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

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-1422-0500 (E.E.O.C. Sep. 25, 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. 0120131422

Hearing No. 532-2010-00075X

Agency No. 200H-06462009-102792

DECISION

On March 1, 2013, Complainant filed an appeal from the Agency’s February 4, 2013 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and 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 for de novo review 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 Public Affairs Specialist in Education at the Agency’s Healthcare
Complex in Pittsburgh, Pennsylvania. She filed an EEO complaint in which she alleged that
the Library Manager, her immediate supervisor (S1) and the Associate Director of Education
Services, her second-level supervisor (S2) harassed and discriminated against her between
April and November 2009, because of her race (African-American), disability (seizures), age
(58), and prior protected EEO activity.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the report of investigative report (IR) and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but over Complainant's objections, the AJ assigned to the case granted the
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Agency’s July 16, 2010, motion for summary decision and issued a decision on January 15,
2013, 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.

Complainant initially averred that S2 suspended her between September 21 and September 29,
2009. In July, S2 had proposed to suspend Complainant for 14 days on charges of maintaining
unauthorized possession of patient records, unreasonable delay in carrying out supervisory
instructions, and failure to follow supervisory instructions. IR 189-92, 195, 206-07, 209, 296-
97 The deciding official, the Chief of Staff, mitigated the suspension to 8 days based on
Complainant’s reply to the charges. IR 166, 219-20, 298, 303-16.

Complainant next averred that S1 subjected her to a hostile work environment between April
and November 2009. She maintained that S1 had the Agency police charge her with refusal to
turn over keys to two filing cabinets, held her to a performance standard that she could not
meet, threatened her with disciplinary action, and searched her work area while she was out of
the office serving her suspension. IR 162-64, 169-76, 388-89. With respect to the keys
incident, S1 responded that the police were called in at the request of the Privacy Officer to
supervise the removal of the cabinets to a different location, that the police did not charge her,
and that she was suspended for maintaining confidential patient information in those cabinets
without authorization. IR 190, 299, 384-87. As to S1’s alleged threats of disciplinary action,
S1 testified in her affidavit that Complainant was assigned a project that had deadlines and
standards, both qualitative and quantitative, and that at the direction of the Labor Relations
Office, she was required to insert into the email communicating the assignment language to the
effect that failure to complete the project as assigned could result in disciplinary action. IR
192. S1 further averred that she had suggested that Complainant process 30 books per day
pursuant to the project, and that she agreed to lower the standard to 20 books per day after
Complainant informed her that she could not meet the 30-book requirement. IR 193, 339,
388, 390, 394, 396-97. S1 also suggested to Complainant that if she had a medical condition
that prevented her from working on the project, she should avail herself of the reasonable
accommodation process. IR 194-95, 389, 391-93, Finally, S1 denied that she searched
Complainant’s work area and S2 noted that Complainant’s work area was in the library annex
and was not a personal workspace. IR 195, 210.

Third, Complainant averred that S1 reviewed her work while she was on suspension, that S1
documented her performance errors without discussing those errors with her, and that S1
refused to discuss her performance expectations or appraisal with her, and changed the
appraisal after she, Complainant, had signed it. IR 176, 178-82, 376, 379, 410. S1 testified
in response that she reviewed Complainant’s work every two weeks, and that Complainant’s
presence was not required for that review to take place. IR 195-96, 376. S1 further testified
that she did discuss Complainant’s performance with her, including expectations and errors,
and noted that she did not discuss with Complainant certain competencies on which
Complainant had rated herself that were not relevant to her position description. IR 197-98.
S1 referenced a number of emails from October 2009, through which she attempted to discuss
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Complainant’s performance with her. IR 379-82. S1 likewise denied that she had changed
Complainant’s appraisal after signing it. IR 198, 321-27, 330-34, 410.

Fourth, Complainant averred that S1 failed to provide her with protective items or cleaning
supplies after she informed S1 of the unsanitary conditions of her workspace. IR 177-78, 375,
413-14. S1 responded that she while she knew that the library was dusty, she was not aware
of unsanitary conditions, and that Complainant sent her an email in October 2009, indicating
that the custodial staff had dusted the library shelves. IR 196-97, 210, 375.

Finally, Complainant averred that S1 failed to give her 30-year service pin. An email from S1
to Complainant dated August 19, 2009, instructed Complainant to pick up her thirty-year
service pin from the Human Resources Office. IR 201-02, 214, 352.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s actions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for those
actions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, in order to warrant a hearing on her claims of disparate treatment and harassment,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S1 or S2 were motivated by unlawful considerations of her race, age, disability, or
previous EEO activity in connection with the incidents described in her complaint. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Complainant can do so by presenting evidence of discriminatory statements or past personal
treatment attributable to those individuals, comparative or statistical data showing differences
in treatment across racial, age or disability lines, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Put another way, if Complainant fails to
raise a genuine issue of material fact concerning the existence of discriminatory intent on the
part of at least one of the responding management officials, no further inquiry would be
necessary as to whether the incidents complained of are severe or pervasive enough to rise to
the level of harassment or whether they constitute separate acts of discrimination under
disparate treatment theory.

After reviewing the evidentiary record in this case, we find first that Complainant was issued
an 8-day suspension because of her unauthorized possession of confidential patient information
in the two filing cabinets over which she had custody, and, to a lesser extent, because of her
failure to follow S1’s instructions in completing the project assigned to her at the time.
Second, we find that what Complainant characterizes as harassment on the part of S1 is
actually S1’s attempts to complete her work assignment in a timely manner. That assignment
required Complainant to process twenty books per day. Complainant had not done so. Third,
we find that, S1, contrary to Complainant’s allegations, had indeed reviewed Complainant’s
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performance and had done so extensively. S1 had discussed with Complainant her
expectations regarding completion of the assignment as well as the errors that Complainant had
made during the course of the assignment. Fourth, we find that, while Complainant’s work
area in the library was dusty, it was not unsanitary, and Complainant had assistance from the
custodians in removing the dust from the books and the shelves. Finally, we find that S1 did
provide Complainant with information on how to obtain her thirty-year service pin.

In a lengthy rebuttal affidavit, Complainant contests the explanations put forth by S1 and S2
for their actions in connection with the incidents at issue. IR 271-84. However, more is
required to raise a genuine issue of material fact than merely expressing one’s belief. While
Complainant asserts that S1 and S2 were motivated by unlawful considerations of her race,
age, disability, or previous EEO activity, she has not presented any sworn statements from
other witnesses or documents that contradict the explanations provided by those officials or
which call their veracity into question. Rather, she made conclusory assertions such as “most
of [my fellow employees] were younger than me,” “I was the only African-American in the
group,” or “they wanted to force me to retire from the [Agency].” IR 164, 169-78, 180, 182.
She also admitted that her disability was not a factor in most of the incidents. IR 166, 170,
179-80. We therefore find, as did the AJ, that no genuine issue of material fact exists with
respect to any of the incidents comprising Complainant’s claims of discrimination or
discriminatory harassment and Complainant failed to prove that she was subjected to prohibited
discrimination.

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 (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 25, 2015
Date