Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-2332-0500 (E.E.O.C. Aug. 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
(Veterans Benefits Administration),
Agency.

Appeal No. 0120132332

Hearing No. 560201100129X

Agency No. 200303312010101698

DECISION
On May 20, 2013, Complainant filed an appeal from the Agency’s April 9, 2013, 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

. 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 decision and DISMISSES a portion of the appeal.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant
at the Agency’s facility in St. Louis, Missouri. On May 11, 2010, Complainant filed an EEO
complaint alleging that the Agency discriminated against her and subjected her to a hostile
work environment on the bases of race (African-American) and sex (female) when:

1. Beginning November 1, 2009, management did not pay Complainant a rate of pay
commensurate with her previous position;
2. Beginning November 1, 2009, management did not give Complainant a mentor for
three weeks of mentoring, while it did so for other employees;
3. On January 27, 2010, management publicly yelled that since Complainant was now
a GS-06, “she would be held accountable for GS-6 standards;”
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4. On February 3, 17, 19, and March 3, 2010, management denied Complainant’s
request for training;
5. On February 9, 2010, management, “left [Complainant] with no alternative than to
request a downgrade to a GS-5;” and
6. On February 10, 2010, management condoned the actions of Complainant’s mentor
who told Complainant, “Don’t f___ with me” and told Complainant that
management told him, “to check her work and find whatever he could to use against
her.”

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
but subsequently withdrew her request. Consequently, 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.

On appeal, Complainant alleges, for the first time, that she was subjected to discrimination
based on reprisal for 17 new claims. The Commission finds that Complainant may not amend
her complaint to add these incidents for the first time on appeal. See Valdez v. U.S. Postal
Serv.

, EEOC Appeal No. 01A00196 (May 11, 2000) (absent a compelling reason, a
complainant may not add a new basis on appeal). As to the merits of her remaining claims, on
appeal, Complainant alleges she was not made aware of what grade she had been hired at prior
to receiving her first paycheck. She has further stated that she was unable to maintain the
standards of the Agency because she was in a training period and was misguided by her
supervisor. Finally, she contends the Agency had a preconception about her having an attitude
based on discrimination.

ANALYSIS AND FINDINGS
Initially, we find that with respect to claim (5), the Agency’s final decision provided
Complainant appeal rights to the MSPB, not the EEOC, as this claim alleges a constructive
demotion. As such, under the Commission’s regulations, Complainant improperly filed her
appeal of this claim from the Agency's final decision on a mixed-case complaint with the
EEOC, claim (5) is therefore dismissed. See Black v. Dep’t of Homeland Security

, EEOC
Appeal No. 0120112324 (Sept. 12, 2012).
Next, as this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
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of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

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).
With respect to claim (1), the record reflects that the Agency advertised a vacancy for the
position of Claims Assistant at a GS-5/6 level in October 2009. The record also shows that
although Complainant was promoted to the GS-6 level in her previous position before being
selected, she was a GS-5 at the time she applied for the position at issue. Further, the Agency
did not use the GS-6 certification list in making their selections, and as such, Complainant was
selected for the position at issue from the GS-5 list. Although, Complainant alleges she should
have been hired as a GS-6 or, alternatively, hired as a GS-5 but at a step level where she
would have received the same pay as a GS-6, the record shows Complainant was sent a letter
confirming her selection and notifying her that she would be hired as a GS-5, Step 2. She was
also notified of her salary at this time. Further, Complainant was promoted to the GS-6 level in
February 2010. Accordingly, we find that Complainant has not shown that the Agency’s
articulated reasons for its actions were motivated by discriminatory animus.

With respect to claim (2), Complainant alleges management did not provide her with a mentor
for three weeks of mentoring. We note, however, that while the record shows that each new
employee is assigned a mentor, there is no evidence to show that it is Agency policy to assign
employees a mentor for any specific three week period. Further, the record shows that
Complainant was, in fact, assigned a number of mentors to assist in training her in the position
at issue. Accordingly, we find that Complainant has not shown that the Agency’s actions were
motivated by discriminatory animus.

With respect to claim (3), Complainant alleges that her first line supervisor (S1) publicly yelled
that since Complainant was now a GS-6, “she would be held accountable for GS-6 standards.”
The record shows, however, that Complainant’s second-line supervisor (S2) and one of her
mentors (M1) stated that they heard the interaction at issue and that S1 did not yell at
Complainant. Rather, S1 was talking to a group of employees about the standards and numbers
required at different grade levels when Complainant asked a question about lowering the
standards. They stated that S1 responded by making a general statement that these were the
production standards for the grade level. S2 and M1 deny that S1 yelled at Complainant or
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otherwise single her out. Accordingly, we find that Complainant has not shown that she was
subjected to unlawful discrimination.

With respect to claim (4), Complainant alleges that at various points management denied her
training opportunities which kept her from being successful in her job. Specifically,
Complainant alleges that S1 denied her training but that a White male employee (CW1) who
started at the same time as Complainant was provided with more training. The record,
however, shows that Complainant received extensive training on a wide variety of topics
relevant to her job duties. Further, S1 denied Complainant’s allegation that CW1 received
more training than Complainant and stated that Complainant actually received the most training
because she struggled so much with her performance. Additionally, S2 stated that he believed
Complainant rushed through her work and took it personally when her assigned mentors
pointed errors out to her, and as a result, mentors did not want to work with her. M1 stated
that Complainant also received classroom training when she started in her position but she did
not pay attention during this training and was disruptive with her cell phone usage.
Accordingly, we find that Complainant has not shown that she was subjected to unlawful race
or sex discrimination.

With respect to claim (6), Complainant alleges that management condoned M1 telling her,
“Don’t f___ with me” and that he told her that S1 told him, “to check her work and find
whatever he could to use against her.” M1 does not deny that he made a statement to this effect
and that he lost his temper. He stated that S1 reprimanded him and stated that the Agency had
a zero tolerance policy for this type of behavior. S1 and M1 both stated that S1 removed M1 as
Complainant’s mentor following this incident and advised M1 not to speak to Complainant. M1
denied that S1 ever told him to check Complainant’s work. He stated that since Complainant
was on a probationary period, she was subject to 100 percent review of her work to ensure
there were not mistakes. There is no evidence in the record to support Complainant’s
contention that management condoned M1’s statements or that the statement was motivated by
discrimination. The record does show that management took immediate action to address the
situation and reprimand M1. They also removed M1 as Complainant’s mentor and prohibited
M1 from interacting with Complainant further. Further, this single incident is not severe or
pervasive enough to state a claim of a hostile work environment See Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th

Cir. 1982).
Finally, insofar as Complainant is alleging that the claims addressed above constitute
harassment, the Commission finds that since she failed to refute the legitimate,
nondiscriminatory reasons proffered by the Agency for its actions, she necessarily also failed
to establish that such actions were taken on the basis of her membership in the protected
classes. Accordingly, Complainant failed to establish that she was subjected to a discriminatory
hostile work environment. See Bennett v. Department of the Navy

, EEOC Request No.
05980746 (September 19, 2000).

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CONCLUSION
Therefore, the Agency’s final order is AFFIRMED and the appeal from claim (5) is
DISMISSED.

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.
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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

August 14, 2015
Date