0120160241
01-25-2018
Angeles C.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Angeles C.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160241
Hearing No. 490-2012-00170X
Agency No. 200305982012100114
DECISION
On October 5, 2015, 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 September 9, 2015, 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.
ISSUE PRESENTED
Whether there is substantial evidence in the record to support the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Human Resources Specialist at the Agency's Central Arkansas Veterans Healthcare System facility in Little Rock, Arkansas. On November 8, 2011, Complainant filed a formal EEO complaint. She alleged that she was subjected to harassment/hostile work environment based on reprisal (prior EEO activity) when:
1. In March 2011, she did not receive a mid-year performance review.
2. In August 2011, her request to be placed in Labor/Employee relations was denied;
3. On September 1, 2011, her request for a compressed work schedule was denied;
4. On September 1, 2011, her request that her position description be reclassified for a possible upgrade was denied;
5. On September 27, 2011, she was advised not to concern herself with any classification discrepancies outside her assigned services;
6. On October 5, 2011, she was advised that she had failed to do her job;
7. On October 7, 2011, she became aware of an OPM decision classifying HR Specialists in Recruitment & Placement (R&P) at the GS-9 level;
8. Effective November 7, 2011, she was involuntarily reassigned as an HR Specialist (R&P), GS-201-11;
9. On January 6, 2012, she received a Fully Successful performance rating;
10. On January 11, 2012, she was not selected for the position of Supervisory Human Resources Specialist, GS-0201-12, under Merit Promotion Announcement KL-12-DBA-544483;
11. Effective January 16, 2012, one of her duty assignments was removed;
12. On March 8, 2012, she was notified that she was not selected for the position of HR Specialist (HR Development), GS-12, under Merit Promotion Announcement RQ-12-KG-586897;
13. On June 20, 2012, she was not selected for the position of HR Specialist (HR Development, GS-12, Announcement RQ-12-KG-663625; and
14. On December 12, 2012, she received a Fully Successful performance rating.
She also alleged that she was discriminated against based on reprisal (prior EEO activity) when:
15. On September 1, 2011, her request for a compressed work schedule was denied;
16. On September 1, 2011, her request that her position be reclassified for possible upgrade was denied;
17. Effective November 7, 2011, she was involuntarily reassigned as an HR Specialist (R&P), GS-201-11;
18. On January 6, 2012, she received a Fully Successful performance rating;
19. On January 11, 2012, she was not selected for the position of Supervisory Human Resources Specialist, GS-0201-12, under Merit Promotion Announcement KL-12-DBA-544483;
20. Effective January 16, 2012, one of her duty assignments was removed;
21. On March 8, 2012, she was notified that she was not selected for the position of HR Specialist (HR Development), GS-12, under Merit Promotion Announcement RQ-12-KG-586897;
22. On June 20, 2012, she was not selected for the position of HR Specialist (HR Development, GS-12, Announcement RQ-12-KG-663625; and
23. On December 12, 2012, she received a Fully Successful performance rating.
Finally, Complainant alleged that she was discriminated against based on age (over 40) and sex (female) when, on January 11, 2012, she was not selected for the position of Supervisory Human Resources Specialist, GS-0201-12, under Merit Promotion Announcement KL-12-DBA-544483 (claim 24)).
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 Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on May 7, 2015, and issued a decision on August 26, 2015. The AJ found that the Agency provided legitimate non-discriminatory reasons for each of the matters at issue. The AJ found regarding Claim 1, Complainant was provided a mid-year performance review, but Complainant did not like the rating and considered it to not be a "proper review;" regarding Claim 2, management indicated that they valued her skills in staffing and believed that she was needed in that department; regarding Claims 3 and 15, Compressed Work Schedules had been eliminated for all employees;
regarding Claims 4 and 16, Complainant complained about the 2006 position description (PD) but that PD had been upgraded in 2009, however. According to the Agency, nothing had changed to warrant an upgrade of the 2009 PD; regarding Claim 5, the classification of medical employees was outside of her assigned area; regarding Claim 6, Complainant exceeded her responsibility by instructing a Supervisor that he lacked sufficient documentation to address an issue in his department, rather than providing the Supervisor with the information and leaving the decision to the Supervisor; regarding Claim 7, the Agency indicated that Complainant was not downgraded, but remained at the same level; regarding Claims 8 and 17, Complainant was not reassigned, but remained in the same position and at the same level; regarding Claims 9 and 18, management continued to believe that Complainant was most valuable in the staffing department; regarding Claims 10, 19, and 24, the position was advertised externally, and the candidate selected scored higher than Complainant; regarding Claims 11 and 20, this action was requested by the head of Primary Care, because he believed that Complainant had provided inaccurate information on a number of specified occasions; regarding Claims 12 and 21 and 13 and 22, Complainant acknowledged that she had not performed well during the interviews; regarding Claims 14 and 23, Complainant's supervisor had changed. Although she was recognized as doing well on knowledge and skills, there were communication problems that led to misunderstandings;
The AJ found no persuasive evidence of pretext. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not establish that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted a brief on appeal. In pertinent part, her brief reiterates her contentions that she was discriminated against based on her prior EEO activity, age, and sex.
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).
Upon review, we find that there is substantial evidence in the record that supports the AJ's finding that, even if Complainant established a prima facie cases of discrimination based on sex, age, and reprisal for engaging in prior EEO activity, the Agency provided legitimate non-discriminatory reasons for its actions. Like the AJ, we find that Complainant did not provide persuasive evidence of pretext.
Harassment
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 order.
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
_1/25/18_________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160241
2
0120160241