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

Equal Employment Opportunity Commission

Jul 14, 2015

01-2013-1251-0500 (E.E.O.C. Jul. 14, 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. 0120131251

Hearing No. 480-2012-00083X

Agency No. 200P06912010101779

DECISION
On February 19, 2013, Complainant filed an appeal from the Agency’s January 16, 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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Program Specialist at the Agency’s Greater Los Angeles Health Care System facility in Los
Angeles, California. On April 5, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of her race (African-American) and sex (female)
when:

1. On February 25, 2010, management denied Complainant’s rotation training request;
and
2. Beginning in January 2008, management subjected Complainant to a hostile work
environment when:
a. On January 10, 2008, management denied Complainant’s cross training
request;
b. On July 29, 2008, management changed instructions Complainant had
originally given her staff;
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c. On July 29, 2008, management failed to take any action after Complainant
complained a manager was interfering with her ability to perform her
supervisory duties;
d. On July 30, 2008, a manager disregarded management’s instructions when
Complainant was assisting a physician with a delinquent report;
e. On August 5, 2008, management gave instructions to Complainant’s staff
regarding a project without her knowledge;
f. In August 2008, management continued to interfere with her supervision
including giving instructions to Complainant’s staff without her knowledge;
g. In August 2008, management failed to inform Complainant one of her
employees had accepted another position and did not allow her to provide
her input regarding the employee’s release date;
h. In September 2008, management changed the process of informing
physicians of delinquencies without Complainant’s knowledge;
i. In September 2008, Complainant’s staff informed her a process had been
changed based on management’s instructions;
j. In September 2008, management failed to inform Complainant one of her
employees was leaving;
k. In September 2008, management failed to give Complainant advance
notification that an employee was being detailed to her department;
l. On February 27, 2009, management temporarily detailed Complainant to a
Medical Administrative Assistant position and required her to work out of
another room;
m. On April 13, 2009, management changed Complainant’s tour of duty;
n. In June 2009, management refused to meet with Complainant to discuss
proposed changes to her position description and removed an essential
function from her position description;
o. On July 7, 2009, management removed Absent Without Leave (AWOL)
charges Complainant had given to two of her employees without consulting
with her;
p. On October 9, 2009, management denied Complainant’s request for cross
training;
q. In October 2009, management did not discuss the results of one of
Complainant’s employee’s performance appraisal ratings with her;
r. In October 2009, management down rated Complainant’s “Personnel
Management” performance rating from “Exceptional” to “Fully
Satisfactory”;
s. In November 2009, management failed to notify Complainant a new
employee was being detailed to her department;
t. On November 12, 2009, management failed to take any action after
Complainant complained a manager was interfering with her ability to
perform her supervisory duties;
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u. On January 6, 2010, management permitted one of Complainant’s
employees to attend a town hall meeting after Complainant had denied the
employee’s request;
v. On January 6, 2010, management failed to take any action after Complainant
complained a manager was interfering with her ability to perform her
supervisory duties;
w. On January 9, 2010, Complainant had to sign a disciplinary action letter for
an employee she did not manage; and
x. On February 25, 2010, Complainant was denied rotation training.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On December 21, 2012, over Complainant’s objections, the AJ assigned to the case granted the
Agency’s motion for a decision without 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.

On appeal, Complainant alleges, for the first time, that she was subjected to age and reprisal
discrimination. The Commission finds that Complainant may not amend her complaint to add
these bases for the first time on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No.
01A00196 (May 11, 2000). Complainant also alleges that she was denied a promotion based on
race and age discrimination. As this claim was raised for the first time on appeal, we will not
address it in the instant decision.1

ANALYSIS AND FINDINGS
We note that, as this is an appeal from a final 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). The Commission’s regulations allow an AJ to issue a decision
without a hearing when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set
forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for
summary judgment, a court’s function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party
must be believed at the summary judgment stage and all justifiable inferences must be drawn in
the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett

1 If Complainant wishes to pursue a new claim of discrimination, she should initiate EEO
contact with an Agency EEO Counselor.
,
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477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.Corp., 846 F.2D 102, 105 (1st Cir.
1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, it is not appropriate for an AJ to issue a
decision without a hearing. In the context of an administrative proceeding, an AJ may properly
issue a decision without a hearing only upon a determination that the record has been
adequately developed for summary disposition. Petty v. Defense Security Service, EEOC
Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army

, EEOC Appeal No.
01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. 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). Complainant
must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc

., 530 U.S. 133 (2000).
In claim (1), Complainant alleges management denied her request for rotation training.
Specifically, she alleges she told her second line supervisor (S2) she was interested in rotating
into the Supervisory Health System Specialist position for a 90-day training period.
Complainant alleges S2 ignored her request and instead appointed a white female (E1) into the
position. However, Complainant has not shown that S2 was aware of her interest in the
position prior to appointing E1, and S2 stated he had no knowledge of this incident.
Furthermore, Agency records for the period of May 1, 2008, to May 27, 2010, do not show
that Complainant, or anyone else in her Department, submitted training requests. Complainant
cannot be denied a training request that she never submitted. Accordingly, we concur with the
AJ’s finding that Complainant failed to show that she was subjected to unlawful discrimination
with respect to this claim.

With respect to the remaining claims, to establish a claim of harassment, a complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment
in the form of unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on her statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been
"sufficiently severe or pervasive to alter the conditions of [complainant's] employment and
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create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). 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 at 6 (Mar. 8, 1994). Whether an environment is
hostile or abusive can be determined only by looking at all the circumstances, which may
include 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. A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th

Cir. 1982).
Here, Complainant alleges the Agency subjected her to a hostile work environment in 24
separate events. In events (a), (p), and (x), Complainant has alleged that management denied
her requests for training. We note that (x) addresses the same event as described in claim (1)
which we have already discussed. As for (a), while Complainant asserts she requested cross
training, S2 stated that she never pursued this training beyond an initial conversation where she
did not seem to know what kind of training she wanted to do. S2 stated Complainant never
pursued any of the recommendations he made. In (p), Complainant’s first line supervisor (S1)
found an email from Complainant, dated after her complaint had been filed, requesting cross
training, but he does not recall receiving this email. Complainant has not shown that S1
deliberately ignored this email or otherwise denied her request for training. Even if we assume
S1 did see her email, Complainant has failed to show he did not grant her training request out
of discriminatory animus.

Next, Complainant alleges in (b), (d), (e), (f), (h), (i), (u), and (w) that S1 changed
instructions Complainant had given her staff and otherwise undermined her supervisory
authority. In all of these incidents, Complainant alleges that S1 gave her subordinates
instructions and made changes to various reporting procedures without her knowledge. S1
stated that S2 had told him to closely manage Complainant because she was not complying with
his instructions. S1 also stated that in several cases Complainant did not understand the
process, causing him to have to work directly with a subordinate to get the work done. S1
asserted that while he wanted Complainant to learn the process, she refused to do so.

In (c), (t), and (v), although Complainant alleges that S2 failed to take any action after she
informed him of S1’s interference with her ability to perform her supervisory duties, S2 stated
that he repeatedly encouraged Complainant and S1 to work out their differences and made
every effort to resolve these issues. He also stated that Complainant was not skilled in
interacting with her subordinates and that S1 had to assist her. He asserted that at one point the
relationship between Complainant and her staff had so deteriorated that he brought in a
professional mediator. Further, he stated that her staff complained that Complainant would
lock herself in her office, was inaccessible to them, and was not impartial in her decision-
making and favored certain individuals over others. S2 stated that, as a result, some employees
worked with S1 directly because they did not feel Complainant was executing her duties as a
supervisor.
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In (g), (j), (k), and (s), Complainant alleges that management did not keep her informed about
personnel changes. In event (g), the record indicates Complainant was aware that this
particular employee was going to be leaving. In the other instances, S2 stated he informed
Complainant that employees were being detailed but often he was not even told until a few
days before the actual event.

In (l) and (m), Complainant alleges she was temporarily detailed to a Medical Administrative
Assistant position, required to work out of a different room, and that her tour of duty was
changed. The record shows, however, that although Complainant stated she considered this to
be a demotion, she suffered no loss in pay and continued to be responsible for her regular
duties. Additionally, she conceded that other employees were temporarily detailed to this
position and had to change their hours as well.

Next, in (n), Complainant alleges that S1 refused to meet with her to discuss proposed changes
to her position description and that he removed an essential function from that description. In
(o), Complainant alleges S1 removed AWOL charges she had given to two of her employees
without consulting with her. In (u), Complainant asserts management permitted one of her
employees to attend a town hall meeting after she had denied the employee’s request. The
record, however, is devoid of evidence to show that any of these incidents occurred as alleged.

Next, in (q), Complainant alleges S1 did not discuss the performance appraisal rating for one
of her employees with her. Specifically, she found out that S1 upgraded the ratings of two of
her subordinates. S1 stated he felt that two of the employees deserved better evaluations and
instructed Complainant to redo them. At the end of the rating period Complainant had not
followed his instructions, so he corrected the evaluations. In (r), Complainant alleges S1
downgraded her performance from “Exceptional” to “Fully Satisfactory” in the category of
Personnel Management. S1 asserts, however, that Complainant was aware of her rating for
two months prior to the end of the rating period and never provided any input on her
performance appraisal.

After viewing the evidence in a light most favorable to Complainant, we find that she failed to
show that she was subjected to a hostile work environment. While Complainant may have
believed management was undermining her authority amongst her subordinates, she has not
shown that any of the Agency’s actions were motivated by discriminatory animus. The record
shows that Complainant’s claims are primarily the result of her work environment and
differences of opinion with S1 on operational matters and supervisory styles. While
Complainant alleges her race and/or sex were motivation for S1 and S2’s conduct, she presents
no evidence beyond her own beliefs. Complainant’s claims, whether viewed individually or
collectively, are insufficiently severe or pervasive so as to unreasonably interfere with or
materially alter Complainant’s working conditions.

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CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

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
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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

Date
July 14, 2015