Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 21, 2014

0120120753 (E.E.O.C. Mar. 21, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120120753

Hearing No. 451-2011-00043X

Agency No. 200P07562010100433

DECISION
On November 29, 2011, Complainant filed an appeal from the Agency’s November 2, 2011
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. The Commission deems the appeal timely and accepts
it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Case Manager at
the Agency’s El Paso Outpatient Clinic in Texas. Complainant and the Agency reached
settlement agreements in March and May 2009, resolving two of Complainant’s EEO
complaints. Later in 2009, Complainant contacted an EEO Counselor and then filed (and later
amended) a third EEO complaint alleging that the Agency subjected her to retaliation when:

1. From July 25, 2009, to present, management failed to "orient" or provide her with on-
the-job training for the Case Manager position;
2. On October 8, 2009, she was assigned the duties of a Nurse Manager;
3. On February 10, 2010, she became aware that she was not selected for the position of
Nurse Manager; and
4. On April 13, 2010, she was issued a reprimand.

Complainant further alleged she was subjected to retaliatory harassment and identified 37
incidents of adverse treatment, including the above listed discrete acts. The additional
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incidents concerned, inter alia, having to train other employees, being charged AWOL, being
threatened with being “written up,” and with being watched, accused of not following
directions, being spoken to in a disrespectful manner, being questioned and lectured about her
work, and being subjected to an OIG investigation.

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). Complainant timely requested a hearing. The AJ assigned to the
case issued summary judgment in the Agency’s favor.

In her decision, the AJ dismissed many of the claims for procedural defects. She also found
that the Agency articulated legitimate and nondiscriminatory reasons for not training
Complainant, failing to select her for the Nurse Manager position, and issuing her a
reprimand. The AJ found that Complainant failed to prove that the explanations were a pretext
for retaliation. Further, after considering all the incidents alleged as evidence of harassment,
the AJ again concluded that there was no evidence that management’s actions were retaliatory.
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.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect
the outcome of the case.
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 her 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, i.e., in this case, prior protected activity. Only if
Complainant establishes both of those elements, does the question of Agency liability present
itself.

Upon review of the record, we agree with the AJ that Complainant’s claim of harassment fails
because the evidence does not support a finding that the many incidents complained of were
motivated by retaliatory harassment. The Agency provided several legitimate and
nondiscriminatory explanations for its actions, and Complainant failed to refute them. For
example, management explained that Complainant was issued the reprimand because an
investigation revealed several instances where mileage and hourly billing charges were
invoiced and paid without having the necessary Agency authorization for the services rendered,
and Complainant did not dispute that the responsibility for ensuring that the invoices matched
the services requested lay solely with her.
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We conclude that while the record suggests that there was personnel turnover and perhaps a
lack of resources making the Outpatient Clinic a complicated place to work during the time
period about which Complainant complains, there is no basis for finding the Agency liable for
a violation of Title VII. For these reasons, the Agency’s final order is AFFIRMED.

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.
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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

Date
March 21, 2014