0120160585
05-30-2018
Bao S.,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bao S.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160585
Agency No. 200400062014104234
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 October 20, 2015 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist, GS-1035-14, at the Agency's VA Central Office facility in Washington, DC.
On July 31, 2014, Complainant initiated EEO counseling. On November 13, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of disability ("prior reasonable accommodation requests") and age (52). In support of her complaint, she cited 33 examples of alleged harassment that occurred from January of 2013 to November 18, 2014:
1. On January 30, 2013, March 12, March 27, April 2-4, 9, 15 and 23, 2013, the Special Assistant precluded her from completing her required project assignments and meeting deadlines;
2. From February to May 2013, the Special Assistant frequently directed her to provide assignments to her, and not the Acting Director;
3. From February to May 2013, Complainant experienced conflict with the Special Assistant when the Acting Director required all packages to be routed through the Special Assistant;
4. From February to May 2013, she submitted the Vets Walk Project to the Special Assistant, who failed to submit the information to the Acting Director;
5. On March 21 and 25, 2013, the Acting Director refused to intervene when Complainant made him aware of the mistreatment and hostility that the Special Assistant displayed towards her;
6. On March 25, 2013, she made the Acting Director aware of the Special Assistant's unwillingness to review her documents;
7. From April 5 to April 10, 2013, the Special Assistant was upset with Complainant when a Memorandum of Understanding was approved without her review;
8. On April 10, 2013, the Special Assistant summoned her to the Special Assistant's office and interrogated her after the Acting Director received Complainant's documents without the Special Assistant's review;
9. On April 15, 2013, she submitted the Veterans Day - VA for Vets Walk Project Package to the Special Assistant and was advised that her work was not the Special Assistant's priority;
10. On May 13, 2013, Complainant was placed in a detail position;
11. On June 17, 2013, the Special Assistant removed her from the calendar invite, during final decisions, for the contractor approvals;
12. On June 17, 2013, the Special Assistant removed her from the marketing meetings and other Public Affairs responsibilities;
13. On June 17, 2013, the Acting Director instructed her to talk with the Chief, Recruitment, Retention, and Outreach, and told her the Chief would talk with the Special Assistant to ensure that the Special Assistant included everyone in the marketing / Public Affairs meetings;
14. On December 16, 2013, the Acting Director permanently reassigned her to serve as the Supervisory Veteran Employment Coordinator;
15. On June 26, 2014, she became aware of a pending recruitment for her current position of Public Affairs Specialist, GS-1035-14;
16. On June 26, 2014, the Director gave her two assignment options: accept a downgrade as a Supervisory Veteran Employment Coordinator, or remain in the current grade as a Public Affairs Specialist without supervisory authority;
17. On June 26, 2014, she informed the Director that he was creating a position of Chief without allowing others to compete;
18. On June 26, 2014, the Director denied her the opportunity to reclassify her current position;
19. On June and July 28, 2014, Complainant had a meeting with the Director to discuss Complainant's concerns that the Director allowed the Special Assistant to write Complainant's position description to match her resume, before the position was reclassified, and informed him that she was not willing to take a downgrade and he assured her that things would be different and Complainant requested her reassignment and change in duties be provided in writing and reflected in the Official Personnel Folder;
20. On July 21, 2014, her "accommodations" were violated when her supervisor moved her into a cubicle;
21. On July 28, 2014, the Special Assistant told her in a stern manner that Complainant reported to, and worked for, her, and she (the Special Assistant) had work for Complainant to do;
22. On July 28, 2014, the Special Assistant informed her that she (the Special Assistant) was reclassifying Complainant's position, which could subsequently force Complainant into a downgraded GS-13 position;
23. On August 11, 2014, the Director and the Special Assistant reassigned her to the Public Affairs Specialist position;
24. On August 19, 2014, the Special Assistant gave student interns more respect and responsibilities than she gave Complainant;
25. On August 19, 2014, the Special Assistant undermined her potential during their first meeting when she indicated that she needed a senior-level employee with a true skill set in marketing and communication;
26. On September 2, 2014, the Special Assistant interrogated her about a task that was given to her by VESO leadership;
27. On September 3, 2014, the Special Assistant called Complainant while she (Complainant) was on leave to constantly interrogate her about what was going on in the office;
28. On September 10, 2014, the Special Assistant removed her from the calendar invites for Public Affairs meetings;
29. On September 18 and October 23, 2014, the Director was upset and agitated with her when he asked why she filed a complaint;
30. On September 24, 2014, her ideas became stalled because the Special Assistant interrogated her when Complainant briefed the Director, while the Special Assistant was at a conference;
31. From September 29 to October 2, 2014, the Special Assistant interrogated her when Complainant briefed the Director while the Special Assistant was at a conference;
32. On October 9, 2014, VESO leadership told her to hang in there. Things are going to get better; and
33. On November 18, 2014, Complainant was humiliated when the Special Assistant went on annual leave and told Complainant, in front of other employees, that Complainant was not really in charge.
The Agency dismissed allegations 1, 5, 6 and 8 - 14 for untimely EEO contact. The Agency next dismissed allegations 15 - 19, 21, 22, 24 - 30, 32 and 33 for failure to state a claim because the independent claims did not render Complainant aggrieved.
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).
Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency considered the dismissed allegations in its analysis of the remaining accepted hostile work environment claim. Although Complainant did not allege disability discrimination or reprisal in her complaint, the Agency considered these claims because Complainant raised those issues during the investigation. The Agency found that management articulated legitimate reasons for its actions, which Complainant failed to show was a pretext for discrimination.
Complainant did not submit a brief in support of her appeal.
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").
Because Complainant did not contest the dismissal of some of her allegations, we will focus our review on the merits of her claims.
Section 633(a) of the ADEA requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination" based on age"). Similarly, Section 501 of the Rehabilitation Act bans discrimination against individuals with disabilities in the federal workplace. It also requires an employer to accommodate the known disabilities of a qualified individual with a disability, unless doing so would be an undue hardship. Reprisal for engaging in protected activity under these statutes is also unlawful.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We will assume for purposes of our analysis that Complainant is a qualified individual with a disability and that Agency management was aware of her age and prior EEO activity when Complainant was reassigned to different duties. Although the disability and reprisal claims were not raised in the formal complaint, the Agency recognized that she raised the issues during the investigation. In this case, we find that the record does not substantiate the claims of age discrimination, discrimination based on disability or reprisal. There is no evidence that others who were similarly situated were treated better.
Specifically, we find that the record evidence does not support her claim that, due to her age, she was directed to provide assignments directly to the Special Assistant (claim 2); or that she was moved into a cubicle after her reassignment (claim 20); or that she was offered a reassignment (which she accepted) to the Public Affairs Specialist position (claim23); or that she was questioned by the Special Assistant, while Complainant was briefing the Director (claim 31).
In addition, the responsible management officials articulated legitimate, non-discriminatory reasons for each of its actions. Management assigned the Special Assistant to serve as the supervisor, she was moved to a different location because she has changed teams. The Agency exercised its managerial authority to revamp the position to better serve its needs.
For these reasons, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext for unlawful discrimination. Stated differently, she did not show that the Agency failed to make its actions free of discrimination through evidence proving that a protected basis - in this case, that her age or disability was a factor in its decisions.
Harassment
To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his statutorily protected class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep't of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016).
In other words, 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 - in this case, her age, disability or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
We note that Complainant perceived the alleged events to be hostile and that she disagreed with the Agency's reasoning for her change in duties. However, although Complainant asserted that she was subjected to harassment based on her age and claimed disability, she provided insufficient evidence to show that the alleged incidents were severe or pervasive or occurred as she stated or that the incidents occurred because of the protected bases alleged in her complaint.
Therefore, based upon our review of the record, we find that Complainant has not met her burden of establishing that the alleged events occurred because of her protected bases and / or prior EEO activity. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
May 30, 2018
__________________
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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0120160585