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

Equal Employment Opportunity Commission

Sep 12, 2013

0120121215 (E.E.O.C. Sep. 12, 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. 0120121215

Hearing No. 570-2010-00247X

Agency No. 2004-0040-2009101952

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 9, 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’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 Management
Analyst/Emergency Preparedness Coordinator in the Office of Policy and Planning of the
National Cemetery Administration at the Agency’s Central Office in Washington, D.C.
Complainant’s duties included reviewing and approving emergency preparedness plans for
cemeteries in the National Cemetery Administration. In July 2009, Complainant was assigned
to conduct a vulnerability assessment at the Jefferson Barracks National Cemetery in St. Louis,
Missouri. Complainant traveled to St. Louis and began collecting data to prepare a model
assessment. On or about July 20, 2009, Complainant learned that a workgroup was also
working on a similar project. Complainant emailed her first and second-level supervisors (S1
and S2) expressing her dissatisfaction and her belief that her work would be duplicative and
wasteful. S1 discussed the situation with other management officials and they determined that
the two group’s efforts were not duplicative. Complainant was subsequently invited to join the
workgroup.

On or about July 16, 2009, Complainant claimed that she anonymously received a package
containing personal information about herself. Complainant alleged that the packet contained
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allegations by S1 in an attempt to take disciplinary action against her, including that
Complainant had engaged in criminal activity and accused her of being unfit for her position.

On July 2, 2009, Complainant received a Letter of Admonishment as a result of her allegedly
inappropriate email responses to the Director of Field Operations (D1) and other officials.
Among the email responses, Complainant stated that she was “not really in the mood for
foolishness” and “If [D1] thought his comments were reasonable, I would suggest that in the
future, he vet his comments with someone that regularly uses common sense.” Furthermore,
Complainant copied several upper-level management officials in the responses. In addition to
the Letter of Admonishment, S1 placed Complainant on a performance improvement plan
(PIP) for six months in an attempt to address Complainant’s alleged behavior.

Months prior to these events, Complainant alleged that S1 walked into her office and said “you
are an ignorant little spook and one way or another I’m going to get rid you.” There were no
witnesses to this incident; however, Complainant claims that she was on the phone with a co-
worker at the time. Complainant reported the incident to S2 along with accusations that S1 had
changed her performance standards in a “very subjective” manner which would allow S1 her
“stated wish” of getting rid of Complainant.

On June 18, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race/
national origin (African-American), color (Black), and in reprisal for prior protected EEO
activity under when:

1. On or about July 20, 2009, she learned another group was asked to do the
vulnerability assessment at the "Jefferson Barracks" after she traveled to work
on the assignment, and spent two days collecting data;

2. On July 16, 2009, she received an anonymous package that contained personal
information about herself that confirmed her first level supervisor accused her of
criminal activity; informed Human Resources she was unfit for her position;
and, attempted to have disciplinary action taken against her;

3. On July 2, 2009, she received a Letter of Admonishment;

4. On July 2, 2009, she was placed on a Performance Improvement Plan (PIP);

5. On February 27, 2009, S1 walked into her office and stated “you are an
ignorant little spook and one way or another I'm getting rid of you;”

6. On February 20, 2009, management set her performance standards too high for
her position, which will make it difficult for her to exceed the performance
requirements; and

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7. Beginning in or about February 2008 and ongoing, management interfered with
her ability to perform her job duties; created a hostile work environment and
failed to take action to address her allegations of harassment.1

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
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 1, 2011.

In the decision, the AJ initially determined that the substance of Complainant's allegations
concerned personnel actions, changes in job responsibilities, or changes in workplace policies
and procedures. Complainant presented no evidence that matters related to the Jefferson
Barracks assignment, the Letter of Admonishment, the PIP, or her performance standards were
objectively offensive, abusive or hostile, and otherwise taken in order to harass her. The AJ
found that the record supported management's arguments that Complainant was a difficult
employee and none of the resulting actions were caused by any discriminatory or retaliatory
animus. Regarding her new performance standards, the record clearly supported the Agency's
explanation that the same language was added to all five employees under the supervision of
S1.

As to the package containing personal information, the AJ found that there was no explanation
in the record as to how or why Complainant received it. In any event, the reason the
information was assembled in the first place was for S1 to get assistance and advice from the
Agency’s Human Resources Office concerning the conduct of one of her employees, which
was not improper.

Finally, as to the “ignorant little spook” comment, S1 flatly denied making the comment to
which Complainant responded by calling S1 a liar. Viewing the evidence in the light most
favorable to Complainant, the AJ determined that the remark, even if made, was an isolated
utterance. The AJ found that Complainant and S1 clearly did not get along; however,
considering all of the alleged incidents collectively, the alleged conduct was not sufficiently
severe or pervasive to establish a hostile work environment. As a result, the AJ held that
Complainant had not been discriminated against or subjected to a hostile work environment as
alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant
appeal followed.

1Complainant raised three additional claims regarding denial of awards and a performance
appraisal. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) as
untimely. Complainant raised no challenges to the dismissal before the Administrative Judge
or on appeal; therefore, the Commission will not address the dismissed claims in this decision.
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CONTENTIONS ON APPEAL

On appeal, Complainant argues that the record was not adequately developed and summary
judgment was not appropriate. Complainant contends that management unreasonably
interfered with her ability to perform her duties, altered the terms and conditions her
employment, and failed to take any action to address her complaints of harassment. Further,
Complainant alleges that the anonymous package she received contained false and derogatory
personal information about her and violated the Privacy Act. Complainant contends that the
Agency’s reasons for its actions are pretext for discrimination and reprisal. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The AJ's Issuance of 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.

Despite Complainant's contentions to the contrary, the Commission determines that the record
was adequately developed and there are no genuine issues of material fact or any credibility
issues which required a hearing. 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
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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, she was continuously subjected
to a hostile work environment. Complainant has cited several incidents where Agency
management took actions that seemed adverse or disruptive to her including, management
interference in her work performance; higher performance standards; receiving an anonymous
package with derogatory personal information; receiving a Letter of Admonishment; and,
being placed on a PIP. The Commission finds that Complainant has failed to show that she
was subjected to discriminatory or retaliatory hostile work environment.

Specifically, as to her claim regarding the Jefferson Barracks assessment, S1 affirmed that
assigning Complainant to perform a vulnerability assessment while another workgroup was
working on a similar project was not a duplication of effort. ROI, Ex. B-5, at 9-10.
Complainant’s work was more immediate while the other workgroup’s project was viewed as
more long-term. ROI, Ex. B-6, at 11. Both assignments were complementary and
Complainant was added to the other workgroup to ensure consistency at the department level
and Agency-wide. Id. at 10-11.

With respect to the anonymous package, S1 explained that she compiled a conduct-related
package regarding Complainant seeking advice from Human Resources in November 2008.
ROI, Ex. B-5, at 11-12. S1 noted that her desk drawer had been vandalized and the package
was stolen. Id. at 12. S1 asserted that she never accused Complainant of criminal activity in
the package; rather, the documentation described conduct which S1 believed compromised the
Agency’s readiness and ability to respond to emergencies. Id. at 15-16.2

2To the extent that Complainant alleges that the Agency violated the Privacy Act or the
Freedom of Information Act, the Commission does not have jurisdiction over these matters.

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As to the Letter of Admonishment and PIP, S1 affirmed that she issued the Letter of
Admonishment based on a pattern of disrespectful and improper communication with D1 and
members of senior leadership. ROI, Ex. B-5, at 16. S2 added that the tone and content of the
email to D1 and other management officials was unacceptable and inappropriate. ROI, Ex. B-
6, at 16-17. S1 placed Complainant on a PIP because of her ongoing difficulties with D1 and
others within and outside the organization. Id. at 17. S1 did not feel that Complainant was
meeting the customer service standard satisfactorily and the PIP recommended training in
customer service issues, personal effectiveness, and other similar topics. Id. Finally,
regarding her performance standards, S1 maintained that she re-worked every employee’s
performance plans and Complainant’s standards were almost identical to those of her other
employees. Id. at 18-19. S1 noted that the only differences in the standards were in specific
job responsibilities and that Human Resources had approved the standards. Id. at 19.

In addition, Complainant alleged that management interfered with her ability to perform her
job duties and failed to take action to address her harassment allegations. S1 stated that she
simply wanted to be informed of her employees’ assignments and that Complainant believed
that she micromanaged. ROI, Ex. B-5, at 22. Further, S1 noted that Complainant and the D1
had difficulties in their relationship, but it was Complainant who had difficulty communicating
in a respectful manner. Id. at 22-23.

Finally, regarding S1’s alleged offensive remark in February 2009, there is no doubt that the
use of the term “spook” to refer to an African-American is an offensive racial slur. The
Commission notes that the record indicates S2 investigated the allegation, but could not
substantiate Complainant’s claim. Assuming that it did occur, it was an isolated incident,
occurring on one day. Therefore, construing the evidence in the light most favorable to
Complainant, Complainant's hostile work environment claim fails to rise to the level of
objectively unreasonable behavior that would trigger a violation of Title VII. Additionally, 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 no basis to disturb the
AJ's summary judgment decision finding that Complainant was not 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.
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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.

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
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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 12, 2013
Date