Iris D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 11, 2019

2019000069 (E.E.O.C. Apr. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Iris D.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019000069

Agency No. 200I05442017102441

DECISION

On July 30, 2018, 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
July 2, 2018, final decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse at the
Agency’s Acute Hospital/Clinic SVC facility in Columbia, South Carolina.

On May 2, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), religion (Christianity/Baptist), color
(Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:

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.
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1. On August 6, 2016, the Chief of Human Resources (HR) uploaded to
Complainant's Electronic Personnel Folder (eOPF) approximately six Standard
Form (SF) 50s" with "manipulated" pay amounts, salaries, nurse level, grade and
same approval dates.
2. On September 1, 2016, management charged Complainant with being Absent
Without Leave (AWOL).
3. In a letter dated February 6, 2017, the Interim Medical Center Director, suspended
Complainant.
4. On February 16 and 17, 2017, the Associate Nurse Executive charged
Complainant with being AWOL.
5. On March 13, 2017, Complainant was forced to resign from her position due to a
hostile work environment.

At the conclusion of its investigation into the complaint, 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).

The Agency’s decision concluded that Complainant failed to prove that the Agency subjected her
to discrimination as alleged. Specifically, the Agency found that Agency officials articulated
legitimate, nondiscriminatory reasons for charging Complainant with being AWOL and for
suspending her, namely that Complainant was absent beyond the amount of time for which she
had leave, and she gave supervisory instructions to her coworkers and disregarded the
instructions of her own supervisor. The Agency further found that Complainant failed to show
that the Agency’s articulated reasons were a pretext.

With regard to harassment the Agency found that Complainant failed to show the actions
complained of were based on her protected bases. With regard to her claim of constructive
discharge, the Agency found that Complainant failed to show that she was subjected to
intolerable working conditions caused by discriminatory conduct.

The instant appeal followed.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Disparate Treatment

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983).

Here, we find that Agency officials articulated legitimate, nondiscriminatory reasons for their
actions in charging Complainant with AWOL on two occasions and for issuing Complainant a
suspension in February 2017. With regard to claim 2, Complainant’s acting supervisor
(“Supervisor 1”) (Caucasian, Christian, white) averred that on the date in question an incident
occurred at work that resulted in the police being called to the workplace.

It was after the police response that [Complainant] called me on my VA Cell
phone. I asked her to come to my office . . . so that I could better understand what
was going on. She adamantly refused to come to me and discuss and stated, “I just
need to leave!” I told her I wanted to help her feel safe here and again she replied,
“I just need to leave.” She did not request leave (i.e., did not ask for Emergency
AL or SL), only stated she needed to leave. [Parentheses in original].

Supervisor 1 further averred that after Complainant was charged with being AWOL,
Complainant contacted Supervisor saying that she felt that her conversation with Supervisor 1
constituted a formal request for permission to leave due to feeling unsafe at work. Supervisor 1
sent Complainant an email stating:

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I apologize for the miscommunication. However, when you called me in distress
you did not request leave of any type. When I asked if you would come to my
office to discuss you declined. You stated you needed to leave. As for the
subsequent days, there was no further contact with me and I cannot verify any
calls regarding that day of missed work. I am sorry for the confusion, however, as
a supervisor, it is my expectation that when an employee wishes to leave
unexpectedly they must request and state which type of leave they desire to be
granted. . .. Otherwise it is AWOL until that is resolved with the supervisor.

With regard to claim 3, the December 15, 2016 notice of proposed suspension notified
Complainant that she would be suspended for two days for Inappropriate Conduct. The notice
listed four instances of Complainant giving orders to coworkers despite the fact Complainant
was not a supervisor and was not entitled to give orders. The fifth instance involved Complainant
refusing to answer a direct question from her supervisor and walking away. With regard to claim
4, Complainant’s then-supervisor (“Supervisor 2”) (Caucasian, Christian/Presbyterian, white)
averred that Complainant was charged with being AWOL “possibly for 15 minutes after we
exhausted the employee's sick leave balance when she called in sick for 2 days without sufficient
annual leave. . . . I let the employee know that she did not have sufficient leave to cover the
absence.”

The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record, we find that Complainant has failed to
meet this burden.

With regard to claim 2, Complainant averred that she asked Supervisor 1 for permission to leave
and that Supervisor 1 granted such permission, but that Complainant subsequently learned the
leave had been changed to AWOL. Complainant maintained that after talking it over with
Supervisor 1, Supervisor 1 “retracted and stated she did give me permission to leave.” With
regard to claim 3, Complainant simply denied the allegations in the notice. With regard to both
claims 3 & 4, when asked what her response was to management’s articulated reasons for its
actions, Complainant simply wrote, “Requesting whistle blower protection and want legal
counsel present. Requesting specific management official name/names and statement allegation
documentation.” Complainant’s responses fail to address the Agency’s articulated reasons for its
actions and fail to show that those reasons were pretextual, or that the Agency harbored any
animus towards her protected bases.

Harassment

Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) we find that
Complainant may not include her suspension and the two charges of AWOL as part of her claim
of hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that
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includes such incidents is precluded based on our finding that complainant failed to establish that
the suspension or the AWOL charges were motivated by discriminatory animus or retaliatory
motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September
21, 2000). As such, the sole remaining incident of harassment consists of the adding of various
documents to her electronic personnel folder.

In considering whether such an action constitutes harassment, the Commission notes that in
Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S.
57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an
alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002,
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of
harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by
the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such
conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did
perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Following a review of the record we find that Complainant has not shown that having various
documents uploaded to her electronic personnel folder is the type of action that is sufficiently
severe to alter the conditions of Complainant’s employment or create a hostile work
environment. In addition, we find that Complainant has not shown that the action either involved
or was based on her protected bases.

Constructive Discharge

With regard to Complainant's allegation that she was forced to resign due to the Agency's
discriminatory actions, such an allegation amounts to a claim that she was constructively
discharged. The Commission notes that the central question in a constructive discharge case is
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whether the employer, through its unlawful discriminatory behavior, made the employee's
working conditions so difficult that any reasonable person in the employee's position would feel
compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17,
2002). As stated above, Complainant has not shown that the Agency's actions were motivated by
discriminatory or retaliatory animus. We therefore find that Complainant cannot establish the
necessary elements to prove constructive discharge.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not established, by a preponderance
of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.

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). 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.
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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. 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

April 11, 2019
Date