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

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-1259-0500 (E.E.O.C. Sep. 10, 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. 0120131259

Agency No. 2001-0508-2012100559

DECISION

On January 12, 2013, Complainant filed an appeal from the Agency’s December 14, 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 for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Registered Nurse II at the Medical Center in Decatur, Georgia. On
March 2, 2012, she filed an EEO complaint in which she alleged that her immediate
supervisor, the Assistant Nurse Manager (S1), her second-level supervisor, the Nurse Manager
(S2), and her third-level supervisor, the Chief of Sterile Supply, Processing, and Distribution
Services (S3) subjected her to ongoing harassment between August 2011 and February 2012
because of her race (African American), disability (residual effects of on-the-job shoulder
injury), and previous EEO activity. She described seventeen incidents as comprising her
claim.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
0120131259

2
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

Complainant initially alleged that she was charged with absence without leave (AWOL) by S1
and S3 on August 30, 2011, and again from December 19, 2011 to February 10, 2012. IR
101, 105-06, 115-16, 138-44, 154-66, 176-78. S1 and S3 responded that Complainant had
been charged (AWOL) because she had not submitted written leave requests to support her
absences, and that when she did provide the requested documentation, her leave status was
changed to leave without pay. IR 130, 145-52, 155. Complainant herself acknowledged that
the AWOL charges had been removed and corrections made to her time cards. IR 116.

Next, Complainant alleged that on October 4, 2011, S1 gave her a rating of “satisfactory” on
her proficiency report. IR 101-02, 106. Complainant was rated satisfactory in the categories
of nursing practice and interpersonal relationships, and was given an overall evaluation of
satisfactory. IR 206-15. S1 stated that Complainant had met the performance expectations of
her position, having satisfied all of the performance criteria. IR 131. S3 concurred in the
rating. IR 151.

Third, Complainant alleged that on October 12, 2011, S1, S2, and S3 misrepresented her
condition to the Employee Health Physician and that on February 6, 2012, they attempted to
place her in a light duty assignment in unfavorable working conditions. On August 18, 2011,
Complainant suffered an on-the-job injury that resulted in injuries to her right shoulder. She
was placed in light-duty status on August 25, 2011. Her restrictions included no continuous
use of her right arm and no lifting overhead. IR 154-64. Complainant averred that she was
given a job assignment in Sterile Supply, Processing, and Distribution Services that entailed
data entry tasks that she was unable to perform. IR 117. She also averred that during
discussions with the Employee Health Physician, S1, S2, and S3 made untrue comments such
as “I gave her several options,” “should we send her home,” “she can’t write or use her arm,”
and “she tries to hook up a patient to a monitor and fix a printer. IR 109-10. S1, S2, and S3
admitted to making the comments in question, but in the context of trying to find the right
accommodation for Complainant and trying to make sure she did not injure herself further by
exceeding her medical restrictions. IR 134-35, 152-53, 164-65, S1, S2, and S3 also testified
that Complainant was given a light duty assignment that required data entry. S1 could not
recall Complainant objecting to the assignment. IR 141. S2 and S3 testified that Complainant
was given another assignment when it became apparent that she could not enter data into a
computer. IR 157, 166.

Fourth, Complainant alleged that throughout October and November of 2011, S1, S2, and S3
were scrutinizing her performance excessively and making comments critical of her and her
job performance. In particular, she averred that S1 accused her of using her cell phone for
personal calls while on duty, of going to the Employee Health Unit to complain, of asking co-
workers to write statements about her, and of going to the gym when she was supposed to be
on light duty. IR 102, 107-09, 111, 113-14, 171. Regarding cell phone usage, S1 testified
that the Agency’s ethics guidelines emphasized the primacy of customer service and
0120131259

3
specifically identified personal cell phone usage during work hours as prohibited. IR 136-37,
154. She further testified that it was part of her job to investigate issues with employees and
that it had been brought to her attention that Complainant had been using her cell phone when
she shouldn’t have. IR 135-36, 153. As to the various comments attributed to them by
Complainant, S1, S2, and S3 stated that they denied making those statements, could not recall
having made the statements, and/or denied harboring any intent to harass or intimidate her. IR
132, 133, 138-39, 144, 165.

Finally, Complainant alleged that on December 19, 2011, S1 moved Complainant’s personal
belongings and her entire workstation while she was on leave. IR 116-17. S1 and S3
responded that Complainant’s work area was relocated so that a television set could be placed
on the wall for the benefit of veterans using the facility, and that the move was undertaken in
accordance with guidance from the Safety Coordinator. IR 140-41, 156.

ANALYSIS AND FINDINGS

To prevail on her claim of discriminatory harassment, Complainant would have to prove by a
preponderance of the evidence, that because of her race, disability, or previous EEO activity,
she was subjected to conduct so severe or pervasive that a reasonable person in Complainant’s
position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998). Only if Complainant satisfies her burden of proof with respect to both of those
elements, motive and hostility, will the question of Agency liability present itself. Here,
Complainant has not established the existence of either element.

With respect to the element of hostility, the incidents concerning Complainant’s AWOL
charges, her proficiency report, management’s attempts to find her a light duty assignment, her
cell phone usage, and the moving of her workstation involve nothing more than routine work
assignments, instructions, or admonishments. As such, they do not constitute harassment. See
Bass v. United States Postal Service, EEOC Appeal No. 0120082167 (July 30, 2010). The
remaining comments attributable to S1, S2, and S3 all concerned her conduct or behavior
while in the workplace and are neither severe or pervasive enough, either singly or collectively
to rise to the level of abuse on par with a racial slur or otherwise constitute harassment. See
Quinones v. Department of Homeland Security, EEOC Appeal No. 01A53109 (March 31,
2006).

Complainant has likewise not established the element of motive. The affidavit testimony of S1,
who Complainant named in almost all of the incidents, has been corroborated by that of S2 and
S3, as well as by Complainant’s leave records and other contemporaneously prepared
documents and memoranda. While Complainant asserts that the actions taken by these
management officials were discriminatory, she has not presented any sworn statements from
other witnesses or documents that contradict their explanations for the various incidents or call
their veracity into question. It is Complainant’s burden to establish the existence of an
0120131259

4
unlawful motivation on the part of the responding management officials by a preponderance of
the evidence, and more is required to meet that burden than merely expressing one’s belief.

We therefore find, as did the Agency that Complainant failed to satisfy her burden of proof as
to the existence of discrimination with respect to the incidents described in her complaint.

CONCLUSION

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

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
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
0120131259

5
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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2015
Date