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

Equal Employment Opportunity Commission

Mar 26, 2013

0120121492 (E.E.O.C. Mar. 26, 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. 0120121492

Hearing No. 490-2011-00064X

Agency No. 2003-0564-2010103241

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 28, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. 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 Human Resources
(HR) Specialist in the Human Resource Management Services at the Veterans Healthcare
System of the Ozarks in Fayetteville, Arkansas. On July 2, 2010, Complainant filed a formal
complaint alleging that the Agency discriminated against her and subjected her to a hostile
work environment on the bases of sex (female), age (61), and in reprisal for prior protected
EEO activity as evidenced by multiple incidents including, inter alia, her supervisor (S1) added
extra duties to her workload; her work was reviewed by a Contract HR Specialist and S1
ordered her to make multiple changes; S1 belittled and verbally abused her; she worked
without taking any breaks on one occasion; S1 told her to complete a task that she was not able
to complete; and she was issued a reprimand for loaning money to another employee and
failing to follow instructions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
0120121492

2
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ granted the
Agency’s motion for summary judgment and issued a decision on December 19, 2011.

In his decision, the AJ initially determined that Complainant had not established a prima facie
case of discrimination or a hostile work environment. Specifically, the AJ found that
Complainant had not shown that similarly situated employees outside of her protected classes
were treated more favorably. As to her claim regarding additional duties, an HR Specialist left
the Agency, and her duties were distributed among the rest of the staff. As part of this
redistribution, S1 assigned Complainant duties related to the Environment Management
Service. S1 assigned additional duties to other employees’ workload as well.

Regarding the review of her work, in January 2010, S1 noticed errors in Complainant’s work.
In addition, the Agency had many new employees at the time; therefore, S1 informed the
entire staff that she and the Contract HR Specialist would be reviewing their work more
closely to ensure consistency. As to her claim that S1 made her make multiple changes to her
work in May 2010, the AJ found that the evidence showed that S1 treated all employees in the
same manner. Further, S1 denied yelling or belittling Complainant.

With respect to Complainant’s claim that she was required to work without taking a break or
lunch, the AJ found that the record showed that it was the responsibility of employees to
ensure that they took breaks. Further, S1 affirmed that Complainant never told her that she
was unable to take a break. As to her claim that S1 assigned her a task that she could not
complete because she was not a subject matter expert, S1 stated that Complainant only had to
sign a form as a technical advisor and a subject matter expert could have reviewed the work.
Finally, as to the reprimand, the AJ determined that the male co-worker to whom the money
was loaned was issued a reprimand as well.

The AJ concluded that Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. Further, the AJ found that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ
held that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends the AJ erred as there are material facts still in dispute
warranting a hearing. Further, Complainant argues that she was an exceptional employee until
she refused to lie for S1. Complainant alleges that S1 harassed her and no one would take
action against her. Finally, Complainant contends that she was subjected to a hostile work
environment and her health was affected by S1’s abuse.

0120121492

3
ANALYSIS AND FINDINGS

AJ's Issuance of Summary Judgment

The Commission must first determine whether it was appropriate for the AJ to have granted
summary judgment. The Commission's regulations allow an AJ to grant summary judgment
when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party's favor. Id. at 255. 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.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that Complainant failed to
show that there was a genuine issue of material fact in this case, and even assuming all facts in
her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the
Commission finds that the AJ's grant of summary judgment was appropriate.

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
0120121492

4
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his 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 statutorily protected classes, management
continuously subjected her to a hostile work environment. Complainant alleged 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 or retaliatory animus. More specifically, as to the additional
Environment Management Service duties added to her workload, S1 affirmed that when the
Agency lost staff, she distributed their duties to the remaining staff. ROI, at 182-83.
Complainant had one of the smallest workloads at the time and was assigned the Environment
Management Service duties. Id. at 184. S1 noted that by comparison, other HR Specialists
had much larger workloads than Complainant. Id. at 185.

Regarding her work being reviewed, S1 confirmed that she noticed errors in Complainant’s
work and she felt that Complainant could not perform the full potential of her job without
problems. ROI, at 164. In addition, the Agency had a number of new employees at the time.
As a result, S1 informed the entire staff that she and the Contract HR Specialist would be
reviewing everyone’s work more closely to ensure consistency. Id. at 193. Complainant was
asked to make multiple changes to an assignment because it contained errors. Ultimately, the
Assistant Chief fixed the errors so that the Agency could get the action processed. Id. at 199-
201. S1 denied that she belittled or yelled at Complainant.

Regarding working without a break, S1 maintained that it is the employee’s responsibility to
take a break in the morning, a 30-minute lunch break, and a break in the afternoon. ROI, at
182. S1 noted that Complainant never informed her that she was unable to take lunches or
breaks. Id. As to the assignment Complainant claimed she was unable to complete, S1
affirmed that the assignment was within Complainant’s duties and she only needed to sign the
form as a technical advisor. Id. at 215. Finally, Complainant was issued a reprimand after
she twice loaned a co-worker money in violation of Agency policy. Further, the reprimand
noted that Complainant failed to follow management’s instructions to not discuss the matter
with her co-workers. The co-worker who borrowed the money was reprimanded as well.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
she has not shown that any of the Agency's actions were based on discriminatory or retaliatory
animus. While S1 and Complainant may have had a contentious work relationship, the
Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
0120121492

5
objectively offensive as to alter the conditions of the victim's employment.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Further, to the extent that
Complainant is alleging disparate treatment with respect to her claims, the Commission finds
that she has not shown that the Agency's reasons for its actions were a pretext for
discrimination or reprisal. 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 Agency's final order, because the Administrative Judge’s grant of summary judgment was
appropriate, and a preponderance of the record evidence does not establish that discrimination
occurred.

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 (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
0120121492

6
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 26, 2013
Date