0120130869
03-13-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130869
Agency Nos. 2003-0331-2010102394
2003-0331-2011101641
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 14, 2012 final decision concerning the two captioned EEO formal complaints that claimed unlawful 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.
BACKGROUND
During the period at issue, Complainant worked as a Legal Administrative Specialist at the Agency's Support Services, Veterans Affairs Regional Office facility in St. Louis, Missouri.
Complainant filed two formal complaints on May 4, 2010 and March 17, 2011, respectively.
Agency No. 2003-0331-2010102394 (hereinafter referred to as Complaint 1)
On May 4, 2010, Complainant filed a formal complaint alleging that she was subjected to harassment and a hostile work environment on the bases of race (African-American), sex, (female) color (black), and in reprisal for prior EEO activity when1:
1. on March 22, 2010, the Acting Assistant Support Services Officer excused her and another female African-American employee from a meeting. Two female Caucasian employees remained. Complainant was later informed by the Caucasian employees that they were asked to apply for the vacant position in Support Services;
2. on March 23, 2010, the Acting Assistant Support Services Officer became very loud inquiring about a Chapter 31 listing, followed Complainant and kept yelling "I'm getting you out of here, I am getting you fired," while pointing his finger and eventually poking Complainant's forehead with his finger. Complainant felt threatened and intimidated;
3. on August 16, 2010, her request to work overtime the week of August 6, 2010 was denied;
4. on August 16, 2010, she asked the Chief of Services Support Division why two female co-workers were allowed to take longer lunches than her. Complainant never received an adequate response;
5. on October 6, 2010, the Acting Assistant Support Services Officer walked past her desk and gave her a threatening look.2
Agency No. 2003-0331-2011101641 (hereinafter referred to as Complaint 2)
On March 17, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex, (female), disability, color (black), and in reprisal for prior EEO activity when:
6. on January 11, 2011, her supervisor issued her a written reprimand.
After the investigation of claims 1 - 6, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision on November 14, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discrimination against on the basis of race, sex, disability, color and reprisal discrimination.3 The Agency concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. The Agency further found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Acting Assistant Support Services Officer (Officer) stated that in regard to claim 1, he conducted a meeting with Complainant and three other female employees to inform them "that positions would be opening up. I advised them that they all should apply if they were eligible and if and when those positions were announced."
Regarding Complainant's assertion that the Officer told her and another female employee to leave the meeting while the other two employees remained, the Officer acknowledged doing so. Specifically, the Officer stated that he asked Complainant and the other employee to leave "because I was in the process of writing up an upgrade in the positions for the other two ladies in their current position in accounting. I was trying to increase their grades from a GS-7 to GS-9 and I was trying to get the particular information concerning their position and their duty assignments."
Further, the Officer stated that Complainant and the other employee do not work in accounting. The Officer stated the other employee "is a time keeper. I had not even gotten to that area yet. And also, that [Complainant] was working education claims. Both those two have totally different job descriptions that the other two ladies."
Regarding claim 2, the Director stated that following the finger pointing incident referenced in that claim, the Officer was placed on detail. The Director stated that when this matter "was brought to my attention that it was some involvement, some level of touching and finger pointing. Again, this is what both parties are saying; 'he touched me, no, she touched me.' The back and forth stuff. The incident itself, was investigated by the Federal Protective Service." The Director stated that following the investigation, he was notified by the investigators "that there was no way of substantiating whose account, of the event, was accurate. Both of them provided a report of what transpired. Obviously, [Complainant] describes it in a way separate than [Officer]. So, when I talked to the investigating officers, they said there was no way of substantiating either one of them. It is essentially a 'he said, she said' event."
The Director stated that while a named female employee provided her testimony to the Federal Protective Service "but their account was that her story was a third story. In other words, we got an account as described by [Complainant]. We got an account that was described by [Officer] and we got an account that was described by [female employee] and none of them matched."
Regarding claim 3, the Chief Support Services Division, also Complainant's supervisor, stated that Complainant's request to work overtime the week of August 6, 2010 was denied because Complainant lacked the training and knowledge for the work being performed. Specifically, the supervisor stated that Chapter 33 (post 911 GI bill) is an educational benefit. The supervisor stated that in support of this national program, the Education Division regularly works over time. The supervisor stated "due to the volume of the work load, SSD was granted a short period of time and limited over time funds from the Education Department...so the only personnel that were authorized to work overtime during this period and with these funds, were those that were already performing work in support of Chapter 33."
The supervisor stated that Complainant "lacks the training and knowledge necessary for the work being performed because her normal work is in support of a Voc Rehab and Education program, Chapter 31. The computer programs and processes she uses are completely different than what is needed for Chapter 33. So, she does not perform work in support of Chapter 33 as part of her responsibilities. That is why when [Complainant] asked about it, this was explained to her that the only people that were going to be working overtime, were those that were already doing some kind of work related to the program because of limited opportunity for overtime funds given to us by the Education Division."
The Director stated that while he is not aware why Complainant was or was not offered overtime, Complainant "works in our Support Services Division, which is finance. And we are one of the four regional processing offices for Education claims. So, when you asked the question how often is overtime offered for Chapter 33 claims, which are the new post 911 GI Bill, I would say to you almost every weekend, but that does not apply to [Complainant] because [Complainant] works in Finance."
Further, the Director stated that all employees in Finance, including Complainant, do "some financial work related to Chapter 33. They don't get to work every single weekend, but you would have to speak to [a named supervisor] about the details of how many times they were offered overtime to help with the financial component of Chapter 33, which is dealing with return checks from schools; things of that sort."
Regarding claim 4, the supervisor stated that he does not recall "what my comments were in this specific instance, but it would have been in line with my overall philosophy. Many people ask to combine their breaks with their lunch for personal reasons. I don't record these events." Specifically, the supervisor stated "due to our current resource situation, I do not have the capability of monitoring individual staff on their breaks and/or lunches. My standard has been that if the work gets done, I won't micro-manage the schedule...there is no preferential treatment or actions taken regarding the enforcement of the break/lunch procedures in the seven months I've been in the division...if I were to perform an unannounced audit on my staff's pattern of breaks, I could show that [Complainant] has not been treated unfairly. On the contrary, I would say on casual observation that [Complainant] takes advantage of our current inability of strict enforcement more than others in our division."
Regarding claim 5, the record reflects that the Officer acknowledged walking past Complainant's desk on October 6, 2010 but did not see her that day.
Regarding claim 6, the record reflects that in March 2010, the supervisor became Complainant's supervisor. At that time, Complainant was out on extended leave and Agency management was already having issues with her attendance. The supervisor stated during her absence, Complainant rarely let him know as to the type of leave she needed or the amount of leave she needed. Complainant also failed to let the supervisor know when she would return to work.
The record further reflects that the supervisor did not meet Complainant until she returned to work on June 1, 2010. Upon her return, the supervisor reviewed the proper procedures for requesting leave and the obligations she had under the leave procedure. During the relevant period, Complainant would leave regularly without complying with the leave procedures. The record reflects that the supervisor sent Complainant emails reminding her to comply with the leave procedures. The record reflects that on November 23, 2010, the supervisor sent Complainant a letter because Complainant had been absent from work since November 8, 2010, without following leave procedures and without supplying documentation in support of her absence. Complainant was charged Absence Without Leave (AWOL) from November 8, 2010 through November 12, 2010.
The record reflects that on December 14, 2010, Complainant was issued a proposed reprimand for being AWOL and failure to follow instructions to properly report her absences to her supervisor. On January 11, 2011, the proposed reprimand was sustained.
In his affidavit, the supervisor stated that on January 11, 2011, he issued Complainant a written reprimand because she continuously disregarded his instructions and failed to follow proper leave procedures. Specifically, the supervisor stated that after being charged with AWOL "within a week, [Complainant] was repeating the same behavior of just taking off and not requesting time or not properly giving notice of supervisors. And even after the AWOL in January [2011]...I've got the emails since then where she's continuing the behavior. This is just nothing but a pattern of behavior of an employee who refuses to follow the policy regulations on leave - it has nothing to do with anything else."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, sex, disability, color, and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 13, 2015
__________________
Date
1 For ease of reference the Commission has numbered Complainant's claims in both captioned complaints as claims 1 - 6.
2 The record reflects that claims 3 - 5 were later amended to the instant formal complaint.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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0120130869
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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