Joi J.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120181604 (E.E.O.C. Sep. 19, 2019)

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

Joi J.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181604

Hearing No. 461-2017-00095X

Agency No. 200305022016103722

DECISION

On March 12, 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
March 12, 2018, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cook at the Agency’s
Alexandria VA Health Care System in Alexandria, Louisiana. The Food Service Cook Supervisor
(Sl) was Complainant’s first-level supervisor. The Nutrition and Food Service Chief (S2)
supervised Complainant at the second-level. From Sunday through Wednesday, the Motor Vehicle
Operator (AS1) served as Complainant’s acting first level supervisor.

On October 4, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and age (over 40) 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 October 19, 2015, her coworker (CW) yelled at her, used profanity, and
tried to entice her into a confrontation;
2. On October 19, 2015, CW followed her around the kitchen work area;
3. Beginning in October 2015, CW refused to communicate with her and failed
to cooperate with her concerning the preparation of patient meals;
4. On April 7, 2016, CW used profanity and accused her of not helping him;
5. On April 28, 2016, CW used profanity, yelled at her, and threatened her;
6. On April 29, 2016, during a meeting with management, CW yelled at her;
7. In April 2016, CW was overly concerned about Complainant's duties and
asked her coworkers what she was doing;
8. On May 7, 2016, Complainant's request for reassignment was denied;
9. On May 30, 2016, the acting supervisor failed to take action when she notified
him that CW sneaked up behind her and yelled at her;
10. On November 21, 2016, the acting supervisor failed to take action when she
notified him that CW refused to clean the grill and tray; and
11. On December 1, 2016, the acting supervisor failed to take action when she
notified him that CW falsely reported that she stole shrimp.

After 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 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.

The Agency found that Complainant was not subjected to unlawful discrimination when she was
allegedly denied reassignment as she contended in Claim 8. The record revealed that when, on
May 9, 2016, Complainant informed S1 that she needed to be reassigned from the kitchen because
CW was “dysfunctional,” S1 directed her to submit an updated resume to Human Resources (HR)
so she could be considered for other jobs. S1 stated, however, that before Complainant could be
placed, she suffered a job injury and was given a light duty position in which she remained at the
time of the complaint. Complainant admitted that her request was delayed and not denied. Further,
the Agency decided that this allegation would not be considered in its analysis of the harassment
claim since there was no evidence that Complainant’s protected traits were factors in the alleged
reassignment denial.

With respect to Complainant’s harassment claim which enveloped the allegations in Claims 1-7
and 9-11, the Agency determined that Complainant did not inform management that she was
subjected to harassment until May 9, 2016, and thus failed to take advantage of any preventive or
corrective opportunities provided by the Agency that could have stopped CW’s alleged behavior
in the kitchen. The Agency also found that once management was informed, management took
prompt and effective action when it convened a fact-finding inquiry and interviewed several
witnesses identified by Complainant, none of whom corroborated Complainant’s allegations.
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Some witnesses stated it was Complainant who engaged in inappropriate behavior, not CW. In
that management determined Complainant’s harassment contentions could not be substantiated,
the Agency found no discrimination.

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”).

On appeal, the Commission finds no error in the Agency’s rationale nor any independent reason
to disturb the Agency’s finding that Complainant was not subjected to discrimination or
harassment because of her race, sex, or age. Beyond her unsubstantiated beliefs, Complainant
provided no evidence that her protected traits motivated any discriminatory conduct by the Agency
or that their actions were a pretext to mask discrimination. Thus, we concur with the Agency’s
finding that Complainant failed to prove by a preponderance of the evidence that any alleged
Agency action was motivated by discrimination.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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.
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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.
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.

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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

September 19, 2019
Date