Donette A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 16, 2020

2019002934 (E.E.O.C. Jun. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donette A.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002934 Agency No. 200P-0678-2018100984 DECISION On April 11, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 31, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Program Support Clerk, GS-4, at the Agency’s Veteran's Affairs Medical Center in Tucson, Arizona. On January 10, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability and age (51) when: 1. On an ongoing basis, her supervisor denied Complainant’s requests to change her days off. 2. Beginning in October 2017, Complainant was subjected to a hostile work environment as evidenced by the following: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019002934 2 • she received a proposed suspension; • her supervisor allowed Complainant’s co-worker to call Complainant “stupid”; • her supervisor blocked awards for which Complainant was nominated; • despite her education and expertise in computer software, she is punished for recognizing computer related errors; • her supervisor constantly tried to punish Complainant for conduct for which her co- workers were not similarly punished; • her supervisor did not consider Complainant’s witnesses in a case regarding a near assault by a co-worker; • her supervisor did not educate Complainant concerning correct procedures for which she is then written up; • her supervisor ignored her requests for help; • her supervisor publicly accused Complainant of starting rumors about the supervisor; • her supervisor was given an item to give to Complainant but never did so; • her supervisor refused to schedule anyone to work with Complainant and gave her co-workers days off on the busiest days so that Complainant had to work alone; • her supervisor threatened to change Complainant’s pay status from GS4 to WG4; • her supervisor scheduled for Complainant’s office to be redone during Complainant’s shift resulting in Complainant not being able to work, and she was then written up for not working; • her supervisor did not give Complainant time to complete a project requested by an Agency director; and • her supervisor told Complainant she had to start wearing a uniform although other co-workers were not required to do so. After an 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). 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), finding no discrimination. The instant appeal followed. 2019002934 3 ANALYSIS AND FINDINGS 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. (Aug. 5, 2015) (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 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once an agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). According to Complainant, she was diagnosed with post-traumatic stress disorder in 1991 and bi- polar disorder in 1982.2 She stated she takes medication for these conditions. She also indicated she fractured her left femur in the Army and was diagnosed with nerve damage in her left wrist in 2007. Complainant indicated that her disabilities did not restrict her activities at work and she did not request any accommodations. While Complainant believed her supervisor was aware of her disabilities because she had access to her personnel records, the supervisor denied any knowledge of Complainant’s medical conditions and there is no evidence in the record to the contrary. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 2019002934 4 Regarding claim 1, the record indicates that sometime in March 2018, Complainant requested to change her days off. Complainant’s supervisor (age not identified in the record, but Complainant described her as being in her 30s) testified that, at the time, Agency management had determined that because the department in which Complainant worked had a high rate of turnover, all employees on all shifts would be provided cross-training to ensure adequate rotation. However, by the time employees had been trained appropriately, several staff again left their positions. Consequently, management placed a hold on the rotation of work schedules in order to provide full staffing for all shift times. According to Complainant’s supervisor, because there was no other employee available to cover Complainant’s shift times, her request to change her schedule was denied. Complainant has failed to prove, by a preponderance of the evidence, that management’s proffered legitimate reasons for the denial of her schedule change request was pretext designed to mask discriminatory animus based on her disability or age. Harassment To establish a claim of hostile work environment, 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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disabilities or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In claim 2, Complainant alleges that her supervisor subjected her to a hostile work environment as evidenced by enumerated incidents of alleged harassment occurring on unspecified dates beginning in October 2017. However, Complainant has failed to provide any evidence that the incidents cited in the complaint, if they occurred as Complainant alleged, were motivated by discriminatory factors. Complainant’s supervisor denies issuing Complainant a proposed suspension or that she was aware of any mistreatment of Complainant by her colleagues. The record contains no evidence of a proposed suspension, or any other discipline Complainant claims to have received. Complainant alleges that her supervisor threatened to change Complainant’s pay grade from GS-4 to WG-4 and that she was required to wear a uniform. Agency witnesses indicated that all employees received new uniforms and were required to wear them. 2019002934 5 The record evidence further shows that there was some discussion of reclassifying positions for which employees including Complainant were invited to apply. Complainant, however, did not apply for a reclassified position and her pay grade was not altered. The image which emerges from considering the totality of the record is that there were conflicts and tensions with the supervisor’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or even autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the supervisor was motivated by discriminatory animus. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding of no discrimination, for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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). 2019002934 6 All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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. 2019002934 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s 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 June 16, 2020 Date