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

Equal Employment Opportunity Commission

Mar 11, 2015

0120132486 (E.E.O.C. Mar. 11, 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. 0120132486

Hearing No. 440-2011-00134X

Agency No. 200J-0578-2010104772

DECISION
Complainant filed an appeal from the Agency’s final order dated May 6, 2013, finding no
discrimination with regard to her 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND
The record indicates that on September 8, 2010, Complainant, a Program Support Assistant,
GS-7, at the Performance Improvement Section at the Agency’s Edward Hines Jr. Medical
Center in Hines, Illinois, contacted an EEO Counselor regarding her complaint. Unable to
resolve the matter informally, Complainant filed the instant complaint, dated October 26,
2010. Therein, Complainant alleged discrimination based on race (Black) when she was
subjected to harassment in that:

(1) On April 29, 2010, her supervisor (S1) hit her on her hand;
(2) On May 13, 2010, S1 shook her by her arms;
(3) On May 25, 2010, S1 gave her a written counseling and threatened to put her on
a performance improvement plan;
(4) On July 8, 2010, S1 told an employee that she was terminating Complainant;
0120132486

2
(5) On August 5, 2010, S1 told her to find another job and she would then receive a
satisfactory performance appraisal;
(6) On August 12, 2010, S1 told her that she was making the office look "stupid"
and accused her of killing trees;
(7) On August 19, 2010, S1 verbally abused her in the hallway about using volunteer
helpers;
(8) On August 23, 2010, S1 sent her an email asking her about her efforts to find
another position and S1 indicated S1 would soon be doing her evaluation;
(9) On September 13, 2010, S1 accused her of not performing work;
(10) On September 17, 2010, S1 threatened her that S1 would be meeting with her
regarding her performance;
(11) On October 5, 2010, S1 yelled at her in front of another colleague;
(12) On October 6, 2010, S1 told her that S1 would meet with her regarding her
performance and her EEO complaint; and
(13) On October 12, 2010, she was required to meet with her Associate Director (S2)
to discuss performance and finding another position.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 29, 2013, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

ANALYSIS AND FINDINGS
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, 477
0120132486

3
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case,
despite Complainant’s contentions on appeal, we find that the AJ properly issued a decision
without a hearing because no genuine dispute of material fact exists.
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Specifically, S1 indicated that since Complainant was
reassigned to S1’s office in January, 2010, S1 found working with her challenging as she had
difficulty transitioning from her prior position as a Medical Support Assistant to her current
position as a Program Support Assistant and due to her performance issues.

With regard to claim (1), S1 denied hitting Complainant’s hand and instead stated that she
might have touched Complainant’s hand in the course of a conversation. S1 indicated that
Complainant never complained to her about the incident. Complainant does not dispute this.

With regard to claim (2), S1 indicated that during a conversation with Complainant about her
performance, S1 felt that she was not paying attention and, thus, S1 put her hands on
Complainant’s shoulder so that they were looking in each other’s eyes as they were talking. S1
stated that she had done the same to her other employees as well for emphasis. S1 denied that
she shook Complainant.

With regard to claim (3), S1 stated that Complainant was not able to complete her Competence
Assessment Checklist during her initial 60 days of her position, i.e., not able to successfully
demonstrate competency in her basic duties as a Program Support Assistant. Thus, S1
indicated that on the incident date, S1 gave Complainant a memo and a copy of the
Competency Assessment Checklist and told her that if she was not able to meet the minimum
requirements outlined therein by June 30, 2010, she would be placed on a performance
improvement plan. S1 noted that Complainant was able to complete her duty requirements.

With regard to claim (4), S1 denied having any plan to terminate Complainant or making such
comments to any employees. We note that Complainant merely indicated that she was told by
her coworker (C1) that another coworker (C2) told C1 that S1 was planning to terminate her.
C2 denied telling C1 about S1’s comment or having any knowledge about S1’s plan to
terminate Complainant.

With regard to claim (5), S1 acknowledged making the alleged remarks but denied
Complainant’s race was a factor. Rather, S1 indicated that on the incident date, S1 was very
upset and frustrated due to Complainant’s failure to complete her task, i.e., providing S1 with
a certain document for the audit. S1 indicated that since Complainant continued to have
performance issues, if she found a suitable position in another office, before her performance
rating was due, S1 would not have to give her an unsatisfactory rating. S1 stated that S1
0120132486

4
could, at that point, just give Complainant a satisfactory evaluation based on her overall work
with S1.

With regard to claim (6), S1 stated that on the incident date, Complainant was assign to create
handouts for a meeting of the Executive Counselor Governing Board. But, indicated S1,
Complainant printed the documents out of order, improperly sized, missing pages, and with
extra copies. Later, stated S1, S1 told Complainant in private that she wasted paper and made
her office look stupid. S1 stated that she used this expression (made the office look stupid) to
her other employees as well when she felt they had not done their work properly. S1 indicated
that Complainant’s race was not a factor.

With regard to claim (7), S1 denied verbally abusing Complainant on the date of the incident.
S1 indicated that she observed a volunteer working in Complainant’s office and S1 merely told
Complainant that she could not use a volunteer as S1 already instructed her not to do so at the
beginning of the summer.

With regard to claim (8), S1 acknowledged S1’s sending of the email to Complainant,
concerning her effort in finding another position. S1 stated that she was trying to get an idea of
how many evaluations S1 would have to do at the end of the fiscal year.

With regard to claim (9), S1 did not recall the alleged incident.

With regard to claim (10), Complainant claimed that although she was advised about the
meeting concerning her evaluation, it was later canceled. S1 indicated that scheduling the
meeting was a routine part of the evaluation process and not based on Complainant’s race.
The subject meeting was however canceled, stated S1, after the instant complaint was filed.

With regard to claim (11), S1 denied yelling at Complainant on the incident date.

With regard to claim (12), S1 indicated that S2 canceled the scheduled meeting.

With regard to claim (13), Complainant claimed that S1 scheduled her to meet with S2 to
intimidate her and S1 did not show up for the meeting. S1, however, indicated that S1 had no
involvement setting up the subject meeting and, thus, S1 did not attend the meeting. S2
indicated that he discussed with Complainant about getting a temporary detail to another
position away from S1 but she declined. The record indicates that S1 no longer supervised
Complainant after October, 2010, and retired from her position at the Agency in January,
2011.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. We find that none
appear on their face to be discriminatory and taken together are not sufficiently severe or
pervasive so as to constitute a hostile work environment. Complainant acknowledges that she
did have some performance issues during the relevant time period at issue. We find that
0120132486

5
Complainant failed to show that she was treated less favorably than a similarly situated
employee under similar circumstances. Based on the foregoing, we find that Complainant has
failed to show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final order finding no discrimination 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”
0120132486

6
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

Date
March 11, 2015