0120161000
07-19-2018
Callie B.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Callie B.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161000
Agency No. 200H03252014103593
DECISION
On January 28, 2016, 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 December 29, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether Complainant established that her suspension of four (4) days for making data entry errors was due to discrimination based on race (African-American), sex (female) and in reprisal for having engaged in prior EEO activity; and whether Complainant established that she was subjected to a hostile work environment due to her race, sex and previous EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative and an Authorization Quality Review Specialist at the Agency's Department of Veterans Affairs Regional Office facility in Cleveland, Ohio. Complainant was responsible for reviewing data entries of the other VRSs. A-1 (White, Male) was Complainant's first level supervisor. He was aware of the Complainant's sex and race, but not her prior EEO activity. A-2 (White, Female) was the Assistant of the Quality Review Team (QRT). She was aware of the Complainant's sex and race, but not of her prior EEO activity.
On September 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her as indicated above.2 The record indicates that on October 7, 2013, Complainant was assigned to a desk in front of A-2's office in accordance with A-1's orders. On various dates between October 2013 and January 2014, Complainant maintains that she did not receive feedback from A-2 on the Automated Standardized Performance Elements Nationwide (ASPEN) data entry system.
On January 10, 2014, A-2 assigned Complainant to mentor an employee who needed all his cases reviewed because he was a trainee. On January 14, 2014, A-2 conducted a desk inspection for the entire team to look for unsecure files. During this inspection, she noticed that Complainant had uncompleted time sheets, and she asked her to turn them in when they were completed. Complainant was not disciplined.
C1, another VSR, reported that her quality reviews were being erroneously reviewed by Complainant in the ASPEN system. Consequently, A-2 reviewed Complainant's work, and during this review, A-2 discovered that Complainant made multiple mistakes with all the VSRs that she had been assigned to review. A-2 notified A-1 of her findings, which lead to a comprehensive review of Complainant's work for Fiscal Year 2013, which uncovered multiple mistakes. After consultation with Human Resources, a more thorough fact-finding investigation was conducted. The investigation disclosed additional mistakes by Complainant.
On May 22, 2014, Complainant was issued a letter of suspension for "failure to follow instructions." The letter cited 88 instances where Complainant did not list the correct number of issues in cases that she had reviewed. A-3, the Veterans Service Center Manager (Black, Male), was the proposing official with respect to the suspension. He was aware of Complainant's race and sex, but not of her EEO activity. A-4, the Associate Director (White, Male) was the deciding official with respect to the Complainant's suspension. He also was aware of her sex and race, but not of her EEO activity.
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. 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 prove that the Agency subjected her to discrimination or unlawful harassment as alleged.
CONTENTIONS ON APPEAL
Complainant, through counsel, alleged that management confirmed that a white male employee was treated differently based under the same or similar circumstances when he could correct his mistakes without review and was not given a four (4) day suspension for his actions. Complainant contends that this evidence constitutes pretext, and that it was not considered by the Agency. With regard to the Agency's finding that she was not subjected to a hostile work environment, Complainant "offered no further comment."
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
Disparate Treatment
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden. Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Assuming, arquendo, that Complainant established a prima facie case of discrimination based on race, sex and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reasons for suspending Complainant four (4) days for making data entry errors. Both A-1 and A-2 testified that Complainant was suspended for failing to follow instructions for data entry on the ASPEN system. This determination was made after an extensive review of her work. A-1 maintained that Complainant's errors, in his opinion, were not due to a lack of training or an honest misunderstanding, but that she was taking shortcuts on the more time consuming cases, which indicated that she was aware of her actions. A-3, in supporting A-1's comments, also indicated that Complainant's errors negatively impacted the performance of the VSRs she was reviewing because her errors resulted in a reduction of their averages.
The burden now shifts to Complainant to establish that the Agency's explanation for its actions were a pretext. Complainant maintains that she was not provided proper feedback which resulted in her making mistakes and that white employees who made mistakes in the ASPEN system were not disciplined. We are not persuaded by Complainant's arguments. She presented no evidence that errors by other employees were the same in kind or degree as the matters for which she was suspended. For example, the Agency cited 88 instances where Complainant did not list the correct number of issues in cases that she had reviewed.
As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that management's conduct was based on her race, sex, or prior protected EEO activity.
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 with respect to her four (4) day suspension 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 her suspension was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Furthermore, with respect to the remaining incidents that comprised Complainant's claim of a hostile work environment, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. Moreover, we find that the interactions between Complainant and her supervisor were for the most part work-related interactions and we find no evidence that they were based on discriminatory animus.
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 FAD.
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
__7/19/18________________
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 Complainant's hostile work environment claim included the following events: (1). On October 7, 2013, A-2 moved Complainant's desk in front of her office to monitor her; (2). On November 7, 2013, A-2 did not provide her feedback on ASPEN cases; (3). On November 14, 2013, A-2 did not provide her feedback on ASPEN cases; (4). On December 28, 2013, A-2 did not provide her feedback on ASPEN cases; (5). On January 8, 2014, A-2 did not provide her feedback on ASPEN cases; (6). On January 10, 2014, Complainant was assigned to mentor an employee who was on a Performance Improvement Plan for a subject matter with which Complainant was not familiar; (7). On January 15, 2014, Complainant was the only VSR counseled regarding time sheets she had not submitted like every other employee in her unit; (8). On January 17, 2014, A-2 failed to inform Complainant about required training; (9). On January 17, 2014, A-2 did not provide her feedback on ASPEN cases; (10). On January 22, 2014, her co-worker informed her that he was allowed to make corrections and did not have to verify and substantiate work related decisions like she did for A-2; (11). On February 4, 2014, A-2 disregarded and failed to assign her work for overtime; (12). On May 22, 2014, A-2 suspended her for four days; and (13). On September 30, 2014, A-2 sent her an email stating she did not respond to previous emails that did not state a response was needed.
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