Celeste P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

0120171637 (E.E.O.C. Dec. 21, 2018)

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

Celeste P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120171637

Agency No. 200H-0310-2014103165

DECISION

On November 18, 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
October 31, 2016, 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.

ISSUES PRESENTED

The issues presented are: (1) whether the record is sufficiently developed; and (2) whether the
preponderance of the evidence in the record establishes that Complainant was subjected to
discrimination based on race.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal Employment
Manager, GS-0260-12, in the Agency’s Philadelphia, Pennsylvania VA Regional Office.
Complainant also served as the Regional Office’s Reasonable Accommodation (RA) Coordinator
as a collateral duty. Complainant is Black. Complainant’s first-level supervisors were the Regional
Office Directors (S1, Caucasian, and S2, Caucasian), and her second-level supervisor was the

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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Eastern Area Director (S3, Caucasian). Complainant also alleged that the Human Resources Chief
(HR1, Caucasian) and the Assistant Director (AD1, Caucasian), who were not in her chain of
command, subjected her to discrimination.

Complainant alleged that several employees whose reasonable accommodation requests were
delayed by management threatened her. Complainant averred that management would place
unnecessary obstacles in the way of employees requesting reasonable accommodation, such as
requesting duplicative medical documentation. According to Complainant, S1 failed to protect her
from these employees who made threats. S1 stated that he was unaware of employees threatening
Complainant. Complainant stated that one employee came into her office, cursed at her, pointed
at her, and threatened to sue Complainant and her family. Complainant averred that another
employee with a history of violence yelled at her multiple times. According to the record,
Complainant’s office was subsequently outfitted with a panic button.

Complainant averred that in September 2013 she was assigned to review Human Resources’
removal and termination actions for potential EEO issues. According to Complainant, she
reviewed about two such actions per week. Complainant stated that it took her a long time to do
so because she did not have labor relations training. S1 stated that this assignment did not
significantly increase Complainant’s workload.

Complainant alleged that on November 8, 2013, AD1 chastised her in two emails about a
reasonable accommodation. Complainant stated that AD1 accused her of implementing a
reasonable accommodation without approval from management. AD1 stated that she was not
chastising Complainant in these emails but was merely asking for explanations of what had
transpired. According to Complainant, her performance was scrutinized by management while
HR1 could make significant mistakes with impunity.

According to Complainant, she had a heavy workload, and a technical assistance review had
recommended that the Agency hire an assistant to help Complainant with her workload. S1
confirmed that Complainant’s workload was increasing because of an increase in reasonable
accommodation requests. Complainant averred that S1 was supportive but that S3 refused to hire
anyone. S3 stated that the Agency was not authorized to hire additional staff but that she told S1
that he could reallocate assignments to address the workload imbalance. Complainant stated that
HR1 was given more support than she was with respect to her workload.

Complainant stated that on February 4, 2014, she was updating management about a pending
reasonable accommodation and that AD1 angrily told her that she had “opened up a can of worms”
by engaging the employee in the interactive process. Complainant averred that at a February 18,
2014, AD1 again chastised her for allowing an employee to move cubicles as a reasonable
accommodation. AD1 denied chastising Complainant. According to AD1, she asked Complainant
pointed questions because she thought that Complainant was deliberately hiding information.

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Complainant alleged that in April 2014 she met with S1 for a mid-year performance review and
that S1 criticized her work, criticized her for missing meetings, and told her that she was failing as
the RA Coordinator. S1 denied telling Complainant that she was failing as the RA Coordinator.
According to Complainant, S1 told her that her attention to detail was poor, and she responded that
she was overwhelmed with all of her work. Complainant averred that S1’s secretary had access to
Complainant’s calendar but had a habit of scheduling meetings during times when Complainant
was unavailable. Complainant stated that S1 told her that he planned to remove her RA Coordinator
duties and reassign them to Human Relations. S1 stated that Complainant agreed that the RA
Coordinator workload was growing and that it was difficult to stay on top of it. According to
Complainant, S1 threatened to place her on a performance improvement plan (PIP) but never did
so. S1 denied stating that he would place Complainant on a PIP.

Complainant stated that in May 2014 AD1 privately accused Complainant of being against
management. AD1 averred that Complainant had a habit of not discussing accommodations with
management before implementing them. According to Complainant, other employees told her
what AD1 had been saying about her. According to Complainant, on May 23, 2014, AD1 told
other managers that Complainant was out of control and said that she should not serve as the RA
Coordinator. AD1 stated that she did not remember this statement.

Complainant averred that on May 23, 2014, AD1 sent someone to her office to make sure that
Complainant mailed out a letter about the denial of a reasonable accommodation. According to
Complainant, the employee in her office was on the cell phone with AD1 to confirm that
Complainant mailed the document.

Complainant stated that on May 26, 2014, S1 removed her RA Coordinator duties from her. S1
stated that he did so because Complainant was struggling with the increased RA Coordinator
workload. According to Complainant, the duties were reassigned to an employee in Human
Resources, but that employee transferred away about a month later, so the RA Coordinator duties
reverted back to her. Complainant stated that the duties were again reassigned to a Human
Resources employee on March 23, 2015.

According to Complainant, in July 2014 S3 refused to meet with her about problems in the office.
S3 stated that Complainant did not request to meet with her during this time frame. Complainant
alleged that S3 and AD1 were close friends and that S3 was not looking at workplace issues
objectively.

Complainant averred that in September 2014, management, including S1 and AD1, blamed
Complainant for allowing employees to work from home as a reasonable accommodation.
Complainant stated that management resisted the idea of allowing anyone to work from home even
after she showed them guidance indicating that work from home might be required as a reasonable
accommodation in certain situations. AD1 stated that the issue was not that employees were
permitted to work from home as a reasonable accommodation but that Complainant told the
employees that they could work from home before there were any procedures in place.

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On July 2, 2014, Complainant filed an EEO complaint, which she subsequently amended, alleging
that the Agency discriminated against her on the basis of race (Black) when:

1. From July 2013 to the present, S1 did not protect Complainant from aggressive
employees who threatened her and cursed at her because of the delay in processing
their reasonable accommodation requests;
2. From September 2013 to April 2015, Complainant’s workload was increased when
she had to review termination and removal actions;
3. On November 9, 2013, AD1 chastised Complainant in two emails;
4. In January 2014, S3 would not approve hiring an assistant to assist Complainant
with her workload;
5. On February 4 and 18, 2014, AD1 angrily questioned and chastised Complainant
for her actions as RA Coordinator.
6. In April 2014, S1 described Complainant’s performance as poor and threatened to
place her on a PIP;
7. In or around April 2014, S1 criticized her work, addressed meetings she missed,
and informed her that she was failing as the RA Coordinator during her midyear
performance evaluation meeting;
8. In May 2014, AD1 insinuated that Complainant was against management;
9. On May 23, 2014, AD1 said that Complainant was out of control and recommended
that Complainant no longer serve as RA Coordinator;
10. On May 23, 2014, AD1 sent someone to her office to ensure that she mailed out a
notice that a reasonable accommodation was being denied;
11. On May 26, 2014, S1 removed Complainant as the RA Coordinator;
12. In July 2014, S3 refused to speak with Complainant regarding problems in the
office; and
13. In September 2014, management blamed Complainant for allowing employees to
work from home as a reasonable accommodation;

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). In its final decision, the Agency dismissed claim 11 pursuant to 29 C.F.R.
§ 1614.107(a)(1) for stating the same claim as a claim that had previously been decided by the
Agency. The Agency noted that in Agency No. 200H-0310-2015102797 Complainant alleged that
she was discriminated against when on March 23, 2015, her RA Coordinator responsibilities were
reassigned, and that it had issued a final decision for this complaint on July 27, 2016. The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged in her remaining claims. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the EEO Investigator failed to request certain evidence,
such as HR1’s performance appraisals, and interview relevant witnesses, such as a former
Assistant Director (AD2). Complainant requests that the matter be remanded for a supplemental
investigation.

In response to Complainant’s appeal, the Agency contends that its investigation was sufficient and
that Complainant should have raised the alleged deficiencies prior requesting a final decision from
the Agency. The Agency argues that Complainant failed to establish by the preponderance of the
evidence that she was subjected to discrimination based on race. The Agency requests that its final
decision be affirmed.

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”).

As a preliminary matter, we address the Agency’s procedural dismissal of claim 11. We find that
the Agency erred in dismissing this claim in its final decision, as the record is clear that in this
complaint Complainant was referring to when her RA Coordinator duties were removed on May
26, 2014, not when they were removed again in March 2015. Because the record is sufficiently
developed to assess this allegation, we will address the merits of this claim.

Sufficiency of the Record

EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial
and appropriate factual record upon which to make findings on the claims raised in the complaint.
One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw
conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-
110, at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances
under which the alleged discrimination occurred; the treatment of members of the complainant’s
group as compared with the treatment of similarly situated employees...and any policies and/or
practices that may constitute or appear to constitute discrimination, even though they have not
been expressly cited by the complainant.” Id. at § IV.C.
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Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of
how it may affect the outcome.” Id. at § VI.D. Upon review, we find that the record is sufficiently
developed to assess the ultimate question of whether discrimination occurred.

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). She must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that she was discriminated against when she was required to begin reviewing
certain personnel issues. The Agency’s legitimate, nondiscriminatory reason for making the
assignment was that the task was not time consuming and could prevent certain EEO issues from
developing down the road. Here, Complainant has failed to establish that the Agency’s proffered
reason is pretextual.

Complainant alleged that she was subjected to discrimination when her RA Coordinator duties
were removed in May 2014. The Agency’s legitimate, nondiscriminatory reasons for reassigning
the duties were that Complainant was struggling to keep up with the growing reasonable
accommodation workload and that it was not possible to hire additional staff to assist Complainant.
We find that the preponderance of the evidence in the record does not establish that these
legitimate, nondiscriminatory reasons are a pretext designed to mask discrimination based on race.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.”
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Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar.
8, 1994).

Here, there is no evident connection between the alleged harassment and Complainant’s race.
Moreover, the alleged harassment appears to consist largely of regular communication between
management and an employee and is insufficiently severe or pervasive to constitute a hostile work
environment. Therefore, Complainant has failed to establish by preponderant evidence that she
was subjected to a discriminatory hostile work environment.

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 because the record is
adequately developed and because the preponderance of the evidence in the record does not
establish that discrimination occurred.

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.
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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

December 21, 2018
Date