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

Equal Employment Opportunity Commission

Sep 4, 2013

0120113849 (E.E.O.C. Sep. 4, 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. 0120113849

Hearing No. 430-2010-00326X

Agency No. 2004-0785-2009104338

DECISION

On August 11, 2011, Complainant filed an appeal from the Agency’s July 29, 2011, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Operations
Clerk, GS-6, at the Agency’s work facility in Durham, North Carolina. On November 19,
2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her sex (female) and age (60) when:

1. On July 27, 2009, her Supervisor removed the authorities he had given her, stating
that only three managers were allowed to make refunds and process overrides.

2. On October 15, 2009, Complainant was informed that she was being terminated
during her probationary period, effective October 29, 2009, due to her excessive
absenteeism, inappropriate behavior towards her Supervisor and for being Absent
Without Leave (AWOL).

3. Complainant was harassed from July 13, 2009 – October 29, 2009, as evidenced by
the following 21 incidents.
0120113849

2

(a) On July 13, 2009, Complainant’s Supervisor, the Chief, Canteen Service,
commented to Complainant, “Wow, you’re old, as old as my mother.”

(b) On July 14, 2009, the Chief made rude and belligerent comments, speaking in a
dismissive tone and screaming or cursing at Complainant.

(c) On July 20, 2009, the Chief commented in an arrogant manner, “I’m right and
everyone else is wrong.”

(d) On July 20, 2009, the Chief commented to Complainant, “You look funny in
those shoes.”

(e) On July 22, 2009, the Chief stated to Complainant, “My bad mood has nothing
to do with you.”

(f) On July 23, 2009, the Chief remarked to Complainant, “I can do your job in
three minutes, what takes you so long?”

(g) On July 23, 2009, the Chief continuously walked through Complainant’s work
area making loud comments and behaving rudely, commenting “I hired you for
your personality, not your skills, and I am sick and tired of your aggressive
behavior. You walk around here like you are the Chief or Assistant Chief and I
am going to have the Assistant Chief in here tomorrow and we will address your
performance plan.”

(h) On July 24, the Chief excluded Complainant from certain events and failed to
introduce her to the National Director.

(i) On July 24, the Chief loudly commented, “You have issues” and walked away.

(j) On July 27, 2009, following comments made by Complainant, the Chief
commented, “Pay no attention to her, she was a teacher.”

(k) On July 27, 2009, the Chief removed authorities he had given Complainant
stating that only three managers were allowed to make refunds and process
overrides.

(l) On July 27, 2009, the Chief refused to issue Complainant a key in order to
facilitate her assigned responsibilities.

(m) On August 12, 2009, Complainant was verbally reprimanded in the presence of
other employees, when the Chief told her not to interrupt him while he was
talking to another employee.
0120113849

3

(n) During Complainant’s tenure, the Chief made several comments regarding
Complainant’s age, education and her clothing in the presence of other
employees.

(o) On October 15, 2009, Complainant was informed that she was being terminated
due to excessive absenteeism, inappropriate behavior towards the Chief and for
being AWOL, effective October 29, 2009.

(p) During Complainant’s tenure, the Chief accused Complainant in front of others
of making errors.

(q) During Complainant’s tenure, the Chief made comments stating, “I am in a bad
mood, I haven’t gotten any lately and referred to himself as a stud stating “My
wife is thirteen years older than I am.”

(r) During Complainant’s tenure, the Chief created unrealistic demands
commenting, “That’s already been done. I was here at 8:30 this morning.”

(s) During Complainant’s tenure, the Chief made several comments discounting
Complainant’s efforts and lacked empathy saying, “What do I care if you are
sick?”

(t) During Complainant’s tenure, the Chief made several comments regarding firing
a male employee for filing an EEO complaint against him.

(u) During Complainant’s tenure, the Chief refused to look at her commenting, “I
am doing this on purpose because you always have something to say, as women
often do.”

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 but subsequently withdrew
her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The Agency stated as to the harassment claim that Complainant did
not provide any persuasive evidence corroborating the alleged age-based and gender-based
comments to or about her. The Agency noted that the Chief denied yelling or cursing at
Complainant, and denied making adverse comments to her or about her age, gender and
appearance. The Agency determined that Complainant failed to show that the alleged
harassment was sufficiently severe or pervasive.

0120113849

4
With regard to claim (1), the Agency observed that the Chief stated even though Complainant
was trained for two months, he was not confident that Complainant was able to make
appropriate refund and override decisions, and thus he removed her authority to perform these
duties. The Agency noted that the Chief informed Complainant that only three managers (ages
60, 50-55 and 28) were allowed to make refunds and override decisions.

In terms of claim (2), the Chief stated that Complainant was terminated during her
probationary period because she was unable to get the deposit correct in two months, she had
an absenteeism problem, she was AWOL and failed to call in and she engaged in inappropriate
behavior by following him into an office and slamming the door behind them. According to
the Agency, management provided time and leave documentation indicating that Complainant
was tardy, left work early, was absent for the entire day or was AWOL on 33 work days
during the July-October 2009 period. The Agency determined that it articulated legitimate,
nondiscriminatory reasons for its actions. With regard to Complainant’s attempt to establish
pretext, the Agency determined that Complainant did not provide evidence that management
officials acted with a discriminatory intent based on her age or sex. Thereafter, Complainant
filed the instant appeal.

ANALYSIS AND FINDINGS

With regard to claims (1) and (2), we shall assume arguendo that Complainant established a
prima facie case of sex and age discrimination. The Agency explained as to claim (1) that
Complainant’s authority to issue refunds and process overrides was removed based on her
inability to perform the job. The Chief explained that Complainant’s Operations Clerk position
mostly involved counting money and putting together sales reports. The Chief stated that
despite being trained to do the deposit, Complainant was unable to get the deposit correct in
two months. According to the Chief, Complainant was responsible for placing the sales
numbers in the Automatic Sales Reporting system, but it was incorrect almost every day. The
Chief stated that he was not confident about Complainant’s ability to issue refunds. We find
that the Agency articulated legitimate, nondiscriminatory reasons for the removal of
Complainant’s authority to issue refunds and process overrides. Upon review of the record,
we find that Complainant has not presented persuasive argument or evidence to establish that
the Agency’s explanation was pretext intended to mask discriminatory intent.

With respect to claim (2), the Notice of Termination stated that Complainant was terminated
during her probationary period based on excessive absenteeism, for being AWOL and
inappropriate behavior toward the Chief. In addition, the Chief and the Regional Manager
cited Complainant’s performance deficiencies as another reason for her termination.
According to the Chief, the inappropriate behavior involved Complainant following him into
the office and slamming the door behind them. In terms of Complainant’s attendance, the
Chief stated that Complainant was charged AWOL for August 14, 2009, August 31 –
September 4, 2009, September 7, 2009 – September 11, 2009, September 14, 2009 –
September 18, 2009, and September 21, 2009 – September 25, 2009. The Chief stated that
Complainant did not request leave through him and she did not call in on any of the days that
0120113849

5
she was charged AWOL. We find that the Agency articulated legitimate, nondiscriminatory
reasons for Complainant’s termination.

Complainant contended that her absences were due to medical reasons and that she submitted a
three-day absence slip from her physician, and subsequently an eleven-week absence slip from
her psychiatrist to the Human Resources Office in Durham. Complainant stated that she never
received a response from Human Resources. The Human Resources Chief at the Agency’s
Durham location stated that she referred Complainant to the Canteen Service Human Resources
Office in St. Louis since the Canteen Service was not part of the Hospital. There is no
evidence that Complainant contacted the Human Resources Office in St. Louis. We conclude
that Complainant did not pursue sick leave properly and did not have reasonable grounds to
believe that her leave request had been approved. Further, Complainant does not dispute that
she engaged in an argument with the Chief when the door slamming allegedly occurred. We
find that Complainant has not established that the Agency’s stated reasons for her termination
were pretext intended to hide discriminatory intent.

To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or 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 the Complainant’s statutorily protected class; and (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, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe and 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 (Mar. 8, 1994).

As for the claim of harassment set forth in claim (3), it is evident that Complainant and the
Chief had a significant amount of friction in their relationship. However, Complainant offers
no corroborating evidence to establish that the incidents denied by the Chief actually occurred.
Further, several of the alleged incidents were not specifically directed at Complainant. Many
of the alleged incidents concern remarks that while certainly not complimentary, nevertheless
were not particularly derogatory. In light of there being no evidence to substantiate
Complainant’s claims as to the harsher comments, we find that Complainant has not
established that harassment based on her sex or age occurred.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

0120113849

6

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.

0120113849

7
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

September 4, 2013
Date