Tricia B.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 17, 2017

0120150474 (E.E.O.C. Nov. 17, 2017)

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

Tricia B.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120150474

Hearing No. 450-2013-00063X

Agency No. 2003-0549-2012102109

DECISION

On November 17, 2014, 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
October 24, 2014, final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst,
GS-11, in the Quality Management (QM) department at the Agency’s Medical Center in Dallas,
Texas. On April 20, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment based on race (Black),
sex (female), color (black), age (48), and in reprisal for prior protected EEO activity 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 17, 2010, her first-line supervisor (S1), advised her that the former Acting
Director (AD), will not move her and to deal with it;
(2) on March 10 and 11, 2011, in a meeting, S1 yelled at her regarding correcting data;
(3) on March 25, 2011, in an unprofessional and nasty tone, S1 questioned her regarding
her work;
(4) on March 30, 2011, S1 corrected, yelled and micromanaged her during a morning
meeting;
(5) on March 31, 2011, S1 embarrassed her and was “rolled under the bus” while a
coworker took credit for work Complainant had previously developed;
(6) on November 15, 2011, during a meeting, an Agency attorney (A1) called the patient
Safety Personnel Officer, a “n….” The Medical Center Director (D1), and S1 did not
respond to the comment. D1 and S1 made comments about reading a book entitled
“Monkey.” Complainant believed the comment had racist overtones attached;
(7) on January 5, 2012, the Chief of QM (CH1), informed Complainant that the System
Redesign Coordinator (SRC), would like to move into her office because SRC
needed the office;
(8) on January 19, 2012, she learned that the position of Health System Specialist, GS-
0671-12, announcement number AH-11-SU-506777, was cancelled after she had
applied for it and been referred for consideration;
(9) on January 20, 2012, during a meeting, the Emergency Room (ER) Nurse Manager
(NM) informed D1 that his numbers were really low; he needed more staff and the
ER physicians work like “slaves in chains.” D1 kept the conversation going as if it
was perfectly normal to make racist comments in the meeting;
(10) on January 24, 2012, the Human Resources representative (HR) informed
Complainant that “it looks like her position would go down to GS-7;”
(11) on February 22, 2012, Complainant’s position was audited and re-written;
(12) on February 27, 2012, Complainant asserts she was “being forced out of her office”
to move her in with other African-American employees; and
(13) on March 25, 2012, she was reassigned from the position of Program Analyst, GS-
341-11/14 to Administrative Officer, GS-341-11/14.2

After the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, which was held on April 30, 2014, May 1, 2014,
and June 18, 2014. The AJ issued a decision on September 30, 2014. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove her claims as
alleged.

FACTUAL BACKGROUND

Claim 1 – August 17, 2010 Reassignment Denied

2 Claim 13 was also accepted as a claim involving a discrete act.
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Complainant alleged that she complained to management officials that her former supervisor
(S0) was harassing her but they would not move her because she was needed to analyze data.
Instead, they moved her from under S0’s supervision.

S1 and AD testified that Complainant requested a reassignment because of her unhappiness in
QM, but there were no positions outside of QM available. Both S1 and AD deny telling
Complainant to “deal with it.” Management officials testified that the Human Resources
department was notified that Complainant was requesting reassignment, should any positions
become available. S1 and AD also stated that Complainant’s allegations of harassment were
investigated but found to be meritless.

Claims 2-5 - March 10 and 11, 2011, S1 Yelled at Complainant About Correcting Data

With respect to Claim 2, Complainant asserted that S1 yelled at her in the presence of 30 to 40
people during one of their morning meetings.3 She complained to S1 that she believed this
incident to be harassment. Complainant further asserted that on March 25, 2011, S1 questioned
her about changing a chart in a “very unprofessional and nasty tone” in that she “screamed and
hollered at her like she was a child.” Complainant also asserted that on March 30, 2011, S1
yelled at her and told her the lines were not right on the dashboard. In addition, Complainant
asserted that S1 wanted to micromanage Complainant and required that she meet with S1 every
morning at the morning meeting to go over all the charts. Complainant also stated that on March
31, 2011, she was embarrassed by S1 in response to Complainant seeming unknowledgeable
about a chart that Complainant did not create and therefore, should not have been expected to
have much knowledge about. Complainant further claimed that she complained to S1, AD, and
S2 about feeling harassed by S1 but they failed to adequately respond to her complaint.

S1 generally denied yelling at Complainant. S1 also stated that Complainant does not like to be
corrected, and becomes defensive. Various management officials and other employees indicated
that S1 could be blunt with Complainant at times. The general testimony supports that S1 was
having issues with Complainant’s work on the “morning dashboard” and may have exhibited a
lack of professionalism. Most of the witnesses would not go so far as to describe S1’s treatment
toward Complainant as yelling.

Claims 6 and 9 - Racial Comments on November 15, 2011 and January 20, 2012, using the
terms “Nigger,” “Monkey,” and “Slaves in Chains.”

3 The record shows that one of Complainant’s primary tasks was assisting S1 with the
implementation of a new way of presenting data and trends concerning Quality Management
matters. This was referred to as the QM dashboard. Complainant was tasked with displaying
data in various, more easily accessible graphics. These data displays were presented by S1
during the daily morning management meetings.
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Complainant asserts that during the November 15, 2011 morning meeting, A1 called an
employee a “House Nigger,” and D1 and S1 made a comment about reading a book called
“Monkey;” finding it interesting. Complainant asserted that both comments had racist overtones.

A1 and management officials testified that at the morning meeting, a question came up about
management’s interaction with the Union. Management officials and A1 explained that someone
at the meeting raised the issue pertaining to when Union officials throw out racial slurs.
Allegedly, there were two African-American Union officials who had a tendency at times to use
racial slurs. A1 testified that he informed the employees at the morning meeting that in the event
a Union official called someone a “house N word, then as a management official, you should
immediately end the meeting and write up a Report of Contact….” A1 further testified that he
explained to the group at the morning meeting that no one had the right to use that kind of
language in the workplace. A1 further testified that he used the example of the “house ‘N’
word” because the Executive Vice-President had used that term before. A1 denied using the full
“N” word. He also denied calling anyone that term.

D1 and S1 do not remember discussing a book entitled “Monkey” at any time. However, S1
explains that that there is a management book entitled “Keep the Monkeys Off Your Back,” that
deals with teaching subordinates not to delegate up, and how to effectively be able to delegate to
staff. D1 and S1 do not recall ever discussing this management book. S1 further stated that the
book has nothing to do with race.

Complainant also asserted that on January 20, 2012, while she was displaying data regarding the
ER not meeting its designated wait-time targets, NM responded to D1 stating that the ER
numbers were not good because the staffing was low. According to Complainant, NM stated
that he “needed more staff. His doctors work like ‘slaves in chains.’” Complainant asserted that
she felt harassed by this statement.

D1 had no recollection of this meeting or the statement alleged. NM was not asked to provide
any testimony at the EEO investigative or hearing stages of the complaint process and there is no
further explanation of this incident by Complainant.

Claims 7 and 12 - January 5, 2012 Notification of Reassignment of Office Space

Complainant asserted that on January 5, 2012, CH1 advised her that she needed to move out of
her office because SRC needed a private office because his position involved sensitive and
confidential information. Complainant asserted that her position involved sensitive information
as well. Complainant also asserted that it was generally known that the initial plan for SRC’s
workspace prior to coming on board, was that he would work in the same open area with other
employees. Complainant speculated without specific evidence that after SRC started working
and realized that he would be sharing work space with a group of African-American nurses, he
requested a change in office space.

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CH1 stated that she did tell Complainant that her office was going to be needed by the System
Redesign Coordinator because the position involved sensitive information that required a
confidential workspace. CH1 also stated that she has moved various employees in her
department for various reasons and this decision was not motivated by Complainant’s race,
color, sex age, or prior EEO activity.

Claim 8 - January 19, 2012 Job Opening was Cancelled

Complainant asserted that D1 said the position at issue was cancelled because they did not have
funding for the position. Complainant claimed that when the position was funded an
unidentified Caucasian female was hired for the position. Complainant stated that she believes
this incident to be harassment.

CH1 testified that within days of posting the position as a GS-11/12, the Human Resources
department informed her that it could not be posted that way because it was a supervisory
position, and it had to be pulled and reposted as a GS-12. CH1 asserted that she was not aware at
the time who had applied for the position. CH1 further asserted that the position was reposted
and Complainant did not apply for it under the new posting.

Claims 10-11 and 13 – Auditing/Reclassifying Complainant’s position and Reassignment

Complainant asserted that management informed her that her position was being reclassified
from a GS-11 to a GS-7 position because she did not perform analytical duties in her entire
dashboard which she claimed is not true. She also claimed that her reassignment to the Nutrition
and Food Service was a less desirable position.

CH1 testified that every three years, position descriptions are reviewed and submitted to the
classification unit to assure that everyone is correctly classified. According to CH1, shortly after
becoming Chief of QM, she realized that two of her positions in the department had not been
sent for classification. CH1 stated that she sent an email to both individuals in those positions,
showing them their current position description and asking for input as to any corrections that
were necessary. CH1 stated that the main thing that Complainant added was that she had
Automated Data Processing Application Coordinator duties that were not in her position
description. CH1 stated that she revised the position description to include all of Complainant’s
additions. According to CH1, the classification was sent to the classification unit for routine
reclassification. Thereafter, CH1 was notified that the classification unit needed to conduct a
desktop review. The classification unit notified her through the Human Resources department
that the position was downgraded to a GS-7. CH1 stated that she was told that Complainant was
performing management assistant duties. Prior to the downgrade of the position, Complainant
was moved to a GS-11 position in the Nutrition and Food Service.

CH1 explained that Complainant was not involuntarily reassigned to the Nutrition and Food
Service position, but rather she applied and accepted that position. Specifically, CH1 testified
that when notified that Complainant’s position was being downgraded, she offered Complainant
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the opportunity to be considered for preferred consideration for any GS-11 openings that were
within the facility. CH1 stated that Complainant submitted her resume to the Human Resources
department for preferred consideration, which resulted in an offer to Complainant for the
position of Administrative Officer for the Nutrition and Food Service which she accepted.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether, or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

To establish a claim of harassment 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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

We agree with the AJ’s analysis and finding that Complainant failed to prove, by a
preponderance of the evidence that she was harassed and/or discriminated as alleged.
Specifically, we agree that with respect to Complainant’s allegations that S1 engaged in
harassing behavior, the record is devoid of evidence that S1’s outbursts (even if accurately
described by Complainant) were motivated by Complainant’s membership in any protected class.

With respect to all three alleged racially derogatory utterances, the AJ essentially concluded that
when considering the context of each statement, none of the statements were uttered toward any
individual with racial intent. Specifically, with respect to Complainant’s claim that during a
training session, A1 used the word “nigger” as an example of verbal abuse that managers do not
have to accept from Union officials, the AJ weighed the testimony of various witnesses and
found that the full version of the offensive word was not uttered by A1. We find that the AJ’s
credibility assessments are supported by substantial evidence in the record. However, even if the
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full word was uttered, the undisputed record shows that it was stated during a training session as
an example of what management does not have to (and should not) put up with coming from a
Union representative. Accordingly, we do not find sufficient evidence in the record to support
Complainant’s assertion that the use of the contested term was objectively offensive given the
unique context in which it was uttered.

With respect to the alleged discussion of the book “Monkey,” the undisputed record shows that
the title does not pertain to race, but gives advice to managers whose subordinates attempt to
assign work back to the supervisor, such subordinates being “monkeys on the back” of the
supervisor. In addition, the record is devoid of evidence that the reference to the title of the book
was made in a manner that pertained to race. With respect to the use of the phrase “slaves in
chains,” the AJ concluded that “[t]here was no evidence that [NM] intended to be racially
offensive in making a point about his staffing woes.” We agree with the AJ and, also, find
insufficient evidence to conclude that this statement was objectively offensive to someone in
Complainant’s shoes.

After considering the allegations of harassment individually and together as a whole, we agree
with the AJ in concluding that the record does not support the conclusion that Complainant was
subjected to unwelcome conduct that was related to her race, color, sex, age, or prior EEO
activity or had the purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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 Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We also agree with the AJ’s conclusion that management officials articulated a legitimate,
nondiscriminatory reason for moving Complainant from her office (i.e., because a new Systems
Redesign Coordinator required more privacy) which Complainant did not show by a
preponderance of the evidence to be a pretext for discriminatory or retaliatory animus. With
respect to the audit and downgrade of Complainant’s position, we agree with the AJ in
concluding that the preponderance of the evidence supports the finding that Complainant’s
supervisors were not substantively involved in this employment action and the record contains
insufficient evidence of discriminatory or retaliatory animus on the part of the responsible
officials. We also find that Complainant did not prove by a preponderance of the evidence that
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the reassignment to the Nutrition and Food Service GS-11 position (whether considered
voluntary or not) was motivated by discriminatory or retaliatory animus.

On appeal, Complainant asserts that the AJ’s conclusion that A1 did not utter the full “N” word
is erroneous. While it is true that some of the witnesses testified that A1 used the full “N” word,
most of the witnesses testified that he used the term "the 'N' word." The AJ’s credibility
assessment with respect the contradictory witnesses is supported by substantial evidence in this
matter. In the alternative, Complainant asserts that A1 should not have used the “N” word as
either a full or partial word. We agree with the Agency that in the context of conducting EEO
training it is sometimes necessary to mention the “N” word; because unfortunately, the offensive
word is still used.

Complainant also argues that she has applied for “over hundred jobs” at her facility. However,
those other non-selections are not before us. With respect to the one non-selection that is before
us, we agree that Complainant did not meet her burden in proving that the cancelation and
subsequent reposting of the position was motivated by discriminatory or retaliatory animus.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final order which implements
the AJ’s decision finding that Complainant failed to prove discrimination or retaliation as
alleged.

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
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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

November 17, 2017
Date