the monthly minutes and, after they were reviewed by A1, to distribute them. According to Complainant, several people, White and Black, were upset with A1’s comments and came to her to talk about them. Complainant stated that when she typed the minutes, she included the comment that A1 made, highlighted the language in bold font, and sent them to A1 for review. Later, she stated that A1 approached her and was angry and cursing and demanding to know why she inserted the comment. According to Complainant, he ordered her to remove the comment, and waited until she had done so. A1 admitted that he “inappropriately” used the expression, “little Black girl” to refer to a new hire. Normally, according to A1, Complainant took two to three weeks to prepare the minutes after a meeting for his review, but after the June 2015 staff meeting, she prepared the minutes immediately, and put his comment in italics so that it would stand out. He also stated that she posted and released the minutes without his review. A1 stated that he went to Complainant and asked her why she had done this after he realized the minutes were out. Complainant, he stated, indicated that she wanted it to stand out and that a lot of people were surprised. A1 stated that he asked Complainant if she was bothered and that she stated, “no, I know how you are.” A1 stated that he sent out an email apologizing the next day and offered to apologize in person to any one who stopped by his office. A1’s supervisor spoke to him about his comment and directed that he attend an hour of Cultural and Diversity training. Regarding claim 5, Complainant maintained that after June 24, 2015, A1 no longer held daily meetings with her, and refused to speak to or acknowledge her presence. Complainant maintained that he never responded to her emails asking why their morning meetings were canceled. A1 stated that after C1 was hired as the new AO, Complainant was upset with him for a long time and withdrew, which he understood. 4 Veterans’ health care in the United States is separated geographically into 19 regions known as VISNs, or Veterans Integrated Service Networks. 2019000967 4 Also, because Complainant did not want to help C1 get oriented on office operations, he spent his mornings with her introducing her to the Service. A1 stated that he explained this to Complainant. He also denied the assertion that he ignored Complainant. Regarding claims 6 and 8, A1 acknowledged asking Complainant to make a list of her duties and subsequently some of the duties were reassigned to C1. According to Complainant, A1, for about eight years, had her performing multiple duties ranging from secretarial to administrative. She felt that all these responsibilities ruined her health by causing her great stress; however, she felt that she was being discriminated against when A1 removed some of these duties because it would make it difficult for her to get a higher rated position. A1 told her, however, that she was doing too much, and that C1 did not have enough to do. A1 stated that Complainant was very busy and on numerous occasions complained about her workload. Consequently, when C1 came on board, he felt that it was appropriate to give her some of the duties that Complainant had been performing. He asked Complainant to make a list and they went over it and divided the responsibilities. Contrary to Complainant’s assertion that 70% of her duties were removed, A1 stated that there was a total of 49 specific duties on the list, and about 21 remained with Complainant and about 24 went to C1. A1 noted that the Union investigated the division of labor and did not have a concern. With regard to claim 7, Complainant stated that she was approached by an employee who was unsure whether a matter should come to Complainant. The employee was supposedly told by the Lead Dental Assistant to go to C1 not Complainant. Complainant felt that the matter was her responsibility. When asked why she thought discrimination played a role, Complainant stated that A1 was upset because she filed a grievance against him and that it was due to her race and sex. A1 stated that Complainant spoke to him about the matter, and he told her that the situation most likely arose previously when Complainant was not in the office and the assistants went to C1. A1 stated that was the extent of his involvement. With regard to claim 9, According to Complainant, her coworkers, on many occasions, told her that A1 spoke negatively about her. When she asked A1 about it, Complainant stated that he denied these claims. She also maintained that, prior to applying for a Social Work position, she “begged” A1 not to say anything negative about her. According to Complainant, A1 just looked at her and did not say anything in response. A1 denied that he spoke negatively about Complainant. He did acknowledge, however, that if something went wrong in the Service, he might, in a conversation with another department head, point out that there was an oversight on the part of Complainant or any other employee who was involved. He also denied giving her a negative referral and maintained that he gave her a very positive letter for a Patient Advocate position to which she applied. With respect claim 10, on August 26, 2015, Complainant stated that A1 called her into his office and, among other things, accused her of treating C1 badly. 2019000967 5 Complainant acknowledged asking him earlier why he wanted her to help train C1, if he thought that C1 was more qualified than her. A1, she stated, claimed that she was being rude and that it was not right. A1 stated that the incident that prompted his conversation with Complainant was the way she spoke to C1 at a staff meeting. According to A1, he told Complainant that her attitude and behavior could be perceived as being rude and that he did not think that she was a rude person. A1 stated that he told her that he understood that she was upset that she did not get the AO position but that the process was conducted fairly. 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). Complainant timely requested a hearing. The Agency filed a motion for summary judgment on March 24, 2017. Complainant opposed the Agency’s motion. On September 27, 2018, the AJ granted the Agency’s motion, and issued a decision without a hearing. The AJ found, among other things, that Complainant did not identify any material facts in dispute. The AJ also found that, based on the undisputed facts, many of Complainant’s allegations were common workplace instructions and assignments that the Commission has repeatedly held do not rise to the level of discriminatory harassment. The AJ also noted contradictions regarding some of her claims. For example, Complainant maintained that it was harassment to reassign some of her duties to C1, but she maintained that, prior to the reassignment, the workload she had was so heavy that she “carried the position of two people,” and “it ruined [her] health.” Additionally, the AJ noted that other issues amounted to minor disagreements with co-workers or supervisors, and that it was well established that EEO regulations are not a general civility code. Complainant, according to the AJ, presented nothing to establish that any of the events alleged were based on her race. Finally, the AJ, essentially, upheld the Agency’s dismissal of claim 3 as a discrete act of discrimination noting that Complainant learned of her nonselection on April 29, 2015 but did not seek EEO counseling until “July 20, 2018.”5 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. The instant appeal followed. ANALYSIS AND FINDINGS At the outset, we note that although Complainant, in her affidavit, added the basis of sex to her claim of discrimination and harassment, there is no evidence that she requested that the Agency or the AJ amend her complaint to include sex discrimination. 5 This date is a typo in the AJ’s decision because the actual date of EEO counselor contact was July 20, 2015. The dismissal of claim 3 as a discrete act is not contested on appeal, and will not be discussed further in this decision. 2019000967 6 On the contrary, in her opposition to the Agency’s motion, Complainant’s representative wrote, “[a]lso . . . the claims of [discrimination], hostile work environment based on her race has merit [and should be] . . . given the [opportunity] to [be] heard.” Consequently, we will limit our analysis to her claim of discrimination and harassment based on race. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). AJ’s Issuance of a Decision Without a Hearing We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We have carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant, in her opposition, did not attempt to establish either of these requirements. 2019000967 7 Instead, she merely argued that material facts and credibility were in dispute without indicating what they were in this case. We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. We find that the AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment: Claims 6, and 8 To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions were discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established a prima facie case of discrimination based on her race, we find that the Agency articulated, legitimate, non-discriminatory reasons for selecting C1 for the AO position, and for reassigning some of Complainant’s duties as were set forth in detail above. We find that Complainant has not provided any evidence that raises a genuine issue of material fact that her race played any role in these matters. Complainant’s own testimony indicates that the reassignment of some of her duties was beneficial both to herself and the overall operation of the unit. Complainant stated that her health was negatively impacted by all the duties that she had been asked to perform. Complainant’s speculation that the removal of these duties might affect her ability to get promoted does not establish that discrimination was involved here. A1 stated that Complainant was very busy and on numerous occasions complained about her workload. Consequently, when C1 came on board, he felt that it was appropriate to give her some of the duties that Complainant had been performing. 2019000967 8 Employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find no such motivation here. Harassment 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). 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) (Enforcement Guidance). Regarding Complainant’s hostile work environment claim, we find at the outset that under the standards set forth in Harris that Complainant’s claim of a hostile work environment must fail with respect to claims 6 and 8. See Enforcement Guidance. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to claims 1, 2, 3, 4, 5, 7, 9, and 10, we find, like the AJ, that even if these matters occurred as alleged, they do not rise to the level of unlawful harassment. Complainant did not establish that there was a genuine issue of material fact linking her race to any of these matters, nor did she establish that they were sufficiently severe or pervasive enough to have altered the conditions of her employment and create an abusive working environment. With respect to claim 3, we specifically note that Complainant was ranked ninth out of 19 on the list of those screened for the AO position and, therefore, was not referred for an interview. The only explanation Complainant provided for why she thought her race was involved was the fact that A1 needed her in her current position because of her computer skills, which we find does not indicate discriminatory animus. Regarding the remainder of Complainant’s harassment claim, like the AJ, we note 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). For the most part, Complainant maintained that A1’s behavior was directed at all of his employees regardless of their race. 2019000967 9 She stated that the workplace was tension filled for everyone, and that A1 regularly spoke negatively to employees, negatively to employees about other employees, and that he stopped talking to people when he was upset with them.6 Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that Complainant did not establish the existence of a genuine issue of material fact regarding her claim that she was subjected to discrimination and harassment by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order. 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. 6 In reaching the conclusion above, the Commission does not condone the behavior of A1 - especially the comment that he made that is set forth in claim 4 - but we simply find no evidence that Complainant’s race was involved in these matters. 2019000967 10 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 (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 August 4, 2020 Date