Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120110471 (E.E.O.C. Jun. 20, 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
(Veterans Health Administration),
Agency.

Appeal No. 0120110471

Hearing No. 450-2010-00020X

Agency No. 200305042009101118

DECISION

On October 20, 2010, Complainant filed an appeal from the Agency’s September 15, 2010
final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it 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 Telephone
Operator at the Agency’s Healthcare System in Amarillo, Texas. On April 24, 2009,
Complainant filed (and subsequently amended) an EEO complaint alleging that the Agency
discriminated against her on the bases of age and in reprisal for prior protected EEO activity
when:

1. On November 21, 2008, her request for advanced sick leave and/or leave without pay
was denied;

2. On December 9, 2008, she learned she was not selected for the position of Program
Support Assistant, GS-303-6, Vacancy Announcement No. MPA 2009-03;

3. On December 10, 2008, she was denied permission to attend Learning Management
System training;
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4. On January 6, 2009, she was denied permission to attend Learning Management System
training;

5. On February 9, 2009, she learned that she was not selected for the position of Patient
Service Assistant (Call Center), GS-303-5, Vacancy Announcement No. MPA 2009-
24A;

6. On February 11, 2009, management again denied her request to attend Learning
Management System training;

7. In February 2009 she learned she had not been paid for working a holiday on January
19, 2009;

8. On or about March 5, 2009, management denied her request for leave without pay;

9. On May 18, 2009, management issued her a proposed three-day suspension that was
sustained on June 17, 2009;

10. On June 24, 2009, she received notice that she was not selected for the position of
Program Specialist (Education Service), GS-301-9, Vacancy Announcement No. MPA
2009-57;

In addition to the incidents set forth above, Complainant alleged she was subjected to a hostile
work environment as a result of the following:

a. On June 19, 2008, management denied Complainant's request to attend
Learning Management System training;

b. Since June 24, 2008, and ongoing, management failed to modify Complainant’s
tour of duty from 11:30 a.m. to 8:00 p.m. to 11:00 a.m. to 8:00 p.m. so that
she could take an extended 60-minute lunch;

c. On July 25, 2008, management barged into Complainant's office in an attempt
to catch her watching television during duty hours;

d. On September 8, 2008, management denied Complainant's request to attend
Learning Management System training;

e. On October 9, 2008, Complainant learned that management canceled and/or
decided not to fill vacancy announcement MPA 2008-102, Program Support
Assistant, GS-303-7, which was subsequently announced at a lower grade;

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f. Since October 15 or 16, 2008, and ongoing, management directed Complainant
to replace her VA badge and pick up work supplies and office mail during her
15-minute break;

g. Between October 17, 2008 and January 2009, management failed to take
appropriate action when someone allegedly broke, damaged, or destroyed
several personal items from Complainant’s desk;

h. On February 10, 11, 13 and 17, 2009, and March 3, 5 and 20, 2009,
management directed Complainant to remove boxes, magazines and other
personal items from her office area or have the items disposed of, directed her
not to water the plants in the common area of the facility, and falsely accused
her of reading magazines while on duty;

i. On January 26, February 10, April 2 and 3, 2009, management refused to allow
Complainant to use the restroom when she needed;

j. On or about April 3, 2009, management failed to take appropriate action when
Complainant informed her that someone had installed an icon on a computer of
an "infected male penis." Also on this date, management informed Complainant
that her CD drive had been disconnected and that her computer was being
investigated. Complainant had also previously informed management that
someone had removed all of her icons from her computer;

k. From September 2008 to the present, management failed to approve
Complainant's requested leave in a timely fashion and also scheduled her to
work most holidays; and

l. Complainant learned that management had failed to remove a letter of
counseling and/or instruction from her personnel file even after several requests.

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, and the AJ held a hearing
on May 6, 2010, and issued a decision on September 7, 2010. 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.

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. National Labor Relations Board, 340 U.S. 474, 477 (1951)
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(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 EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

Disparate Treatment Discrimination
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters. 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).

Nonselections

The Agency explained that, in the case of each of the allegedly discriminatory nonselections,
the person selected was better qualified than was Complainant. For example, with respect to
Program Support Assistant, GS-303-6, Vacancy Announcement MPA 2009-03, ROI at 326,
the interviewing official testified that the selectee was better qualified for the position than
Complainant because the selectee was an Iraq War Veteran, who had “good rapport with our
volunteers” and was “very much into customer service. HT at 219. In contrast, Complainant
had “problems with her and her supervisors” and might have “personality problems.” HT at
221. These were legitimate, nondiscriminatory reasons for the Agency’s actions. Complainant
was unable to demonstrate that any of the agency’s contentions with respect to the selectees
were incorrect. When asked, for example, whether she was aware of qualifications of the
selectee for Program Support Assistant position Complainant responded “No ma’am, I am
not.” ROI Exhibit B-1 at 191.

There was similar evidence with respect to the other allegedly discriminatory nonselections. In
each case the Agency explained its reasons for not selecting Complainant to satisfy its burden
under McDonnell Douglas. In no case did Complainant adduce evidence that the Agency’s
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reasons for not selecting Complainant were a pretext designed to conceal discriminatory
animus.

Denial of Leave

Complainant contends that requests for advance sick leave and leave without pay were denied
and that she was denied holiday pay. At the hearing, a supervisor familiar with the situation
testified that she never failed to approve the Complainant's leave requests in a timely fashion
and that despite a payroll error, Complainant was ultimately paid for the holiday in question.
(HT at 73). Complainant adduced no persuasive evidence contradicting the Agency’s
evidence.

Discipline

The Agency explained that Complainant was subjected to a 3-day suspension because of
several infractions she committed in connection with her duties. First, she was found to have
used her computer equipment for storage of inappropriate digital files, including audio files in
violation of Agency policy. HT at 77. Second, Complainant was found to have violated an
Agency rule against posting passwords in an area close to a computer that could be accessed
with the password. HT at 53. Finally, Complainant failed to comply with instructions to
remove a large number of personal magazines she kept in her work area. HT at 79. These are
legitimate, nondiscriminatory reasons for the Agency’s actions. In her formal response to the
proposed discipline, Complainant admitted that these infractions occurred. HT at 204.1

Harassment - Hostile Workplace Discrimination

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 Complainant's 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, age or prior protected
activity. Only if Complainant establishes both of those elements, does the question of Agency
liability present itself.

Complainant adduced no evidence that the allegedly harassing actions of which she complains
were motivated by discriminatory animus. Nothing in the circumstances surrounding those
actions suggests that they were undertaken because of Complainant’s age or because of her
prior protected activity. The AJ found that “[m]ost of the supervisors and selecting officials
involved are of the same approximate age as the Complainant. Most were unaware that she
had participated in EEO activity.” AJ Decision at 17. That finding is supported by substantial

1 To the extent the complaint raised additional allegations of disparate treatment discrimination,
we note that the AJ’s finding that these claims were not proven, is supported by substantial
evidence in the record.
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record evidence. Accordingly, the AJ correctly concluded that Complainant had failed to
prove that she had been subjected to hostile workplace harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s finding that Complainant failed to prove that she
had been discriminated against.

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
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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

June 20, 2013
Date