0120141587
09-15-2016
Aline A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Aline A.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141587
Hearing No. 430-2012-00332X
Agency No. 2004-0565-2012100126
DECISION
On March 11, 2014, Complainant filed an appeal from the Agency's February 14, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to a hostile work environment and whether she was constructively discharged from her employment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Specialist, GS-9, at the Agency's VA Medical Center in Fayetteville, North Carolina. She was hired under a Schedule-A Excepted Appointment, effective February 23, 2011. During her employment, Complainant received a government travel card for authorized travel in connection with her position. Complainant received training regarding the proper use of her government travel card.
On August 22, 2011, Complainant's supervisor (S1) was notified that her government travel card balance was delinquent with an outstanding balance of $1,723.70. It was noted that only $1,564.75, was for authorized expenses. The unauthorized purchases were made locally and included ATM withdrawals and charges to local restaurants, gas stations and banking institutions. It was also noted that Complainant had been reimbursed $1,564.75, for her authorized travel in June 2011, but she had paid only $150.00 on the government travel card after she received the delinquent balance.
On August 30, 2011, Complainant, S1, an Employee Labor Relations Specialist, and a union representative met to discuss the unauthorized government travel card charges. Complainant provided a written explanation which indicated that the "misuse was unintentional because of her misunderstanding that she would use the card for local work-related field trips, gasoline and meals during the work day."
Complainant received a notice of termination during her probationary period on September 14, 2011. The termination was scheduled to be effective September 16, 2011, and was due to her misuse of the government travel card. Upon advisement from her union representative, Complainant resigned, effective September 16, 2011, to avoid termination.
Thereafter, Complainant alleged that she was subjected to harassment when she overheard S1 refer to female drivers as "tricks." She also maintained that she was subjected to harassment when she was asked to provide paperwork for a course but a male coworker was not required to provide the same information. Complainant maintained that S1 subjected her to harsh and demeaning comments, gave her unclear directions, threatened to fire her, favored a male coworker, and called her "young" in a disparaging manner, even though S1 was only two years older than Complainant. Additionally, Complainant asserted that she was constructively discharged when she was given the option of resigning or being terminated during her probationary period.
On January 25, 2012, Complainant filed an EEO complaint alleging that she was subjected to a hostile work environment on the bases of sex (female) and age (50) when: (1) she was subjected to multiple harassing events; and (2) she was constructively discharged from her position.
At the conclusion of 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. Complainant timely 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 a hostile work environment or subjected her to a constructive discharge.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency focused on the misuse of the travel card instead of her allegations of harassment. She contends that the hostile work environment occurred before the travel card issue. Complainant maintains that she was a good worker that never received a poor performance appraisal. She contends that her witnesses were not interviewed. She also alleges she was called "young" and overheard a conversation were S1 called women drivers "tricks." Moreover, Complainant maintained that when she received the notice of termination, on September 14, 2011, her keys and work product were taken away, and she was not given the required two week notice. Finally, Complainant contends that the FAD was not issued or received in a timely manner and that the investigation was inadequate.
In response, the Agency requests that the FAD be affirmed. The Agency argues that Complainant's allegations about the untimeliness of the FAD and her not receiving it in a timely manner are unfounded. The Agency explains that Complainant withdrew her hearing request ten days before the hearing and the FAD was issued 60 days after it received notification from the Administrative Judge. Moreover, the Agency indicated that Complainant moved at least three times in two years, and that Complainant did not keep her address of record current which is why she received the FAD in an untimely manner.
Further, the Agency indicated that the investigation was adequate and the record was developed enough to determine whether or not the Agency's actions were the result of unlawful discrimination. The Agency notes that it is telling that although Complainant was aware of the Agency's anti-harassment policies and procedures, yet she never reported S1's alleged conduct to anyone.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Harassment
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 (Mar. 8, 1994). To establish a claim of harassment, 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether 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, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). 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.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the record does not support Complainant's contention that she was subjected to a hostile work environment. We find that the incidents complained of by Complainant were not severe or pervasive enough to establish a hostile work environment. Specifically, with regard to the "trick" comment, the record shows that it was not made to Complainant or about her, but was overheard once when S1 concluded a telephone call. Although the comment was rude and unprofessional, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
Further, Complainant maintained that she was treated differently than a male coworker with regard to a class they were taking and his being allowed to take "lead" on a project. The record shows that Complainant had not gotten permission to take the course so she was asked for information to support her need for the training class. Also, the male employee was allowed to take the lead on a project, because, according to S1, he wanted to balance out the work. S1 indicated that Complainant was always taking the lead. We find no persuasive evidence which supports Complainant's assertions that because of her sex and age, S1 subjected her to harsh and demeaning comments, gave her unclear directions, threatened to fire her, or called her younger even though S1 was only two years older than Complainant. For the most part, we find that these incidents were random, sporadic events that are common in the workplace and were not severe or pervasive enough to establish a hostile work environment.
Constructive Discharge
With respect to Complainant's constructive discharge claim, we note that she must establish that because of its unlawful discriminatory behavior, the Agency made her working conditions so difficult that any reasonable person in her position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17. 2002). The Commission has established three elements which an employee must establish in order to substantiate a claim of constructive discharge: (1) a reasonable person in the employee's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the employee created the intolerable working conditions; and (3) the employee's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find for the reasons set forth above that Complainant did not establish that her working conditions were so intolerable that she was forced to resign. Complainant, when faced with the certainty that she would be discharged during her probationary period due to her misuse of the government credit card, chose to resign her position.
Finally, we disagree with Complainant's contention that the investigation in her case was inadequate, but not that she had the opportunity to have an administrative hearing in her case. This hearing would have been presided over by an EEOC Administrative Judge who would have allowed for discovery that could have corrected any alleged deficiencies in the record. Complainant, however, withdrew her request for a hearing.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not establish that she was subjected to a hostile work environment or a constructive discharge.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
_9/15/16_________________
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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