Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 19, 2015

0120123402 (E.E.O.C. Mar. 19, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120123402

Hearing No. 430-2012-00080X

Agency No. 2004-0659-2011103474

DECISION
On September 5, 2012, Complainant filed an appeal from the Agency’s August 11, 2012, 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 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
Complainant worked as a Phlebotomist at the Agency’s Outpatient Clinic in Charlotte, North
Carolina. On July 9, 2011, Complainant filed an EEO complaint in which she alleged that the
Supervisory Medical Technologist in charge of the Clinic’s laboratory, her immediate
supervisor (S1), harassed her because of her race (African-American) between March and June
of 2011. She identified twenty-three incidents comprising her claim, which are set forth and
described below.

1. Complainant alleged that on March 21, 2011, S1 accused her of gossiping during a fire
drill. She also alleged that S1 did not acknowledge her for her work performance to the same
extent she acknowledged Complainant’s co-workers. Investigative Report (IR) 164. S1 denied
that she accused Complainant of gossiping. S1 did express her displeasure at the fact that
Complainant left a piece of paper containing patient information at her work station. IR 186-
87, 340.

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2. Complainant alleged that on March 23, 2011, S1 spoke to one of the more experienced
Phlebotomists (P1) about her in a negative and unprofessional manner. P1 and another
Phlebotomist (P2) had been tasked by S1 to train Complainant in the routines of her job. P1 is
white and P2 is black. IR 290. S1 denied that she made negative comments about
Complainant to anyone, but acknowledged that she might have commented about Complainant
failing to secure confidential patient information. IR 187. P1 and P2 both averred that they
never heard S1 say anything derogatory about any employee. IR 227, 243. They also testified
that Complainant did not want either P1 or P2 to train her, and that both of them went to S2 to
request that they be relieved of that responsibility because Complainant was not comprehending
what they were trying to impart to her. IR 234, 244. P1 cited an example in which
Complainant yelled at her after she reminded Complainant to log off her computer at the end
of her shift. IR 226. A Union Steward who knew Complainant stated that Complainant’s
interpersonal skills were not very good. IR 267.

3. Complainant alleged that between March 12 and June 7, 2011, S1 discussed her work
habits with P1 and P2 and failed to provide her with the opportunity to perform her duties as
part of the team. S1 had on a number of occasions, expressed frustration to P1 and P2 about
Complainant’s slow progress in understanding her duties. IR 188. P2 stated that she had
produced a series of power point presentations outlining the job routines, and that Complainant
failed to comprehend them. P2 also pointed out that Complainant refused to take notes. 227-
28, 244.

4. Complainant alleged that on March 31, 2011, S1 erroneously informed the Employee
Health Physician that Complainant was not injured on the job. Complainant however was not
injured but ill with a sore throat and swollen glands when she arrived at work that morning.
Complainant insisted on seeing the Employee Health Physician. S1 and the Physician had both
told her that because she was not injured on the job, she needed to see her own private
physician. IR 168, 189.

5. Complainant alleged that on April 1 and April 10, 2011, S1 prepared quality
assessments (QAs) on her, the purpose of which was to document Complainant’s mistakes.
She further alleged that S1 failed to do the same with similarly situated employees who were
not African-American. S1 responded that QAs were not disciplinary actions but rather were
tools that could be used to document occurrences that were out of the ordinary with the
ultimate aim of improving the performance and efficiency of the laboratory. S1 testified that it
was standard practice to prepare QAs and that she had written many of them. IR 190. P1 and
P2 also characterized QAs as learning tools to help improve performance. IR 229, 246.

6. Complainant alleged that on April 7, 13, 15, and May 23, 2011, S1 yelled at her. S1
denied that she ever raised her voice to complainant, and pointed out that because her voice is
soft, she has to speak up in order to project her voice. S1 also testified that Complainant was
resistant to receiving feedback from others, and that she herself would sometimes raise her
voice to S1 in a rude fashion. IR 184, 190. P2 testified that she never once observed S1
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yelling at Complainant or any other employee, noting that to do so would have been out of
character for S1. IR 246-37.

7. Complainant alleged that on April 11, 2011, S1 threatened to terminate her. S1
responded that she did not have the authority to terminate an employee and that she would
never do so. She testified that she had Complainant and P2 complete a QA concerning a
procedure that P2 was trying to assist Complainant with, and that in passing she had asked
Complainant if she wanted to work in the laboratory. IR 191-92, 342.

8. Complainant alleged that on April 13, 20, and 21, 2011, S1 failed to pay Complainant
overtime when she required Complainant to stay late in order to complete her assigned tasks.
S1 testified that on the days in question, Complainant had not been able to complete the
packaging of specimens that had to be sent out to other facilities in time for the courier to pick
them up at 4:30 PM. S1 further stated that she normally tried to avoid having to incur
overtime, and that she never required anyone to stay late who did not want to. In situations
where overtime was needed, S1 would ask for volunteers, and if no one wished to stay, she
would do the work herself. IR 192-93. P2 stated that S1 did not demand that an employee
stay late then refuse to authorize the payment of overtime. IR 247.

9. Complainant alleged that on April 15, 2011, S1 made offensive and inappropriate facial
and hand gestures when speaking with her. S1 testified that she had no recollection of such an
occurrence, and that the only thing she did recall was that she had asked Complainant to bring
a patient into the Clinic to have blood drawn. IR 193. P1 stated that she had never observed
S1 make inappropriate gestures toward any employee. IR 226. P2 averred that if S1 needed
to have a conversation with an employee about a work-related matter, she would have that
discussion with the employee in the privacy of her office. IR 247.

10. Complainant alleged that on April 27, 2011, S1 changed documentation of
Complainant’s verification codes in order to interfere with Complainant’s job performance. S1
and P2 testified that on that day, Complainant began training on how to work the front desk,
and that the “verification codes” to which Complainant referred were nothing more than the
protocols for documenting a patient’s name and social security number prior to drawing blood,
and that those protocols had not changed. IR 194, 247, 326-27.

11. Complainant alleged that on May 2, 2011, P1 accused her of not ordering eight PSA
tests after failing to train her on the type of test in question. IR 165. PSA tests are specific
blood tests that have to be done in the laboratory, as opposed to sending the specimens to other
facilities for testing. IR 164. P1 denied that she failed to train Complainant as required or that
she was trying to place Complainant in a negative light. S1 ordered Complainant and P1 to
prepare the missing tests. It was at this point that P1 first approached S1 and asked to be
relieved of having to continue to train Complainant. P2 pointed out that the power points that
she had prepared for Complainant had addressed the PSA testing procedure. IR 194-95, 231,
248, 350-51.

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12. Complainant alleged that on May 3, 2011, S1 gave Complainant more work
assignments than she gave to other employees. S1, P1, and P2 all testified that the job duties
of the Phlebotomist were divided in such a manner that the staff members would have to rotate
through different functions each week, that there was more work in some functional areas than
in others, and that every staff member was subject to these variations. IR 195-96, 231, 248.
The laboratory manager was unable to verify that Complainant was given more work
assignments than the other Phlebotomists. IR 282.

13. Complainant alleged that on May 19, 2011, S1 changed her arrival time on the sign-in
sheet from 8:05 AM to 8:07 AM. S1 responded that she changed Complainant’s arrival time
in order to ensure that the entry on the sign-in sheet matched what the computer identified as
the arrival time. IR 196.

14. Complainant alleged that on May 19, 26, and June 1, 2011, S1 sabotaged her work. S1
responded that Complainant was again taking issue with S1’s use of QAs as a quality control
mechanism and reiterated that QAs were never directed at people, only at situations that
needed to be resolved. The QAs at issue concerned the fact that specimens that needed to be in
the freezer were found on the floor beneath the refrigerator. P2 averred that part of
Complainant’s training included a reminder to place frozen specimens in freezer bags so that
they do not accidentally fall out. IR 196, 249.

15. Complainant alleged that on May 21, 2011, S1 called her a liar and told her that she
was incapable of performing her duties. S1 responded that she had never said such things to
Complainant and insisted that she was non-confrontational, that she approached her
subordinates as a teacher, and that her desire was to empower those under her supervision. S1
further testified that she was merely rehashing a discussion about procedures that she had had
with Complainant the previous week. IR 197.

16. Complainant alleged that on May 24, 2011, P2 shoved Complainant during an argument
and referred to her using the N-word. P2 uncategorically denied using a racial epithet against
Complainant or pushing her, and S1 testified that no one had ever brought the question of a
racial remark to her attention. IR 197-198, 250.

17. Complainant alleged that on May 26, 2011, an altercation occurred between herself and
S1 concerning the labeling of a blood specimen container. S1 and P2 averred that Complainant
had misplaced the label for a patient’s specimen while the patient had been waiting on line, and
that as a result, the patient was very irate and upset. IR 197-98, 250.

18. Complainant alleged that on May 26 and June 1, 2011, S1 falsely accused Complainant
of being absent without leave (AWOL). S1 stated that Complainant was assigned to the front
desk, and that between 11:15 and 12:15, she had stepped away from the front desk and had left
the office. She had not informed anyone as to where she was going, so for that hour, someone
else had to man the desk and ensure that patients were being checked in. Complainant did
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return to the office, but because she had left her designated work area without authorization,
she was charged with AWOL. IR 201-02, 232, 252-53.

19. Complainant alleged that on May 27, 2011, S1 made negative comments about
Complainant to people outside the laboratory. She stated that while a delivery person was
waiting for Complainant to finish preparing a specimen for shipment, S1 said something to the
delivery person about having to wait when people do not do their jobs, or words to that effect.
S1 denied that she had made that comment. IR 202.

20. Complainant alleged that on an unspecified date in May 2011, P1 physically threatened
her by jerking a telephone out of her hand. P1 denied that such a confrontation ever took
place. S1 stated that Complainant never came to her about the incident, and that P1 was a
slight woman with a timid voice, intimating that it was very unlikely that she would have
gotten herself into a physical altercation with Complainant. IR 202.

21. Complainant alleged that on an unspecified date in May, 2011, S1, while engaged in a
conversation with a patient, laughed when the patient allegedly referred to Complainant as a
“monkey,” in reference to her race. S1 averred that she did not remember such a conversation
ever taking place. IR 203.

22. Complainant alleged that on June 1, 2011, S1 directed a patient to report Complainant
to the Clinic’s Patient Advocate. According to S1 and P1, two patients had complained about
having to wait in line for a long time, and that when they finally got to the front desk, they
observed that Complainant appeared to be more concerned with talking on her cell phone than
with responding to their requests for assistance. S1 discussed the matter with the patients and
told them that if they were not satisfied, she would direct them to the Patient Advocate. IR
203, 233, 308, 333, 337.

23. Complainant alleged that on June 2, 2011, S1 refused to provide her with a clearance-
from-indebtedness form as required for outprocessing. Complainant notified S1 on June 1 that
she was going to resign, which she did June 7. IR 302-10. S1 responded that she had the
clearance form for Complainant and had told her to fill it out. IR 203-04.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing. After both parties submitted motions in response to the AJ’s notice of intent to issue a
decision on summary judgment, the AJ assigned to the case issued a decision on August 9,
2012, without holding a hearing. 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.

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ANALYSIS AND FINDINGS
To warrant a hearing on her claim of discriminatory harassment, Complainant would have to
present enough evidence to raise a genuine issue of material fact as to whether, because of her
race, S1 subjected her to conduct so severe or pervasive that a reasonable person in
Complainant’s position would consider to be hostile or abusive. See 29 C.F.R. § 1614.109(g);
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service

,
EEOC Appeal No. 01972699 (Aug. 14, 1998).
We will address incidents (16) and (21) first, as they deal with alleged racial epithets. The
Commission has held that even a limited number of offensive slurs or comments made about an
individual’s race can be sufficiently severe and pervasive to constitute harassment under Title
VII. Whidbee v. Department of the Navy

, EEOC Appeal No. 01A40193 (March 31, 2005).
However, the record does not support that either incident actually took place. Regarding
incident (16), P2 denied that she used the N-word in referring to Complainant. We have no
cause to question P2’s veracity. As to incident (21), Complainant has not presented any sworn
statements other than her own or documents that contradict S1’s denial that she even engaged
in the alleged conversation or which calls S1’s truthfulness into question. On balance, the
record does not support Complainant’s assertion that either incident occurred.
We next address incidents (2) through (5), (8), (10) through (14), (17), (18), and (22). Every
single one of these incidents arose out of concerns voiced by S1, P1, and P2 concerning
Complainant’s performance problems. In other words, these incidents are all work-related.
Incidents concerning routine work assignments, instructions, and admonishments do not
generally rise to the level of discriminatory harassment.

Finally, none of the remaining incidents comprising Complainant’s claim, either singly or
collectively, are severe or pervasive enough to create a hostile work environment. Moreover,
while Complainant expressed her belief that the incidents she described constituted race-based
harassment, she has not presented any evidence other than her own speculations that either S1,
P1, or P2 was motivated by unlawful considerations of her status as an African-American.
The Commission has long held that unsupported assertions by a Complainant are not sufficient
evidence of discriminatory motivation. Porter v. Department of the Navy

, EEOC Petition No.
03800087 (January 14, 1981).
What the record does show is that Complainant was struggling to master the routines of her
position as a Phlebotomist, and that her problems were compounded by difficulties with her
interpersonal skills. We therefore find, as did the AJ, that Complainant has not presented
enough evidence to raise a genuine issue of material fact with respect to her claim of
discriminatory harassment.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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.
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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

Date
March 19, 2015