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

Equal Employment Opportunity Commission

Apr 23, 2014

0120131141 (E.E.O.C. Apr. 23, 2014)

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. 0120131141

Hearing No. 510-2012-00068X

Agency No. 200I04582011101653

DECISION
On January 14, 2013, Complainant filed an appeal from the Agency’s December 19, 2012 final
order 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a human resources
specialist handling claims filed by Agency employees for workers’ compensation. In Spring
2010, one of the employees, of whose medical condition Complainant was familiar, accused
Complainant of discussing her confidential medical information with other employees. This
employee requested that the Agency intervene. In response, in July 2010, the Agency
convened an Administrative Investigative Board (AIB) to address the allegation. Complainant
believed that rules pertaining to AIB investigations were not strictly adhered to with regard to
the accusations against her, and she was upset that she was not consulted about the accusations
prior to the convening of the AIB.

Concurrently, Complainant’s internet usage was being investigated by an information security
specialist because management suspected she was “misusing” the internet during work hours.
The investigation, which spanned six months, revealed that Complainant had visited 466
websites, over 250 of which were not work-related searches. Complainant had been
previously reprimanded for misusing the government’s computer.
0120131141

2

In November 2010, the Agency proposed to suspend Complainant for three days. The
suspension was based on the improper disclosure of medical information, misusing government
property, and failing to perform her job responsibilities.

On April 29, 2011, Complainant filed an EEO complaint alleging that the Agency harassed her
on the basis of reprisal for prior protected activity when:

1. From February 1, 2010 until January 8, 2011, she was micromanaged and required
to obtain prior approval before finalizing assignments;
2. On June 21, 2010, she was denied an opportunity to teach a class at the central
office;
3. On July 12, 2010, she was required to give a statement regarding a complaint
lodged against her without her having prior knowledge of the complaint;
4. On July 12, 2010, she was coerced into signing a document dated July 8, 2010,
giving her three days notice that she was the subject of an administrative
investigation;
5. On or about August 17, 2010, her errata sheet was not submitted with her original
affidavit pertaining to the administrative investigation;
6. On November 2, 2010, she was issued a proposed suspension which was sustained
on January 20, 2011.

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). Complainant timely requested a hearing, and the AJ held a hearing
on October 11, 2012, and issued a decision on November 30, 2012.

In her decision, the AJ found that despite her allegation of being micro-managed, Complainant
admitted that her work had always been subject to oversight. The AJ credited management’s
testimony that in early 2009, a labor relations specialist became the lead human resource
specialist to add another layer of review because of rising workers’ compensation costs which
the Agency believed could be controlled and reduced with additional oversight. The AJ further
found that Agency clearly justified its need to monitor Complainant's performance given her
penchant to surf the web while at work. The AJ did not find Complainant’s attempts to deny
that she had misused the government’s property credible, given the excessive number of
websites Complainant had visited during work hours.

With regard to the AIB issues, the AJ found that Complainant was not entitled to the notice to
which she believed she was entitled and that there was no evidence to support the allegation
that she was coerced into signing a statement. The AJ also found that:

Complainant seemed unwilling to comprehend that as a human resource
specialist she is held to a higher standard than other employees. She knows
private protected information on a number of employees which she is expected
0120131141

3
to keep confidential. This confidentiality is not waived because some other
individual may also know about an individual’s condition. Her position
proscribed her from speaking about an employee's condition. She failed to
uphold her obligations and was disciplined as a result.

AJ Decision at 14. The AJ also found that the Agency denied Complainant the opportunity to
teach the class in question because she was being investigated for such a serious offense of
disclosure.

Finally, the AJ found that there was simply no nexus between Complainant’s protected activity
– which consisted of her assisting her then boyfriend in filing an EEO complaint – and the
actions about which she complained. The AJ concluded that the Agency provided legitimate
non-discriminatory reasons for the actions it took against Complainant, and that these actions,
individually or collectively, did not rise to the level of harassment. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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.”
Universal Camera Corp. v. National Labor Relations Board, 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

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
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, prior protected activity. Only if
Complainant establishes both of those elements, does the question of vicarious liability for
supervisory harassment present itself.

We agree with the AJ that Complainant failed to prove retaliatory harassment. The AJ found
that management credibly testified to its legitimate and nondiscriminatory explanations for
convening the AIB, monitoring Complainant’s internet use and issuing her discipline. The AJ
0120131141

4
found Complainant’s testimony inconsistent and lacking credibility. There is nothing in the
record which would cause us not to credit these determinations. The conduct about which
Complainant complains was in response to Complainant’s own misconduct, and while we
understand why it upset Complainant, a reasonable person in her position would not have
found it to be hostile or abusive. We discern no basis to disturb the AJ’s decision, and we
AFFIRM the Agency’s final order.

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
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”
0120131141

5
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

Date
April 23, 2014