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

Equal Employment Opportunity Commission

Sep 18, 2015

01-2013-0809-0500 (E.E.O.C. Sep. 18, 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. 0120130809

Agency No. 200P-0346-2011103966

DECISION

Complainant filed an appeal from the Agency’s November 26, 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 Rating Veterans Service Representative (RVSR) at the Agency’s
Regional Office in Seattle, Washington. On August 17, 2011, Complainant filed an EEO
complaint in which she alleged that the Disability Rating Activity Sight Coach – her immediate
supervisor (S1), the Assistant Service Center Manager – her second-line supervisor (S2), and a
Human Resources Specialist (HRS) had discriminated against her on the bases of race
(African-American), sex (female), disability (moderate depression), and reprisal (prior
protected EEO activity) by denying her repeated requests for reasonable accommodation,
denying her certain terms and conditions of employment, and harassing her between February
and August 2011.

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Complainant initially averred that between May and July of 2011, she had submitted several
requests for a reasonable accommodation to HRS, which HRS either delayed or denied. IR
241, 261-63, 268-269, 297, 347. 351-53, According to HRS, the essential functions of her
RVSR position were to provide ratings on cases involving disabled veterans that would
subsequently be reviewed by a Decision Review Officer (DRO). Complainant was assigned to
DRAS (acronym unspecified), the team responsible for processing claims submitted by active
duty service members just before they transitioned to veteran status. These cases had shorter
time frames than those involving veterans. According to HRS, Complainant was able to
perform the essential functions of her position, but meeting the performance standards on the
DRAS team was too stressful for her. In an effort to accommodate her, the HRS looked for an
RVSR position on a team that processed cases from disabled veterans, a less stressful situation.
Such a position did not become available until December of 2011. In the interim, HRS created
a number of temporary accommodations that enabled Complainant to continue to perform her
RVSR duties or allowed her to work on special projects. IR 219, 222-23, 298-300, 317-18,
324-26, 334-42, 396. Complainant had sought reassignment to a DRO position in July 2011,
but HRS had to deny her request because the DRO position was at a higher-level than the
RVSR position, and could not be filled without merit-based competition. IR 222, 224, 310-11,
343-44, 393, 397.

Complainant next averred that between February and June 2011, S1 unfavorably manipulated
the terms and conditions of her employment by denying her detail time, changing her
productivity standard from 3.5 decisions rated per day to 4.0 decisions rated per day, and
denying her eligibility for telework. IR 245, 248, 253, 258. Records submitted by the Agency
indicated that every member of the DRAS team had details denied during that four-month
period, that the average exclusion ranged on average from 250 to 270 hours, and that
Complainant was denied approximately 278 detail hours, which was slightly above the average
for the DRAS team. IR 207-08, 283-96. As to the increase in the performance standard, S1,
S2, and HRS acknowledged that Complainant had been on a performance improvement plan
when the change was made in May of 2011, and should still have been held to the 3.5
standard. They also acknowledged that as soon as the error was pointed out, it was promptly
corrected with no harm being done to Complainant. IR 209, 220, 231. Regarding telework,
all three officials testified that since Complainant was on a performance improvement plan at
the time she requested telework, she was not eligible. IR 209-11, 222, 231.

The remaining incidents comprise a claim of hostile environment. Complainant averred that
S1 harassed her by issuing a warning about arriving to work late, forwarding her concerns
about inconsistent guidance from the DRO, to whom she submitted her rating decisions, to the
DRO herself, placing her on a performance improvement plan, allowing the DRO to address
her rating rebuttal concerns in front of the entire team, subjecting her work products to
excessive scrutiny by other team members, and sending an email to DRAS team members
informing them that she was no longer on the team. IR 249-60, 265-67, 270, 364-71.
Regarding the report of late arrivals, S1 and S2 testified that a Sight Coach assigned to the day
shift had noticed Complainant arriving late for work and had reported this to S2, and that since
S1 was her immediate supervisor, she was the one who had issued the warning. IR 208, 230.
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With respect to the incident concerning the DRO, S1 replied that she did not have the technical
expertise to answer the questions Complainant was raising, so she simply deferred to the DRO
as the subject matter expert. IR 209. As to the performance improvement plan, S1 averred the
plan was necessary because Complainant’s production and the quality of her rating decisions
had fallen below the standards required for her position, and that the purpose of the plan was
to provide her with the tools and guidance she needed get her performance back up to the
standards. IR 210, 212, 221, 231-32. With regard to the DRO discussing Complainant’s
questions in front of the DRAS team, S1 testified that these group discussions were utilized
regularly as a training and learning tool for all the RVSRs, and that no names or other
information identifying the employees was shared with the DRO or the team. IR 210. As to
Complainant’s allegation of excessive scrutiny, S1 denied that subsequent reviews had been
submitted for Complainant’s case files, and that any errors identified were simply returned to
Complainant for correction. IR 211-12. Concerning the email regarding Complainant’s
departure from the DRAS team, S1 averred that on August 4, 2011, she removed Complainant
from her duty assignment roster because at that point, she was being given an interim
accommodation that did not entail preparing ratings decisions. S1 further testified that she
added Complainant’s name back to the roster under the heading of “special projects,” so that
she could continue to feel that she was a part of the team. IR 213.

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). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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).
Consequently, regardless of whether she is alleging disparate treatment or harassment,
Complainant must prove, by a preponderance of the evidence, that either S1, S2, or HRS was
motivated by unlawful considerations of her gender, disability, race, or previous EEO activity
when they took the actions at issue in her complaint. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993).

Complainant must do more to satisfy her burden than merely express her belief about the
motives of S1, S2, and HRS. She must present evidence of those motives. She can do so by
pointing to discriminatory statements or past personal treatment attributable to those
individuals, comparative or statistical data showing differences in treatment across gender,
disability and racial lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
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evidentiary record. If she fails to establish the existence of discriminatory intent on the part of
at least one of the responding management officials, the Commission would not need to inquire
as to whether the incidents complained of constitute acts of harassment or separate acts of
discrimination under disparate treatment theory.

The reasons articulated by S1, S2, and HRS in support of their actions in each of the incidents
described above have been meticulously documented by emails and contemporaneously
prepared memoranda and reports. The Agency did accommodate Complainant’s disability by
reassigning her to a different team on which she could continue to function as an RVSR, but in
a less stressful work environment. Rather than wait until a full time position to which
Complainant could be reassigned became vacant, the HRS placed Complainant into a number
of interim positions in order to reduce her work-related stress, and promptly effected a
permanent reassignment when a vacancy finally opened up in December 2011. S1 did not
deny Complainant’s detail requests any more than she denied detail requests from other team
members, and had promptly corrected the error which caused Complainant’s productivity
standard to increase from 3.5 to 4.0. S1 had also put Complainant on a performance
improvement plan in order to reverse the decline of her performance in terms of productivity
and quality but did not subject Complainant’s rating decision drafts to multiple reviews. S1
deferred to the DRO when she could not answer questions from Complainant that fell within
the DRO’s subject matter expertise. She took prompt corrective action when it was brought to
her attention that Complainant had been arriving late. And finally, she did not tell DRAS team
members that Complainant had left the team in August of 2011. That did not occur until
December, when Complainant was formally reassigned.

While Complainant asserts that the actions taken by S1, S2, and HRS were motivated by
unlawful considerations of her sex, disability, race, and prior 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. We
therefore find, as did the Agency, that Complainant has not met her burden to show that she
had been subjected to discrimination or discriminatory harassment on any basis in connection
with the fourteen incidents comprising her claim.

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:

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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
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
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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 18, 2015
Date