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

Equal Employment Opportunity Commission

Feb 7, 2013

0120111428 (E.E.O.C. Feb. 7, 2013)

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. 0120111428

Hearing No. 450-2009-00357X

Agency No. 2003-0549-2009100649

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 14, 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Record
Technician/Release of Information Clerk at the Agency’s North Texas Healthcare System in
Dallas, Texas. Complainant received her annual performance appraisal in October 2008.
Complainant’s supervisor (S1) rated Complainant as “Fully Successful.” Complainant
disagreed with the rating and discussed it with her second-level supervisor (S2). S2 agreed to
change the rating to “Excellent.” The appraisal was recreated, but the work standards
elements were slightly changed. Nonetheless, Complainant received the highest possible rating
on the elements and an overall rating of “Excellent.”

In November 2008, Complainant was out on leave for several days. Complainant’s co-worker
(CW1) covered Complainant’s absence. When she returned, she discovered that CW1 had
rearranged her desk, destroyed some of her personal items, and failed to perform the assigned
duties. Complainant complained to management, and CW1 was ultimately disciplined.

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In September 2008, Complainant submitted a request for annual leave for December 29, 2008
through January 2, 2009. S1 denied the request around December 1, 2008. Complainant had
approximately 14 hours of use-or-lose leave for the 2008 leave year and had her annual leave
request been granted, she would not lose the leave. During a staff meeting, S1 and S2
informed employees that if they had use-or-lose leave requests denied, they should resubmit the
leave requests. Complainant resubmitted her request on December 18, 2008; however, she
withdrew the request on December 22, 2008, without any explanation. Complainant called in
sick on December 29, 2008 through January 2, 2009. S1 called Complainant and left a
message that if she did not bring in medical documentation, she would be charged as absent
without leave (AWOL). On January 5, 2009, Complainant came into the office and filled out a
request for sick leave. Complainant claimed that she submitted medical documentation, but
there is no evidence that management received it. Nonetheless, S1 instructed the timekeeper
to enter Complainant’s leave for December 29 through January 2 as annual leave.

On January 20, 2009, Complainant discovered that her leave had been entered as annual leave
rather than sick leave. Complainant requested that her leave be changed to sick leave;
however, it was never changed. In addition, Complainant learned that her annual leave
requests for February, May, July, September, October, November, and December 2009, had
been denied due to staffing.

On February 12, 2009, Complainant became upset with her supervisors and decided that she
needed to leave for the day. Complainant called the Agency’s EEO Officer and indicated that
she believed she was being subjected to a hostile work environment. Complainant stated that
the EEO Officer told her that she could leave for the day and that the EEO Officer would get
permission from her supervisors. Complainant left without permission, but was not charged
AWOL. S1 placed a note in Complainant’s personnel file stating that Complainant left without
a permission and if she did so again, she could be charged AWOL.

On May 29, 2009, S1 closed the door to Complainant’s office and put up a sign on the inside
of the door facing Complainant indicating that the door should remain closed. S1 did this
based on concerns for patients’ privacy when discussing medical issues. Complainant
explained to S2 that she has Post-Traumatic Stress Disorder (PTSD) and she needed the door
to stay open. S2 immediately instructed S1 to allow Complainant to leave the door open.

On February 25, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of sex (female), disability, and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, her co-worker
was allowed to mistreat her work area and not perform his duties; her annual leave requests
were denied; her sick leave was incorrectly entered; and she received a performance appraisal
rating with which she disagreed.

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
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Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on September 7 and October 18, 2010, and issued a decision on November 10, 2010. 1

In his decision, the AJ determined that Complainant’s testimony regarding her claims was
unreliable and inconsistent. The AJ found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to the initial requests for annual
leave for 2009, the AJ found that it was not unusual for an Agency to be unwilling to grant
annual leave months in advance without knowing what the staffing situation will be.

Complainant’s leave request in December 2008 was denied due to staffing. S1 instructed all
employees with use-or-lose leave to resubmit their requests. Complainant resubmitted her
request, but later withdrew her request. Complainant did not report on December 29, 2008
through January 2, 2009, and requested sick leave. The AJ found that Complainant’s
testimony regarding why she needed to take sick leave coincidentally for the same period of
time as her previously denied annual leave to be wholly contradictory. The AJ determined that
S1 decided that Complainant had not submitted satisfactory medical documentation for her
absence and could either charge Complainant AWOL or use her annual leave. As a result, S1
decided to reverse the Agency’s previous denial and charge Complainant annual leave. Even
assuming that Complainant was entitled to the sick leave, the AJ found that Complainant would
not be eligible for reinstatement of the use-or-lose leave based on her failure to resubmit the
annual leave request. Further, employees had to show that they diligently attempted to
legitimately use their annual leave before the end of the year and a single request and denial
did not meet that requirement.

Regarding CW1’s mistreatment of Complainant’s belongings and failure to perform his backup
duties satisfactorily, the AJ found that the Agency disciplined CW1. Further, S2 attempted to
separate them by only requiring CW1 to fill in for Complainant for longer absences and not
short leave periods or breaks. CW1 was not given preferential treatment because being
Complainant’s backup was a collateral duty for him and he had different duties and
assignments.

In regard to the February 12, 2009 incident, the EEO Officer testified that she did not give
Complainant permission to leave early. Instead, the EEO Officer testified that she told
Complainant that if she left without getting supervisory permission, then she could be charged
AWOL. S1 ultimately did not charge Complainant with AWOL, but put a note about the
incident in Complainant’s file.

Regarding the door to her office, S2 testified that the door was initially closed due to privacy
concerns. When Complainant explained the situation to him, S2 corrected the problem and
instructed S1 to allow Complainant to keep the door open. The door was ultimately shut for
less than a day.

1 S1 provided an affidavit during the investigation, but passed away prior to the hearing.
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The AJ concluded that Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. Further, Complainant failed to show that the Agency’s
reasons for its actions were pretextual. As a result, the AJ held that Complainant had not
established that she was subjected to discrimination. The Agency subsequently issued a final
order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ was biased against her and prevented her proving
her case at the hearing. Further, Complainant argues that it was a coincidence that she got sick
during the same time period of her original leave request in December 2008. In addition,
Complainant contends that S1 had no reason to charge her annual leave during her absence and
she requested that it be changed to sick leave. Complainant argues that she should have been
informed of what discipline was issued against CW1 and reiterates that he is allowed to do less
work than she does. Accordingly, Complainant requests that the Commission reverse the final
order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

As an initial matter, the Commission shall address Complainant's contentions that the AJ
exhibited bias against her and failed to act impartially. The Commission notes that EEOC
regulations and Commission precedent provide AJs with broad discretion in the conduct of a
hearing. See 29 C.F.R. § 1614.109; see also EEO MD-110, at 9-10. The Commission has
reviewed the hearing transcript as well as other documentary evidence in the record and is
unable to find evidence of bias, or other reversible error, resulting from the manner in which
the AJ managed and adjudicated this case.

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ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

To establish a claim of 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. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance at 6.

Here, Complainant asserted that based on her protected classes, management and her co-
worker continuously subjected her to several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that Complainant has not
shown that she was subjected to conduct sufficiently severe or pervasive to rise to the level of a
hostile work environment. In addition, the Commission finds that Complainant failed to show
that these incidents were unlawfully motivated by discriminatory animus. More specifically,
the record reveals that Complainant’s October 2008 leave requests for future months were
denied with instructions to resubmit later to allow S1 to assess the staffing needs at the time the
leave was needed.

As to her leave request for December 29, 2008 through January 2, 2009, the request was
initially denied due to staffing needs. Complainant was encouraged to resubmit her request
since she would be in use-or-lose status. Complainant subsequently resubmitted her leave
request, but later withdrew it without explanation. Complainant did not report for work and
requested sick leave for the same period of time. Complainant failed to present sufficient
medical evidence in support of her absence and request for sick leave. Rather than charge
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Complainant AWOL, S1 decided to reverse the previous denial and charge the leave as annual
leave. Complainant later requested that the leave be changed to sick leave, but she produced
no evidence at the hearing that she ever submitted the requested medical documentation.

As to her appraisal, S1 initially rated Complainant as “Fully Successful;” however,
Complainant ultimately received an “Excellent” rating after discussing the issue with S2.
Regarding the February 12, 2009 incident, the EEO Officer testified that she told Complainant
that she would speak to her supervisors about her concerns, but did not give her permission to
leave early. S1 did not charge Complainant AWOL for leaving early without notifying
management, but included a note about the incident in Complainant’s file.

As to Complainant’s door, S1 initially closed it and put up a sign stating it should remain
closed based on patient privacy concerns. Complainant complained to S2 and that same day,
S2 remedied the problem and instructed S1 to allow her to leave the door open. Finally, in
regard to Complainant’s complaints about CW1, S2 testified that CW1 was counseled about
performing his duties and reprimanded for his unprofessional conduct. Further, from that
point on, when CW1 needed to back up Complainant, someone ensured that Complainant’s
personal items were removed from her desk.

The Commission finds that Complainant has not shown that any of the Agency’s actions were
based on discriminatory or retaliatory animus. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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.

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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 (Nov. 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
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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

February 7, 2013
Date