Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 1, 2013

0120120319 (E.E.O.C. May. 1, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120120319

Hearing No. 490-2010-00068X

Agency No. 200L-0598-2009103361

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s November 2, 2011 final order1

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 final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patient Services
Assistant in the Central Business Office at the Central Arkansas Veterans Healthcare System in
Little Rock, Arkansas. On July 30, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against her and subjected her to a hostile work environment on the
bases of race (African-American), sex (female), age (47), and in reprisal for prior protected
EEO activity when:

1. On June 20, 2008, Complainant’s second-level supervisor (S2) alleged that
Complainant did not properly request leave on June 13, 2008, as she had no record of
Complainant calling in sick;

1 Complainant’s initial appeal of the AJ’s decision was premature; however, the Agency’s
subsequent issuance of the final order has cured the defect.
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2. On May 18, 2009, Complainant’s first-level supervisor (S1) threatened to write her up
for complaining about a co-worker;

3. On June 3, 2009, S1 lied to Complainant and intended to cause strife between
Complainant and the nursing staff when he informed Complainant that a nurse had
contacted him and asked why Complainant requested that the nurse hold a patient’s
checkout papers;

4. On July 1, 2009, Complainant was feeling ill and requested to go home and her request
was denied by management;

5. On July 13, 2009, S1 threatened Complainant with insubordination when they were
discussing his request for Complainant to relieve another co-worker (CW1) for his
lunch break; and,

6. On October 13, 2009, Complainant received a memorandum from S1 attempting to
change her duty assignment without proper notice.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on August 25, 2011, and issued a bench decision on October 3, 2011.

In her decision, the AJ assumed arguendo that Complainant had established a prima facie case
of discrimination and determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Regarding claim (1), on June 20, 2008, Complainant attempted to call
S2 to request sick leave. She could not reach S2, but spoke to another supervisor who
approved her leave request. A week later, S2 called Complainant into her office and told her
that she would be charged with absence without leave (AWOL) for that day since S2 did not
have any notice that Complainant called in sick. When Complainant explained the steps she
took to give S2 notice of her absence, S2 approved the leave and took no disciplinary action.

With respect to claim (2), testimony revealed that Complainant frequently complained about
having to relieve CW1 who often took long breaks and lunches. S1 denied threatening
Complainant with a write-up and testified that he encouraged his employees to submit their
complaints in writing so he could investigate them.

Regarding claim (3), on June 3, 2009, Complainant asked a charge nurse to hold the patients’
checkout papers for a short period of time while she was away from the checkout desk. CW1
contacted S1 asking why the nurses were holding the patients’ checkout papers. S1 then called
Complainant and falsely told her that the charge nurse had called him asking about the
checkout papers. S1 testified that he lied to Complainant because he did not want Complainant
to know that CW1 was the person who had contacted him since there was already a lot of
conflict between Complainant and CW1.
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As to claim (4), on July 1, 2009, Complainant reported to work at 8:00 a.m., but informed S1
that she was not feeling well and asked to go home. S1 testified that he had to check with S2
and the human resources office because he had never faced a situation where an employee
reported to work and immediately requested sick leave without a doctor’s appointment. In
addition, S1 testified that the office was already short-staffed that day. After checking with S2
and human resources, he allowed Complainant to take sick leave for the rest of the day. The
AJ determined that Complainant did not present any evidence of exigent medical circumstances
and that she worked a total of two hours before she was allowed to leave.

With respect to claim (5), on July 13, 2009, a co-worker was scheduled to relieve CW1 for
lunch, but she forgot and left for the day. S1 directed Complainant to relieve CW1 so that he
could go to lunch. Complainant questioned S1 as to why CW1 had waited so long to let him
know that he had not been relieved for lunch. S1 told Complainant that a failure to follow
instructions could be considered insubordination. Complainant followed the directive, and S1
did not write her up.

Finally, as to claim (6), S1 was instructed by his supervisors to detail someone to the
emergency room as a clerk for check-ins. One person volunteered, but later withdrew from
consideration. At S2’s instruction, S1 detailed Complainant to the position as the least senior
employee. S1 later learned that he was required to offer the detail to the most senior
employee. Thereafter, the original employee volunteered again for the detail assignment.

The AJ concluded that Complainant had presented no evidence that the Agency’s reasons for
its actions were pretextual. Further, the AJ found that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ
held that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the manner in which the AJ presided over the hearing
process. For example, Complainant objects to the AJ’s decision not to sanction the Agency for
failing to secure the attendance of one of her witnesses. Complainant alleges that the AJ and
the Agency were clearly working together in a conspiracy against her. Further, Complainant
contends that the AJ ignored the evidence in the investigative file and that it is clear that the
Agency discriminated against her. Accordingly, Complainant requests that the Commission
reverse the final order.

STANDARD OF REVIEW

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.”
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Universal Camera Corp. v. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant's objections to the manner in
which the AJ managed the hearing process and adjudicated her complaint. Complainant
alleges that the AJ exhibited bias against her, failed to act impartially, and did nothing when
the Agency failed to secure one of her witnesses. The hearing transcript reveals that the
Agency failed to notify both of Complainant’s approved witnesses of their scheduled
appearance at the hearing. The Agency was able to secure the appearance of one witness;
however, the other witness had been admitted to the hospital and was unable to appear. The
parties agreed that had the witness testified, she would have only testified regarding claim (5)
and most of her anticipated testimony was already in the record. Since the witness would not
have been able to appear due to her hospitalization and her testimony would have been limited
to the one claim, the AJ ultimately decided not to sanction the Agency for not securing her
appearance prior to hearing.

The Commission notes that EEOC regulations and Commission precedent provide AJs with
broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R.
§ 1614.109; see also EEO MD-110, at 9-10. The Commission has reviewed the hearing
transcript as well as other documentary evidence in the record and under the specific
circumstances presented, the Commission finds that the AJ did not abuse her discretion by not
sanctioning the Agency. Further, the Commission is unable to find any evidence of bias, or
other reversible error, resulting from the manner in which the AJ managed and adjudicated this
case. The Commission, however, strongly reminds the Agency of its responsibility to arrange
for the attendance of its Agency employees at hearings or face the possibility of future
sanctions. See 29 C.F.R. § 1615.109(f)(3).

Hostile Work Environment

Turning to the merits of the instant case, the Commission notes that harassment of an employee
that would not occur but for the employee's race, color, sex, national origin, age, disability,
religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v.
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Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is
hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct that is not severe or
pervasive enough to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510
U.S. at 22 (1993).

Here, Complainant asserted that based on her statutorily protected classes, management
continuously subjected her to a hostile work environment. Complainant alleged numerous
incidents of what she believed to be discriminatory and retaliatory harassment, including denial
of sick leave, threats of write-ups, and an attempt to change her duty assignment without
proper notice. The Commission finds that substantial record evidence supports the AJ’s
determination that Complainant has not shown that she was subjected to conduct sufficiently
severe or pervasive to rise to the level of a hostile work environment.

In addition, the Commission finds that Complainant failed to show that any of the alleged
incidents were unlawfully motivated. More specifically, as to claim (1), S2 testified that she
marked Complainant down as AWOL until she verified that Complainant had communicated
her sick leave request through another supervisor. Hr’g Tr., at 219-22. After she verified that
Complainant properly requested the leave, S2 changed the AWOL charge to the appropriate
approved leave. Id. at 222. With regard to claim (2), S1 testified that Complainant and CW1
had complained about each other frequently, but he did not reprimand Complainant. Id. at
173. S1 further testified that he had advised his employees to document in writing any
complaints so that he could properly address the matter. Id. at 172.

Regarding claim (3), S1 testified that he falsely told Complainant that the charge nurse asked
him about the patient checkouts to avoid any further conflict between Complainant and CW1.
Hr’g Tr., at 175-76. S1 testified that he immediately realized it was inappropriate to have lied
and later apologized to everyone involved. Id. at 176. As to claim (4), S1 testified that the
office was short-staffed when Complainant requested to go home sick and after briefly
consulting with S2 and the human resources office, he granted Complainant sick leave. Hr’g
Tr., at 164.

With respect to claim (5), S1 testified the he asked Complainant to cover CW1’s lunch after
another co-worker left early without covering the lunch break. Hr’g Tr., at 181. Complainant
expressed an unwillingness to do so, and S1 informed her that it could be considered
insubordination if she did not follow his instructions. Id. at 182. Complainant ultimately
complied and S1 did not take any disciplinary action.

Finally, as to claim (6), S1 testified that he was instructed to select someone for a detail
assignment to the emergency department. Hr’g Tr., at 184. One employee volunteered, but
later withdrew, and S2 directed S1 to select the employee with the least seniority. Id at 184-
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87. As a result, Complainant, as the least senior employee, was issued a letter informing her
of the assignment. After meeting with the union, management decided that the most senior
employee would be given the opportunity to go first in the detail assignment rotation instead
and the original volunteer agreed to the assignment. Id. at 186.

The Commission concludes that Complainant has not shown that any of the Agency's actions
were based on discriminatory or retaliatory animus and that Complainant was not subjected to
a hostile work environment as alleged. Substantial evidence supports the AJ’s findings of fact,
and we discern no basis to disturb her conclusions of law.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 1, 2013
Date