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

Equal Employment Opportunity Commission

Mar 20, 2013

0120120459 (E.E.O.C. Mar. 20, 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. 0120120459

Hearing Nos. 570-2008-00266X; 570-2010-00936X

Agency Nos. 0705-2004-2007100884; 0705-2004-2007103868; 0705-2004-2008103894

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 14, 2011 final order concerning her equal employment opportunity (EEO)
complaints 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an EEO Counselor
with the Agency’s Office of Resolution Management at the Mid-Atlantic Field Office in
Washington, D.C. Complainant filed two formal complaints (Agency Nos. 0705-2004-
2007100884 and 0705-2004-2007103868) alleging that the Agency discriminated against her
and subjected her to a hostile work environment on the bases of race (African-American) and
in reprisal for prior protected EEO activity when:

1. On or about October 31, 2006, and in December 2006, she received written
counseling letters through email;

2. Her December 18, 2006 leave request was denied;

3. On or about December 20, 2006, she received a Letter of Reprimand;

4. On or about December 4, 2006, and in January 2007, her request to work extra
hours to catch up on work was denied;
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5. On or about January 3, 2007, she was not allowed to take a lunch break;

6. On or about January 29, 2007, she was placed on a Performance Improvement Plan
(PIP);

7. In January 2007, her supervisor (S1) scheduled meetings at times inconvenient for
her or with little notice;

8. In January 2007, Complainant was denied the opportunity to complete an advanced
counselor course;

9. On March 25 through March 29, 2007, she was suspended;

10. She was subjected to harassing remarks or threats by her supervisors in November
and December 2006 and in January 2007;

11. Complainant was not selected for the position of EEO Specialist Investigator, GS-
12; and

12. On June 22, 2007, Complainant received an unsatisfactory rating on her
Performance Improvement Plan.

Complainant filed a third EEO complaint (Agency No. 0705-2004-2008103894) alleging that
the Agency discriminated against her and subjected her to a hostile work environment on the
bases of race and in reprisal for prior protected EEO activity when: she was placed on
administrative leave pending removal and was subsequently removed; she had to turn in all
government-owned equipment; and she had to box up all of her personal items, and they were
inspected.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ consolidated the
complaints, held a hearing on May 19 and June 9, 2011, and issued a decision on August 4,
2011.

In the decision, the AJ assumed arguendo that Complainant had established a prima facie case
of discrimination and reprisal as to all claims and found that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1),
Complainant’s supervisor (S1) testified that Complainant failed to comply with her directive
and kept sending emails disagreeing with her and being disruptive. The AJ found that there
was no evidence that Complainant actually received a letter of counseling regarding the matter;
rather, S1 told Complainant to talk to her team leaders and the administrative officer to resolve
her issues. Regarding claim (2), S1 testified that Complainant’s request for two weeks of
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annual leave was denied because it was untimely requested. Agency policy required
employees to request such a large amount leave at the beginning of the year so that
management could make arrangements for adequate coverage during the holidays. In addition,
Complainant had several incomplete time-sensitive assignments at the time she requested the
two weeks of annual leave.

With respect to claim (3), S1 confirmed that she issued Complainant a Letter of Reprimand
because her work was significantly deficient. S1 testified that Complainant’s work was turned
in late, incomplete, had significant errors, required major corrections and other employees had
to finish her tasks. S1 added that she had to take some of Complainant’s cases and work on
them herself because the Agency was facing the possibility of sanctions. Additionally,
Complainant refused to keep her work on the network shared drive and when other employees
had to finish her work, the files were inaccessible.

As to claim (4), S1 denied Complainant’s request for overtime and compensatory time because
her requests were untimely. Further, S1 added that even when her requests for overtime were
granted, Complainant’s work did not improve. With respect to claim (5), S1 explained that
Complainant’s request to take a lunch break conflicted with her assigned duty to answer
telephone calls from the public. Complainant's assigned lunch break was scheduled between
11:00 a.m. and 2:00 p.m., but Complainant wanted to take a break at 2:10 p.m.

In regard to claim (6), S1 testified that Complainant was placed on a PIP because her
performance was seriously deficient. Complainant was notified at her mid-year review that her
work was not improving and was told of the specific areas that required improvement, but
Complainant still failed several critical elements. Further, regarding claim (7), S1 testified that
she always sent emails to her staff notifying them of scheduled meetings. With respect to
claim (8), S1 denied Complainant’s request to attend an advanced counselor course because the
course would not benefit Complainant as she was not performing at the advanced level.

As to claim (9), S1 testified that Complainant was suspended for her failure to follow proper
leave procedures. Complainant had been informed on numerous occasions that her requests
were untimely and she failed to adhere to the established leave procedures. In addition,
regarding claim (10), S1 denied making any threatening or harassing remarks.

With respect to claim (11), S1 testified that Complainant was deemed qualified, but did not
make the best qualified list. Complainant received a total score of 86, the lowest of the group
and was not interviewed. The selectee received a total score of 98. Regarding claim (12), S1
testified that Complainant did not improve her work performance while she was on the PIP;
therefore, she received the low rating.

As to Complainant’s claims related to her termination, the Field Manager (M1) testified that he
followed Agency procedures in placing Complainant on administrative leave prior to her
termination; requesting that she turn in her office keys, government credit card, badge; and
asking that she box up her personal belongings. M1 stated he searched her belongings to
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ensure no government property was taken and discovered case files that management believed
had been lost and other Agency property. Complainant’s second-level supervisor (S2) testified
that her decision to terminate Complainant was based on Complainant’s unsatisfactory
performance and prior disciplinary actions. S2 added that in her opinion Complainant's job-
related deficiencies required termination as they prevented her from being rehabilitated.

The AJ concluded that Complainant failed to present any evidence that the Agency’s reasons
for its actions were pretextual. Additionally, 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was continuously harassed and retaliated against for
filing EEO complaints. Complainant argues that the record was not fully developed and she
was not given due process as the AJ denied several of her proposed witnesses. Further,
Complainant alleges that S1 scrutinized her work, and other employees had performance
problems as well. Finally, Complainant states that she never received a “detailed” hearing
transcript despite her repeated requests.

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. 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).

As an initial matter, the Commission notes that Complainant claims that she did not receive a
“detailed” hearing transcript like those that she received in previous complaints. Complainant
does not dispute that a copy of the transcript was mailed to her attorney at the time; rather, she
asserts what was received “was not comprised in the usual and acceptable manner of an official
transcript.” Complainant has not identified what she believes was missing or specifically how
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the transcript was insufficient. Accordingly, Complainant has not shown that she was impaired
or otherwise prevented from fully preparing her appeal.

Additionally, to the extent that Complainant alleges that the AJ erred in disallowing several of
her witnesses from testifying, the Commission notes that EEOC regulations and Commission
precedent provide AJs with broad discretion in the conduct of a hearing. See 29 C.F.R.
§ 1614.109; see also EEO MD-110, at 9-10. The Commission finds that Complainant has
failed to demonstrate that the AJ abused his discretion in denying some witnesses from
testifying as their testimony was not relevant to the claims presented in this case. Further, the
Commission has reviewed the hearing transcript as well as other documentary evidence in the
record and is unable to find evidence of bias, or other reversible error, resulting from the
manner in which the AJ managed and adjudicated this case.

ANALYSIS AND FINDINGS

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. Corp. 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). 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

Upon review, the Commission finds that the AJ's findings of fact are supported by substantial
evidence. The Commission finds that the Agency has articulated legitimate, nondiscriminatory
reasons for its actions. Namely, as to claim (1), S1 testified Complainant had numerous
disagreements with co-workers regarding various matters over email which S1 found to be
disruptive. Hr’g Tr. Vol. 1, at 41. S1 instructed Complainant to stop sending multiple emails
back and forth and instead work with the Team Leader and the Administrative Officer to
resolve the issues. Id. Regarding claims (2) and (3), Complainant’s request for two weeks
leave around the holidays in 2006, was denied because she did not request it earlier in the year,
and other employees had already been scheduled off at that time. Hr’g Tr. Vol. 1, at 45. S1
did approve part of Complainant’s leave request with the condition that her work was caught
up. Id. at 45-46. On her last day before going out on leave, Complainant turned in several
reports with significant errors. Id. at 49. S1 then called Complainant back in to work on some
of those reports because they were time-sensitive and the Agency was facing sanctions. Id. at
51-52. The reports needed so much review and revision that S1 and other employees had to
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complete many of them. Id. at 52. As a result, S1 issued Complainant a reprimand for
careless workmanship and untimely assignments. Id. at 134.

With regard to claim (4), S1 testified that initially she approved Complainant’s requests for
compensatory time; however, she began denying them when it became too frequent. Hr’g Tr.,
Vol. 1, at 63. S1 reminded Complainant that she needed to complete her work during her
regular work hours. Id. at 63-64. As to claim (5), S1 testified that Complainant attempted to
take a lunch break much later than her appointed time and S1 reminded her that lunchtime
breaks were to be taken between 11:00 a.m. and 2:00 p.m. Hr’g Tr., at 74-75. S1 added that
counselors are required to take lunch during that time period to ensure coverage on the phones.
Id. at 76. Further, counselors who needed to work through their lunch were required to
inform the Team Lead or someone in management, and Complainant failed to do so. Id. at 75.

Regarding claims (6) and (12), S1 testified that Complainant had initially been reassigned to
Washington because of her poor performance and even after her reassignment, her work did
not improve. Hr’g Tr., at 85. Complainant was failing critical elements: Counseling and
Administrative File and noncritical elements: Professionalism and Communication. Id. at 87.
As a result, S1 placed Complainant on a PIP to attempt to address her performance issues.
Complainant’s performance did not improve under the PIP, and S1 rated her as
“Unsatisfactory” on her performance appraisal. With respect to claim (7), S1 testified that she
tried to give employees advance notice when she needed to meet with them, but if she had to
meet with someone and it was not a good time, she would reschedule. Hr’g Tr., Vol. 1, at
119.

In regard to claim (8), S1 testified that she denied Complainant’s request to attend an advanced
counselor course because Complainant was not performing satisfactorily doing basic counseling
activities, and she did not believe it would have been beneficial for her to attend an advanced
course. Hr’g Tr., Vol. 1, at 197. As to claim (9), S1 testified that Complainant was
suspended for not following the Agency’s leave request procedures. Hr’g Tr., Vol. 1, at 126.
Complainant failed to report for duty on January 22, 2007, and did not contact S1 or her
designee and request leave. Id. at 127. S1 decided to suspend Complainant based on an
ongoing pattern of not following the proper procedure. Id. at 127-28. Regarding claim (10),
S1 denied making any harassing or threatening remarks and testified that Complainant brought
up filing an EEO complaint during a meeting, and S1 simply responded that she had the right
to do so. Id. at 125.

With respect to claim (11), S1 testified that the review panel ranked the applicants for the
position and interviewed the top three candidates. Hr’g Tr., Vol. 1, at 142. Complainant’s
application received a score of 86, ranking her fifth. As a result, Complainant was not
recommended to the selecting official, S1, as one of the top three candidates. Id. at 143.

Finally, regarding her termination, S2 testified that she decided to terminate Complainant after
reviewing Complainant’s work, documented performance problems, and prior discipline. Hr’g
Tr., Vol. 1, at 235-36. S2 added that it was Agency standard procedure to place an employee
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on administrative leave prior to termination. Id. at 244. After Complainant was terminated,
she was asked to return her identification badge, keys, and government credit card.
Complainant was allowed to pack up her personal belongings but did not return to retrieve the
boxes until weeks later. Hr’g Tr., Vol. 2, at 338. A supervisor was unable to find cases that
Complainant had in her possession and had to access the boxes to ensure Complainant had not
packed up Agency property and personal information. Id. at 340. The supervisor retrieved
some files from the boxes and others from around her desk. Id. at 341.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256. The Commission finds that the substantial record evidence supports
that Complainant failed to establish pretext. The record and facts gleaned at the hearing fail to
prove any evidence purporting to show the Agency's actions were pretext for discriminatory or
retaliatory animus. As a result, the Commission finds that Complainant was not discriminated
or retaliated against as alleged.

Finally, to the extent that Complainant contends that she was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of
hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission finds that substantial
record evidence supports that all of the alleged incidents were not sufficiently severe or
pervasive to rise to the level of a hostile work environment. Moreover, a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory or
retaliatory animus, as discussed above. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000).1

1 The Commission notes that on appeal, Complainant made repeated references to a 2002
complaint that she claims the Commission lost. The record contains correspondence from the
Commission informing Complainant that the Commission issued a decision in v. Dep’t
of Veterans Affairs, EEOC Appeal No. 0120080301 on September 16, 2009, which addressed
the claims raised in her 2002 complaint. Additionally, Complainant was informed that if she
believed another matter had been lost or unresolved by the Commission, to provide more
information (i.e., a complaint number or appeal date) to allow the Commission to review the
matter. Complainant has provided no other information regarding a “lost” complaint.
Additionally, a review of Commission records indicates that Complainant has no other open
matters before the Commission as of the date of this decision.
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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 (Nov. 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”
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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

March 20, 2013
Date