0120123429
03-20-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123429
Hearing No. 510-2011-00522X
Agency No. 200I-0050-2010105009
DECISION
On August 31, 2012, Complainant filed an appeal from the Agency's July 24, 2012, final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist at the Agency's Office of Inspector General, Healthcare Inspections facility in Atlanta, Georgia.
On January 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability when she was subjected to harassment. In support of her claim, she alleged that the following events occurred:
1. In April 2009, Complainant's coworker (Coworker) interrupted her while she was conducting a briefing and told her not to talk about an Emergency Department (ER) review because she was not an expert.
2. In April 2009, the Associate Director failed to take action when Complainant asked her to intervene regarding the frequent interruptions by the Coworker.
3. In August 2009, while her work group was traveling to an inspection site, the Coworker told her that she could not work on any pending reports and was required to work on only one project at a time.
4. In March 2010, the Coworker gave her and the site facility less than one day notice to complete a review, which resulted in a less than satisfactory inspection and the results were held against her at her annual performance appraisal.
5. In April 2010, she attempted to discuss some of her concerns regarding her office with the Inspector General's (OIG) office in Washington, D.C., but received no assistance.
6. In April 2010, the Coworker refused to talk to her directly at a meeting and, instead, had another employee who was sitting next to her ask her questions to Complainant.
7. On September 8, 2010, the Coworker sent her repetitive messages regarding an inspection draft report rather than working with the team leader as indicated on the OIG standard operating procedures.
8. On September 8, 2010, the Associate Director and Director denied her sick leave request for September 9, 2010, even though she sent them email messages early and they were aware of her medical condition that day.
9. On September 21, 2010, while in a meeting, the Director discussed an email that was sent to the OIG office and told the staff that nothing was going to change and those who could not adjust should just move on.
10. On September 22, 2010, the Associate Director and the Coworker were continuously going into each other's offices, slamming doors, and laughing while only the two of them and Complainant were in the office.
11. In October 2010, while on a site inspection, the Associate Director and the Director issued her annual performance appraisal noting some performance issues that were never discussed with her in a timely manner.
12. In November 2010, during a follow-up appraisal meeting, the Director gave her a "Fully Satisfactory" in the non-critical category of Teamwork, indicating that she did not get a better rating because she went outside the office to discuss office issues.1
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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency determined that Complainant did not establish that the alleged events occurred because of her protected bases.
Complainant appealed. On appeal, she indicated that she filed a subsequent complaint alleging additional claims of discrimination and an appeal with the Merit Systems Protection Board (MSPB). Complainant requested that the Commission hold her case in abeyance pending the MSPB decision. We note, however, that while the appeal has been pending before the Commission, Complainant has not provided any additional or updated information regarding her appeal before the MSPB.
In the alternative, Complainant argues that she was undergoing in vitro fertilization treatments at the time of the events at issue and was under medical direction to avoid stress. As such, she claimed that the Agency subjected her to harassment contrary to her physician's directions. Further, she indicated that she alleged the basis of reprisal with respect to the last two events. Complainant argued that the Commission should find that the events alleged sufficient to have created a hostile work environment in violation of Title VII and the Rehabilitation Act.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
It is well-settled that harassment based on an individual's disability, race, sex, and prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act, belongs to the statutorily protected classes, and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability, race, sex, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); 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 on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant has failed to show that the alleged events, taken as a whole constituted unlawful harassment. We note that Complainant alleged events regarding actions of a coworker that may not have been appropriate for the workplace, but do not rise to the level of creating an intimidating or hostile environment. In addition, Complainant did not prove that the events occurred as she alleged2 or that they occurred because of her protected bases. Complainant merely stated that she believed that the events occurred because of her sex, race, or disability without supporting evidence. Therefore, we conclude that Complainant has not shown that the events alleged, taken as a whole, constituted unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 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 20, 2015
__________________
Date
1 Complainant subsequently amended her complaint to add the basis of retaliation to allegations 11-12.
2 For example, Complainant asserted that she was denied her leave request for September 9, 2010. On the contrary, the record indicated that Complainant was permitted to take leave on the date in question.
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0120123429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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