Angela Y.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171210 (E.E.O.C. Nov. 16, 2018)

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

Angela Y.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120171210

Agency No. 200405122015104132

DECISION

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 January 13, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Personnel Security
Specialist, GS-9, at the Agency’s VA Medical Center in Perry Point, Maryland. Complainant
experiences complications from several conditions including Post-Traumatic Stress Disorder
(PTSD), bipolar disorder, major depressive disorder, and anxiety disorder. Complainant explains
that her conditions occasionally cause her to negatively react to irritable situations in her contacts
with difficult customers; cause unreasonably high expectations in her suitability determinations;
and negatively affect her ability to effectively concentrate, analyze documents, and communicate
verbally and in writing.

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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Complainant discussed her conditions with her supervisor (S1) in order to help S1 understand her
need for Family Medical Leave Act (FMLA) protection. Complainant alleges that her second-
level supervisor (S2) made it extremely difficult for her to get her request for FMLA leave
approved. In May 2015, S2 repeatedly made Complainant obtain more and more detailed
information from her physician. S2 explained that Complainant initially provided an incomplete
application for FMLA leave, but ultimately, Complainant’s physician provided sufficient
information to certify that Complainant needed intermittent FMLA leave for a specific period of
time. When Complainant started taking FMLA leave, S2 said that Complainant was taking more
frequent leave than what her physician indicated she would need. S2 then suggested to
Complainant that she obtain information from her physician to cover the increased frequency of
leave.

Complainant asserted that S1 constantly required her to come to his office to calculate her leave
balances whenever she requested leave. Complainant stated that S1 and a co-worker (CW1) would
make comments about her always taking leave, such as “I am tired of carrying everybody in this
section and doing their work. I come to work sick all the time, why can’t everyone else.”
Complainant also alleged that her third-level supervisor (S3) told her that the amount of leave she
took was excessive and was becoming a burden on Complainant’s co-workers. S1 denied making
any comments regarding Complainant’s use of leave or use of FMLA protection.

On March 8, 2015, Complainant was issued a written counseling for seeking to use leave that she
earned in the pay period that she earned it. S3 explained that Complainant did not request to apply
her FMLA protection to the leave and did not have available leave to use for that time. According
to S3, Complainant had exhausted all leave she earned prior to that pay period, and had also used
all leave she was earning in that pay period. Thus, she had no leave left, whether earned in the
past or concurrently.

Complainant claimed that she met with S2 on May 7, 2015, to discuss her FMLA leave. S2 said
that Complainant told him she hurt too much to be able to come to work. In response, S2 offered
her suggestions on different alternatives that might be available and be suitable for her. During
that conversation, S2 mentioned disability retirement, reasonable accommodation, and/or
contacting the Employee Assistance Program (EAP). S3 stated that it would have been within the
parameters of S2’s duties to ensure that Complainant was kept informed of all options available to
her, including EAP, FMLA, reasonable accommodation, and disability retirement.

Complainant explained that she and S2 had a meeting scheduled for 2:30 p.m. on June 2, 2015 to
discuss her FMLA paperwork. When Complainant called to confirm the meeting, S2 said that he
“should be” available. At 3:20 p.m., the two had not yet met, and she called S2 again. Complainant
alleged that S2 yelled at her, asking why she had not come by his office yet. When she got there,
S2 told her that he only had a few minutes to meet, otherwise the meeting would have to occur
another time. Complainant chose to leave instead.

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On June 16, 2015, S2 issued Complainant a Letter of Reprimand. Complainant alleged that the
Letter of Reprimand misconstrued the events that transpired. The Letter of Reprimand stated that
Complainant was notified of the requirement to complete training in the Talent Management
System, FY 2015 Professional Development Planning Process, no later than March 30, 2015.
Complainant failed to complete the training until April 30, 2015. Complainant explained that she
knew about the training, but did not initially believe that the training was required for her. In
addition, the Letter of Reprimand stated that Complainant demonstrated disrespectful conduct on
May 5, 2015, during a meeting of which she had requested with a Classification Specialist (CS1)
regarding her position description. Complainant denied that she was disrespectful, but admitted
that she raised her “voice loud enough in an effort to try to deescalate the situation.” Complainant
further admitted that she told him “Liar, you are a lying man of God.” As a result, Complainant
was charged with Failure to Follow Instructions and Disrespectful Conduct.

In addition, Complainant claimed that the Agency denied her attendance at an Essentials of
Suitability Adjudication Program (ESAP) training course. Complainant stated that she had been
requesting to attend this training since 2013, but had been denied due to lack of funding. When
funding became available in January 2015, she was scheduled to attend the training in July 2015,
but her registration was later canceled. Complainant claimed that management allowed S1 to
attend the training instead. On December 7, 2015, Complainant again requested to attend ESAP
training.

Shortly before Complainant was to attend ESAP training, management was notified that all travel
and training funds were being cut from the budget, and “any training that was not absolutely patient
care related was being terminated and people were being cancelled.” Thus, all of Complainant’s
training in June was cancelled. In fact, S3 said that during that time, “[a] lot of classes were
canceled . . . unless they were patient-care related training.” Then, when the new fiscal year began
in November, the Agency received limited funds for training purposes. Due to these limited funds,
S1 attended the ESAP program in November because S3 concluded that it would be best to send
S1, a supervisor, to the training because S1 would be overseeing the whole department and signing
off on the department’s adjudications herself. The Agency later implemented a pilot program to
replace ESAP training and Complainant and two other employees attended that training when it
became available.

Complainant went on extended leave from June 30, 2015 until December 1, 2015. Complainant
stated that she had emails that would prove her claims of harassment, including a barrage of emails
from S2. However, after she returned from extended leave in December 2015, these emails had
vanished. S3 said that, based on her experience and use of the Agency’s computer systems, if an
employee is not active for a period of time, then that employee’s emails are archived to a relatively
inaccessible location.

S2 also rejected the notion that he was building a case for Complainant’s termination. He pointed
out that Complainant was absent from work from June 30, 2015 to November 30, 2015, a period
of five months. A portion of that time was protected under FMLA, but after that point, she had
exhausted all forms of leave and was in a leave without pay status until she returned.
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S2 stated that the Agency could have marked that time as AWOL and terminated Complainant,
but the Agency chose not to do so and tried to work with Complainant so she could return to work.

Complainant claimed that CW2 witnessed the harassment she suffered. CW2 denied witnessing
the harassment and states that the only yelling he witnessed was between S2 and himself, and that
it was strictly related to time and attendance. CW2 also said that S2 was “heavy handed with his
supervision.” Another coworker (CW4) said that S2 was not an enjoyable person to work with.

In December 2015, Complainant claimed that S1 improperly issued her a performance appraisal.
Complainant argued that she should have never received a performance appraisal of “Fully
Successful” from S1 because S1 never observed her and had nothing to support a Fully Successful
rating when she was previously rated “Excellent.” Complainant alleged that S1 told her that
because S1 had not observed Complainant, the only rating S1 could give was Fully Successful. S1
stated that she told Complainant that she would have rated Complainant as Fully Successful, but
she ultimately did not issue a performance appraisal because she had not been her supervisor long
enough to rate her. Consequently, Complainant’s rating remained Excellent in the Agency’s
system.

On October 2, 2015 (and amended on March 9, 2016), Complainant filed an EEO complaint.
Therein, Complainant alleged that the Agency discriminated against her on the bases of disability
(bipolar disorder, major depressive disorder, and anxiety disorder) when:

1. On June 16, 2015, Complainant’s second level supervisor (S2) issued Complainant
a Letter of Reprimand, which was sustained on June 23, 2015.

Complainant further alleged discrimination on the bases of disability, race (African-American),
and in reprisal for prior protected EEO activity when:

2. In December 2015, Complainant’s first-level supervisor (S1) issued Complainant a
2015 Performance Appraisal with a rating of Fully Successful when Complainant
should have been rated Excellent; and

3. Complainant was subjected to a hostile work environment based on the following
events:

a. From July 16, 2014 to June 30, 2015, S1, S2, and a coworker (CW1) constantly
harassed Complainant about her requests for leave under the Family and
Medical Leave Act (FMLA);

b. On March 8, 2015, S2 charged Complainant four hours of Absent Without
Leave (AWOL);

c. On May 7, 2015, S2 suggested to Complainant that Complainant should
consider disability retirement;
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d. On June 2, 2015, S2 yelled at Complainant and accused Complainant of being
rude;

e. On June 8, 2015, S2 yelled at Complainant, was dismissive of Complainant,
and did not give Complainant already-approved FMLA paperwork;

f. On June 16, 2015, S2 issued Complainant the Letter of Reprimand;

g. In November 2015, Complainant learned that S1 was allowed to attend the same
training class that Complainant was scheduled to attend in July 2015, which
was unexpectedly canceled;

h. On December 7, 2015, Complainant submitted a second request to attend
training, and was told by management that the request would be discussed; and

i. In December 2015, S1 issued Complainant a 2015 Performance Appraisal with
a rating of Fully Successful when Complainant should have been rated
Excellent.

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 (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 demonstrate that the Agency subjected her to discrimination as alleged.

As to claim (1), the Agency concluded that S2 could not have retaliated against Complainant
because S2 did not know of Complainant’s EEO activity at the time of the Letter of Reprimand.
Additionally, Complainant did not rebut that S2’s explanation that she failed to complete the
training as requested for a month and Complainant confirmed that she referred to CS1 as a “liar,
lying man of God.”

Addressing claim (2), the Agency concluded that S1 articulated a legitimate, nondiscriminatory
reason for Complainant’s performance evaluation. Specifically, Complainant’s rating was not
completed because S1 did not have sufficient time to observe Complainant’s work. Thus,
Complainant never received a rating of Fully Successful, as alleged.

The Agency then turned to Complainant’s allegation of harassment and concluded that the facts
did not demonstrate Complainant was subjected to harassment as alleged. Moreover, the Agency
articulated legitimate, nondiscriminatory reasons for each of its actions, including cancelling
Complainant’s training and for having Complainant complete online training instead. As a result,
the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.
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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”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. 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
804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. 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, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, 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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28. 1990): Peterson v. Dep’t. of Health and Human Servs., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990).

In the instant case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the Letter of Reprimand in claim (1), S2 asked Complainant to complete the training
by the end of March 2015. Complainant did not do so, and only completed the training after S2
followed up on his request at the end of April 2015. S2 also provided email documentation to
support this chronology of events. In addition, Complainant referred to CS1 as a “liar, lying man
of God.” Complainant does not rebut S2’s explanation as to the training, and in fact confirmed
that she referred to CS1 in such terms. Complainant offered nothing to demonstrate that S2’s
articulated reasons are unworthy of belief or pretext for discriminatory animus.

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With respect to claim (2), Complainant alleged that she was discriminated against and subjected
to reprisal when she was issued a 2015 performance appraisal that rated her Fully Successful
instead of Excellent. However, Complainant offered nothing to rebut S1’s explanation that
Complainant was never actually issued a performance appraisal and that her rating remained
Excellent at the time.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. Upon review of the
record, we find insufficient evidence to establish that the Agency’s actions were motivated by
discriminatory or retaliatory animus.

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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 protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

In short, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that Complainant has not shown that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment.
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Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to demonstrate that the alleged incidents were based on her
disability, race, or in reprisal for prior EEO activity. Rather, the Agency articulated explanations
for many of the allegations that comprise Complainant’s hostile work environment claims. For
example, the Agency made decisions regarding Complainant’s ESAP training based on budget
considerations and needs of the Agency. Further, Complainant did not demonstrate that her
supervisors took any action with respect to her request for FMLA leave because of her disability,
race, or in reprisal for EEO activity. Moreover, Complainant has not shown that S2’s actions
regarding Complainant’s attempts to obtain FMLA leave, or S1’s calculation of Complainant’s
leave balances violated FMLA in a way that constitutes unlawful discrimination under Title VII
or the Rehabilitation Act. As to Complainant’s attempts to use leave in the period it was earned,
S3 explained that Complainant received AWOL not because she sought to use leave in the pay
period she earned it, but because she had exhausted all leave available to her, including the leave
she earned in that pay period. Complainant did not rebut this explanation.

We also note that S2 explained he discussed disability retirement with Complainant as part of a
conversation to ensure Complainant was apprised of all options she had available to her. We have
found that such a discussion does not run afoul of EEO laws. Sana I. v. U.S. Postal Serv., EEOC
Appeal No. 0120182597 (Sept. 28, 2018) (employee’s allegation that receipt of an “Options
Letter” that informed the employee of her right to request light duty, disability retirement,
resignation, or reasonable accommodation did not render employee aggrieved).

The Commission concludes that, based on the totality of the circumstances, Complainant has not
shown that she was subjected to a discriminatory or retaliatory hostile work environment. As a
result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a
hostile work environment as alleged.

CONCLUSION

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 decision.

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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.
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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 16, 2018
Date