0120151388
06-28-2017
Matilda C.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matilda C.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151388
Agency No. 20DR-00SB-2014100940
DECISION
On March 9, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 30, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to discrimination and/or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to discrimination and/or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Director of Strategic Outreach and Communications, GS-15 at the Agency's VA Office of Small and Disadvantage Business Utilization in Washington, D.C. On March 31, 2014, 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), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On multiple occasions during the 2013 calendar year. Complainant's first-line supervisor denied Complainant's requests for additional resources, and indicated
that he would not approve another GS-14 level employee for her staff, unless she first fired the current GS-14 level employee on her staff;
2. During six occasions between May 2013 and March 14, 2014, when Complainant met with her first-line supervisor to request additional resources to complete the mission of her organization, her first-line supervisor decreased her resources, requiring Complainant and her staff to work excessive amounts of overtime;
3. In May 2013, Complainant claimed that her first-line supervisor instructed her colleague (Caucasian, male) not to discuss work related to a specific contract, after Complainant expressed concerns about the legality of the contract;
4. On July 19, 2013, Complainant's first-line supervisor leaned on Complainant's desk, yelled and cursed at her, while telling her she did not know what she was doing;
5. In August 2013, Complainant's first-line supervisor reassigned members of Complainant's staff to the newly appointed National Veterans Conference Director, thereby creating more work for Complainant;
6. On November 27, 2013, Complainant was rated "Fully Successful" on her annual performance appraisal, which negatively impacted her promotional opportunities and deprived her of awards and bonuses associated with a higher rating;
7. After Complainant challenged her 2013 annual performance rating, it took the Agency approximately two months to change her performance rating from "Fully Successful" to "Exceptional";
8. In December 2013, Complainant learned that her first-line supervisor had invited other employees to accompany him on work-related trips; he did not extend similar invitations to Complainant, even though the excursions were related to her assigned job duties;
9. In January 2014, Complainant's first-line supervisor instructed her to make a selection for her deputy position from a list that included two of his friends;
10. On February 28, 2014, Complainant's first-line supervisor told Complainant that it was difficult to support her current GS-15 supervisory position;
11. During an April 15, 2014, staff meeting Complainant's first-line supervisor singled Complainant out for the amount of overtime incurred by her staff;
12. On April 18, 2014, Complainant's first-line supervisor told Complainant to execute a task/event for his friend for a contract which had not been awarded and that did not qualify for a SOL source, and when Complainant questioned the legality of the assignment, he used expletives and told her he wanted it "done now;"
13. On April 23, 2014, Complainant learned she was not selected for the Corporate Leadership training because her second-line supervisor provided a "mid-level" recommendation, after promising to provide her a "solid recommendation;"
14. On April 29, 2014, Complainant's first-line supervisor insinuated that Complainant's second-line supervisor had disclosed information pertaining to Complainant's confidential mediation session, and questioned Complainant's commitment to the success of the National Veterans Conference;
15. On April 30, 2014, Complainant's first-line supervisor directed Complainant to build a website, and when she told him she did not have the staff or the ability to commit to such a project, he attempted to involve another individual and advised that individual not to mention anything to Complainant about the meeting, thus undermining Complainant's authority;
16. On May 6, 2014, when Complainant spoke with her first-line supervisor about her "toxic" work environment and requested his support to move to another position, he attacked her character and then called a co-worker into the office and allowed the co-worker to berate Complainant;
17. On June 25, 2014, Complainant's first-line supervisor appointed someone other than Complainant to serve as Acting Executive Director during his absence, from June 26, 2014 to July 14, 2014;
18. In 2014, Complainant's first-line supervisor asked a subordinate employee to watch and report on Complainant's speaking engagements;
19. On July 29, 2014, Complainant's first-line supervisor insulted Complainant by asking why she was at an event; and
20. The following day, Complainant's first-line supervisor sent Complainant an email stating that she had "abandoned" a different event.
At the conclusion of the investigation, the Agency provided Complainant 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). In accordance with Complainant's request, 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 or harassment as alleged. Specifically, the Agency indicated that it articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant was a very good worker but variables that were completely outside of her control - such as multiple contractors leaving just months prior to the event, Complainant not adequately planning for contingencies, or efficiently manage crises as they arose lead to her supervisor's micromanagement. Complainant's supervisor indicated that he was required to directly intervene in conference planning, and ultimately the project went over budget. Complainant's supervisor indicated that Complainant was rated "Exceptional" in seven of the nine performance elements. She was rated "Fully Successful" in the two remaining performance elements due to concerns about the quality and timeliness of her preparations for the office's signature event. As such, she was originally rated "Fully Successful." Complainant appealed the rating and upon review it was raised to "Exceptional."
To show that the Agency's nondiscriminatory reasons were pretext for discrimination, Complainant argued that the Directors who were of different races, genders and who had not engaged in protected EEO activity received "Exceptional" ratings. The evidence showed however that this was not the case. The record demonstrated that members of Complainant's protected class were also rated "Exceptional." Moreover, the Agency maintained that Complainant challenged her evaluation and the rating was changed to "Exceptional." Additionally, the Agency retroactively awarded Complainant a 1% performance bonus, which was commensurate with the bonus received by similarly situated employees who were also rated "Exceptional."
Complainant maintained that she did not receive "an adequate remedy" because Management changed her 2013 performance rating simply to appease her. Even accepting this assertion as true, the Agency maintained that Complainant did not present credible evidence that the original rating was motivated by discriminatory animus. To the contrary, Management maintained that its willingness to take prompt remedial action belies any inference of discriminatory intent.
With respect to Complainant's hostile workplace harassment claim, the Agency argued that Complainant did not show that the challenged conduct was motivated by discriminatory or retaliatory animus. Management indicated that when Complainant requested a Deputy Director, Complainant's supervisor gave her the option of terminating a current GS-14 employee to get a Deputy Director or keeping the GS-14 employee and working the best way that they could. Management maintained that Complainant made the decision to keep the employee. So, there was a response to her request for a Deputy Director.
Further, Complainant asserted that her supervisor was disrespectful and often yelled and cursed at her which created a hostile work environment. Witness testimony supported Complainant's allegations and added that the supervisor was indiscriminately rude and vulgar toward all of his subordinates. Even assuming that Complainant's supervisor was rude to everyone and that this was part of his general management style, the Agency maintained that his behavior had nothing to do with anyone's protected bases. Therefore, the Agency found that Complainant did not establish her hostile work environment claim.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the FAD is defective because it ignores evidence of discrimination and retaliation, erroneously applies an assumption of nondiscriminatory motive with regard to management changing her performance appraisal, and is based on a record which excludes the report of the AIB investigation, evidence that is crucial to a fully informed determination of Claim 4 (the investigation allegedly showed that Complainant's supervisor was going to receive a Letter of Admonishment for his behavior). For these reasons, OFO should reverse the FAD or, in the alternative, order a supplemental investigation that includes the AIB investigation report and all related documentary and testimonial evidence.
In response, the Agency, among other things, requests that the Commission uphold the FAD and dismiss the subject appeal.
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination and reprisal with regard to her claims, the Agency articulated legitimate, nondiscriminatory reasons for its actions, and the record does not show that Complainant established discriminatory animus was involved.
Furthermore, with respect to Complainant's claim of hostile work environment, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Moreover, we find that the interactions between Complainant and her supervisor were for the most part work-related interactions and we find no evidence that they were based on her protected bases. While Complainant and her supervisor had different ideas about management, work load, assignments, staff, priorities, hiring, firing, and other topics, we find that Complainant did not demonstrate that discriminatory animus was involved.
Finally, with respect to Complainant's allegations on appeal, we note that even if we considered the fact that Complainant's supervisor was going to be served with a Letter of Admonishment, Complainant has not shown that the investigation determined that the supervisor's behavior was due to discriminatory animus. As was noted above, witness testimony indicated that the supervisor was indiscriminately rude and vulgar toward all of his subordinates. We find that other than Complainant's conclusory statements on appeal she has not provided any evidence that her supervisor's actions were based on discriminatory animus.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant was not subjected to discrimination and/or harassment.
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.
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
__6/28/17________________
Date
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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0120151388