Ashely S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 6, 2020

2019004127 (E.E.O.C. May. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashely S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004127 Agency No. 200J-0785-2018103959 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 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resource (HR) Employee Development Specialist, GS-13, at the Veterans Canteen Service Central Office in St. Louis, Missouri. Report of Investigation (ROI), at 17. The Associate Director served as Complainant’s first level supervisor and the Executive Director was assigned as Complainant’s second level supervisor. ROI, at 68. According to Complainant, the Executive Director would yell and berate her on a regular basis, and she was treated so severely during an awards banquet that she required emergency care. She further maintained that on July 17, 2017, the Executive Director yelled at her and told her not to process employees’ performance letters, certificates, and monetary awards. Id. at 74-75. 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. 2019004127 2 Complainant also stated that the Executive Director stopped by her office on October 18, 2017, and spoke to her in a degrading tone for not being able to hire a new Corporate Instructor. Id. at 74. According to Complainant, the Executive Director said to her, “Let me see that damn red folder on the instructors” and “why the hell can’t we fill this position?” Id. Complainant additionally averred that she was told that her subordinate was reassigned because she did not like working with Complainant and the subordinate never felt that she fit in while working under Complainant. Id. Complainant further maintained that the Executive Director made inappropriate comments to her when he said he wanted new, young talent in the organization. Id. at 75. Complainant additionally believed that the Associate Director should have acknowledged her birthday because she celebrated the birthdays of other employees who received goodies and email birthday announcements. Id. at 78. On May 9, 2018, Complainant received an Official Letter of Reprimand (LOR) signed by the Associate Director. Id. at 169-170. The LOR specifically noted that during a meeting on April 24, 2018, Complainant engaged in a conversation with the Executive Director that deteriorated into a loud and confrontational argument. Id. The LOR accused Complainant of being very loud and becoming upset and agitated in her conversation with the Executive Director. Id. The LOR noted that Complainant in an emotional manner slammed her portfolio closed, stood up, pushed her chair into the table, and then proceeded to leave the meeting. Id. The LOR additionally noted that the Executive Director directed Complainant to sit back down and to not leave the room, but Complainant ignored the Executive Director’s requests. Id. The LOR found that Complainant displayed unprofessional behavior in front of staff and senior leadership. Id. According to Complainant, she sent a response to the LOR to the Chief Operating Officer, but she did not hear back. Id. at 69. Complainant later believed that she was removed from the attendance roster for the September National Training conference because the Executive Director instructed that she was not allowed to be at meetings where he would be present. Id. at 78. Complainant maintained, moreover, that he was told by the Associate Director that she was not allowed to attend the “Welcome Video Call” for the Agency’s University Management Development Program because she behaved in an unprofessional manner by leaving during the meeting as described in the LOR. Id. Complainant further asserted that Associate Director broke her promise that Complainant would be rotated into the position of Acting Supervisor. Id. at 79. Complainant also believed that she was excluded from the final leadership out briefing because the Executive Director was also scheduled to be at the briefing. Id. Meanwhile, on May 3, 2018, Complainant contacted an EEO Counselor and filed an EEO complaint on August 17, 2018, alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American and Hispanic2), sex (female), age (46), 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, the Commission acknowledges Complainant's self-identification of her race as Hispanic. 2019004127 3 and in reprisal for prior protected EEO activity when: 1. Beginning in 2015, and continuing through the present, the Executive Director yelled, berated, and embarrassed her; since December of 2015, the Executive Director did not permit her to end her term on an undesirable rotating assignment; in July of 2017, the Executive Director told her to not process performance awards; in October of 2017, the Executive Director instructed her to not interview candidates for a position; on or about April 27, 2018, the Executive Director reassigned her subordinate to another supervisor; on May 21, 2018, the Executive Director prohibited her from attending the “Welcome Video Call” for the Veterans Canteen Service University Management Development Program; on May 22, 2018, the Associate Director did not acknowledge her birthday; the Executive Director removed her from the attendees roster for the September National Training Conference; from May 28, 2018, through June 29, 2018, she was not included in the rotation of acting supervisors; on May 24, 2018 and June 18, 2018, the Labor Relations Manager instructed her to not process performance awards for her eligible subordinates stating that he did “…not want an employee’s award processed because of that employee’s prior EEO activity;” and on June 21, 2018, the Executive Director excluded her from the final “leadership out brief” of the Inventory Manager’s Committee. 2. On or about May 9, 2018, the Director issued her a Letter of Reprimand (LOR). Following 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). The Agency thereafter 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 as alleged. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for issuing Complainant with the LOR. Namely, during the April 24, 2018 meeting, Complainant "slammed her portfolio, stood up, and pushed her chair into the table," displaying unprofessional behavior in front of staff and senior leadership. The Agency found that Complainant provided no probative evidence of any discriminatory motive on the part of management and determined that management’s explanation for the reprimand was supported by the evidence in the record. The Agency further noted that the Executive Director explained that he instructed Complainant to not process an award for an employee who was a part of an EEO investigation because it was alleged that the employee ignored and failed to act on an employee's allegation of sexual harassment. The Agency noted that the Executive Director wanted to wait until the investigation was complete before he issued the performance award because he needed to determine whether administrative action against the employee was needed. The Agency further determined that its actions were not severe or pervasive enough to rise to the level of a hostile work environment. In so finding, the Agency noted that its actions were not so objectively offensive as to alter the conditions of the Complainant’s employment. 2019004127 4 On appeal, Complainant maintains that she has continued to be subjected to retaliatory harassment, has been isolated, and that management has taken much of her duties away from her. Complainant states that as a result of management’s bullying and harassment of her, she has to take many medications to survive emotionally, and she has seen a psychiatrist, therapist, and completed adult outpatient intensive therapy. Complainant does not request a hearing on appeal. 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”). Disparate Treatment (Claim 2) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. 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, 441 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, Complainant established a prima facie case of discrimination based her protected classes, the Agency articulated legitimate, nondiscriminatory reasons for issuing Complainant with the LOR. The Associate Director specifically explained that Complainant was issued with the LOR for her conduct during the April 24, 2018, meeting in which she became loud, upset, and agitated with the Executive Director and kept speaking over him. ROI, at 101. The Associate Director explained that Complainant slammed her portfolio closed and left the room although she was told not to leave the meeting and stay. Id. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 256. In an attempt to show pretext, Complainant stated that the Executive Director proceeded to “tear her down” during the meeting, which made her feel sick, and she therefore had no choice but to leave the meeting. ROI, at 78. 2019004127 5 Notwithstanding, we find that Complainant has not established that the LOR issued to her was motivated based on discriminatory or retaliatory animus. In so finding, we note that Complainant did not dispute that she left the April 24, 2018, meeting in an abrupt manner even though she was asked to stay. Id. There is simply no evidence in this case that Complainant was issued the LOR based on her protected classes, and we find that Complainant has not established that she was subjected to discrimination with regard to claim 2. 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). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In the instant case, we note that the Corporate Instructor observed that management did treat Complainant differently as a result of the April 24, 2018, meeting as described in the LOR. ROI, at 138-142. The Corporate Instructor specifically averred that all meetings in which Complainant would usually be part of ceased after the April 24, 2018, meeting incident occurred. Id. The Corporate Instructor explained that Complainant was excluded from attending any meetings where the Executive Director would be present, including the weekly HR meetings and the weekly national conference calls held in the boardroom. Id. The Corporate Instructor expressed his belief that Complainant was excluded from meetings, in part, because she left the April 24, 2018, meeting early wherein Complainant felt that the Executive Director was hostile towards her. Id. Although Complainant may have been excluded from work functions, including meetings, among other things, the record reflects that such exclusions were most likely due to her actions during the April 24, 2018, meeting, as reflected in the LOR. While Complainant’s work environment may not have been ideal, there is simply no evidence herein that management’s actions were due to Complainant’s EEO activity or protected classes. In so finding, we note that no witnesses, who provided statements for the record, expressed a belief that management took actions towards Complainant either due to her protected classes as alleged. As noted above, Complainant has not established that the LOR issued to her was motivated by discriminatory or retaliatory animus. Moreover, Complainant has not established that any of the alleged matters before the issuance of the LOR were due to her protected classes. Accordingly, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the Agency's actions herein were motivated by discriminatory or retaliatory animus. 2019004127 6 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2019004127 7 “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 May 6, 2020 Date