Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 26, 2014

0120131950 (E.E.O.C. Aug. 26, 2014)

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

,
Complainant,

v.

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

Appeal No. 0120131950

Hearing No. 420-2012-00005X

Agency No. 200I-0619-2011100469

DECISION
This March 19, 2013 appeal from the Agency’s February 28, 2013, final order concerns an
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 for de novo review
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 Support Services
Supervisor at the Agency’s medical center in Tuskegee, Alabama. According to
Complainant’s position description, her position was located within the Supply, Processing &
Distribution (SPD) subdivision. Investigative Report (IR) 228. Between November 2, 2010
and February 8, 2011, she had been in contact with an EEO counselor. Complainant passed
away ten days later, on February 18, 2011. On March 1, 2011, Complainant’s estate filed an
EEO complaint alleging that the Agency discriminated against her on the bases of sex (female)
and in reprisal for prior protected EEO activity when:

A. On September 21, 2010, Complainant was issued an admonishment.

B. On January 7, 2011, Complainant received less than successful on the five core
competencies in her 90-day performance review.

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C. Between September 2010 and February 2011, Complainant was subjected to a hostile
work environment which comprised the following incidents:

1. Upon her return from active duty on September 15, 2010, she was notified that she
would be assigned to logistics as a medical supply technician.

2. On September 15, 2010, Complainant was denied the opportunity to take a refresher
course.

3. On September 16, 2010, the Logistics Management Chief shouted at Complainant,
“Are you a supervisor or what?” and responded to her objection by telling her, “Well,
do what you got to do.”

4. On September 21, 2010, the Personal Property Manager yelled at Complainant and told
her she had a nasty attitude and was very unprofessional.

5. On September 31, 2010, Complainant’s request to have a representative at the meeting
during which she was issued an admonishment was denied.

6. On October 1 and 30, 2010, Complainant was issued letters of inquiry regarding her
alleged misuses of VA resources and submission of fraudulent military orders.

7. On October 1 and 31, 2010, the Logistics Management Chief snatched the letters of
inquiry out of Complainant’s hand and erroneously indicated that she refused to sign the
documents.

8. On October 4, 2010, the Logistics Operations Supervisor told Complainant that she was
in charge of the mailroom and warehouse and told her that she would be writing
Complainant’s evaluations despite not being Complainant’s supervisor.

9. On October 5, 2010, Complainant was falsely accused of coercing another employee to
contact a union representative.

10. On October 8, 2010, Complainant learned that she did not receive her first payroll
check on the same date (October 1, 2010) as the other employees.

11. On November 3, 2010, the Personal Property Manager created a safety issue when she
told the mailroom staff to use a back entrance that heads through the warehouse.

12. By memorandum dated December 10, 2010, Complainant was issued a proposed
removal;

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13. On February 8, 2011, Complainant’s military commander informed her that the
Logistics Management Chief called him at home and stated that Complainant would
lose her job if she continued to go on military leave.

The complaint identified Complainant’s first-line supervisor, the Personal Property Manager
(S1) and her second-line supervisor, the Logistics Management Chief (S2) as being responsible
for the alleged acts of discrimination and retaliation. At the conclusion of the investigation, the
Agency provided Complainant’s estate with a copy of the report of investigation and notice of
its right to request a hearing before an EEOC Administrative Judge (AJ). Complainant’s estate
timely requested a hearing. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing issued a decision without a hearing on February 11, 2013.
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.

Claim A - Admonishment

: On September 16, 2010, a former employee was present in the
mailroom without authorization while Complainant was on duty. In his affidavit, S2 stated that
he directed Complainant to ask the individual to leave, but that Complainant still had not done
so after 45 minutes had passed. After bringing the matter to the attention of S1 and consulting
with a human resources specialist, S2 issued Complainant an admonishment for failing to abide
by Standard Operating Procedure (SOP) No. 23, a mailroom protocol which states that
mailroom staffs are responsible for ensuring that only authorized personnel are granted
admission into the mailroom. Complainant received the admonishment on September 21,
2010. IR 88-89, 100, 114, 213.
Claim B – Interim Performance Review

: Complainant received a 90-day performance review
from S1 on January 7, 2011. S1 rated Complainant as less than fully successful on the key
core competencies of interpersonal effectiveness, systems thinking, decisive leadership,
accountability, conflict resolution, and handling contacts with tact and diplomacy. S1 averred
that the purpose of the review was to provide an interim assessment of an employee’s strengths
and to point out areas where performance could be improved. S1 further stated that she did
not see evidence of the foregoing attributes in Complainant’s performance up until that point.
IR 89-90, 101-02, 146-47, 149.
Claim C – Hostile Work Environment

:
Incident (1) - Complainant returned to work on September 15, 2010, after two years on active
military duty. She informed the EEO counselor that S1 had told her that she would be
assigned to logistics as a medical supply technician, which was not what she had been doing
before her mobilization. S1 averred that the SPD was shorthanded that day, and that she had
asked Complainant if she would not mind helping out in another section of the SPD. Both S1
and S2 stated that Complainant initially complied with their request, and that after lunch, she
was allowed to return to her previous position in the mailroom. IR 8, 32, 90, 103, 123.

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Incident (2) - Complainant next contended that she was denied the opportunity to take a
refresher course she should have received under the Uniformed Services Employment and
Reemployment Rights Act. S2 averred that the course Complainant wanted to take was online
and available on demand through the Agency’s learning management system. IR 8, 32, 91,
120.

Incident (3) - Complainant told the counselor that on September 16, 2010, S2 shouted at
Complainant, demanding to know how long she would allow the unauthorized individual to
remain in the mailroom and also demanding her to do her job as a supervisor. In his affidavit,
S2 reiterated that he had told Complainant to ask the individual whose presence in the
mailroom was not authorized to leave the area, but that after 45 minutes, the individual was
still there. S2 averred that he advised S1 to bring Complainant to his office, and that he again
reminded Complainant of her responsibilities as a supervisor not to allow unauthorized
personnel to be in the mailroom. S1 reported that Complainant “blew up” after this
conversation. IR 9, 32, 91, 103, 120, 124-25.

Incident (4) - Complainant next reported that during a meeting between herself, S1, and S2 that
took place on September 21, 2010, concerning the admonishment referenced in Claim A
above, S1 shouted at her, telling her that she had a “nasty attitude” and was “very
unprofessional. S1 denied yelling at Complainant or any other employee, but she opined to the
investigator that Complainant’s behavior was “unbecoming for a supervisor.” IR 9, 32, 103,
104, 120, 127.

Incident (5) - Complainant also reported that, during the same meeting, she asked to have a
union representative present with her and that S2 refused to grant her request. S2 had
explained to Complainant that he would not meet with a union representative because
Complainant was a supervisor, and therefore a non-bargaining unit employee. S2 averred that
he did tell Complainant that she could bring someone with her who was not a representative,
and that Complainant had brought a union representative with her anyway. IR 9-10, 32, 92,
107, 120, 125-26.

Incident (6) - The investigative file includes a letter of inquiry from S2 to Complainant dated
October 1, 2010, and a second letter of inquiry dated October 31, 2010. In the October 1
letter, S2 asked complainant to respond to a report that she had misused agency resources to
print thousands of copies of welcome packets. S2 averred that Complainant used the facilities
printing services for non-agency purposes and that she used the Agency’s Federal Express
account to ship the printed matter in several boxes, causing the Agency to incur the expense. In
the second letter, S2 asked Complainant to respond to charges that she had requested and
obtained 32 hours of military leave using military orders that were not official. S2 reported
that he contacted the personnel office of Complainant’s military unit and was advised that
neither the orders submitted by Complainant nor the training purportedly covered by those
orders existed. In an affidavit that Complainant prepared to rebut the charges, Complainant
acknowledged that she utilized the print and postage services, but denied that she misused
government funds in doing so. IR 10-11, 32, 92, 104, 136, 181-84.
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Incident (7) - Complainant next told the EEO counselor that on those same dates, S2 snatched
the letters of inquiry out of her hand, erroneously indicating that Complainant refused to sign
them. S2 denied forcing the letters from Complainant’s hand, but reiterated that Complainant
did refuse to sign them. Complainant’s signature is absent from the documents, but the
handwritten notation, “refused to sign” is present. IR 11, 33, 93, 104, 127, 181-82.

Incident (8) - Complainant next informed the EEO counselor that on October 4, 2010, the
Logistics Operations Supervisor (SL) told Complainant that she would be in charge of the mail
room and would be preparing the performance appraisals for Complainant and her staff. SL
told the investigator that the division secretary had given her the paperwork for the appraisals
of all staff members, including Complainant, and that when she contacted Complainant to
advise her about the appraisal, Complainant responded that she was working under S1, not SL.
SL contacted S1 and promptly turned over all information she had concerning mailroom
personnel to S1. On October 22, S1 sent Complainant an email on behalf of herself and SL,
apologizing for the misunderstanding and reaffirming Complainant’s status as a mailroom
supervisor. IR 12, 33, 109, 158-59, 165.

Incident (9) - Complainant next asserted that on October 5, 2010, S1 and S2 falsely accused
her of coercing another employee to contact a union representative. Neither S1 nor S2
reported having any knowledge about that matter. IR 12, 33, 93, 104-05.

Incident (10) - Complainant next reported that on October 8, 2010, she learned that all of the
other employees received their payroll checks on October 1, 2010, whereas she did not. S2
averred that on the day Complainant returned, he initiated and signed the paperwork and sent it
to the human resources office. He also stated that at that point, it would have been the
employee’s responsibility to follow up with human resources in order to ensure that the
paperwork went through. He also stated that he was not sure whether the paperwork was
submitted by the cut-off date. S1 averred that when she heard that Complainant did not get her
paycheck, she went to the timekeeper to straighten the matter out. S1 emphasized that no one
deliberately withheld Complainant’s pay. IR 13, 33, 93, 105.

Incident (11) – The investigative file includes an email from S1 to Complainant dated
November 3, 2010. In that email, S1 states that she had repeatedly reminded Complainant and
her staff not to use the back door in the mailroom unless there was an emergency. S1 also
stated that by disobeying her instructions, Complainant was demonstrating a conduct deficiency
that would necessitate other actions. In her affidavit, S1 stated that mailroom employees were
picking up loaded carts and carrying them down the steps from the back door rather than using
the ramp at the side door. S1 maintained that this was a safety issue due to the possibility of
employees incurring back injuries. IR 94, 105, 156.

Incident (12) – On December 10, 2010, S2 issued complainant a notice of proposed removal
on the basis of the results he received from the letters of inquiry at issue in incident (6). The
charges included misuse of government funds in connection with the printing of materials and
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submitting fraudulent military orders to support a request for 32 hours of leave. Complainant
submitted a rebuttal to the charges in an affidavit dated December 27, 2010. The first charge
documented a previous incident in which Complainant had been suspended in 2005, for
misusing government resources in connection with printing t-shirts for a family reunion. As to
fraudulent military orders documented in the second charge, an email from the resource
management officer of Complainant’s military command to S2 dated October 29, 2010, states
that the orders submitted by Complainant were, in fact, invalid. The human resources
specialist averred that Complainant had passed away before the removal could be carried out.
IR 94, 106, 115, 136-37,179-80, 187-88, 194-95.

Incident (13) – Complainant told the EEO counselor that S2 had called her military commander
at home and told the commander that Complainant could lose her job if she continued to go on
military duty. S2 averred that he contacted the commander to ask about a notice for a training
exercise and to verify Complainant’s attendance at that exercise. S2 stated that the commander
informed him that the unit normally gives its members 30 days advance notice, unless they are
being called up in response to a national emergency, in which case, notice might be one or two
days in advance. He also stated that this contact had occurred after Complainant had already
submitted fraudulent military orders. S2 denied that he said anything to the commander about
Complainant losing her job. IR 13, 33, 94-95.

On appeal, Complainant’s estate contests the AJ’s decision on its merits. The agency responds
that the appeal should be dismissed because Complainant’s mother, who filed the appeal on
behalf of the estate, lacks authority to take legal action on behalf of her daughter’s estate.
When EEO counseling was concluded, however, Complainant’s mother signed the notice of
right to file a complaint as well as the complaint itself. IR 28, 35. The record includes a letter
from Complainant’s mother to the Agency’s regional personnel officer dated March 1, 2011, in
which Complainant’s mother explicitly stated that her daughter had named her as personal
representative in her last will and testament. IR 39. A copy of the investigative file, together
with the notice of right to request a hearing or an immediate final decision was sent to
Complainant’s mother and given United Parcel Service tracking number 1Z-A59-13W-02-
9451-1089. Also, a copy of the agency’s final order was sent to Complainant’s mother via
certified U.S. mail with return receipt number 7012-1010-0002-1891-2643.

ANALYSIS AND FINDINGS
The Commission has long held that a party seeking to have a matter dismissed must provide
evidence supporting that dismissal. See Guy v. Department of Energy
. It is apparent that the agency regarded Complainant’s mother as
having the authority to represent Complainant’s estate even before the filing of the formal
complaint, as evidenced by the fact that the agency sent the notice of right to file directly to
Complainant’s mother. Furthermore, Complainant’s mother notified the Agency on the date
that she signed the formal complaint that she would be acting as Complainant’s personal
representative. The Agency did not protest when Complainant’s mother signed the formal
complaint on behalf of Complainant’s estate, which became the party of record as a result of
, EEOC Request No.
05930703 (January 4, 1994)
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Complainant having contacted an EEO counselor before she died. Estate of Paul Stanton v.
Department of the Navy

, EEOC Appeal No. 0120101517 (August 20, 2010). To the contrary,
the agency sent Complainant’s mother copies of the case file and all critical correspondence,
including the notice of right to request a hearing or a final decision and the final order itself.
Accordingly, we find that the Agency has not submitted evidence sufficient to justify its
request to have the appeal dismissed, and we will now decide the appeal on its merits.
The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" if it
has the potential to affect the outcome of the case. Abeijon v. Department of Homeland
Security, EEOC Appeal No. 0120080156 (August 8, 2012). The evidence of the non-moving
party must be believed at the summary judgment stage and all justifiable inferences must be
drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255
(1986).

Claims A & B – Disparate Treatment
To raise a genuine issue of material fact in a disparate treatment claim such as this,
Complainant’s estate would have to show that there is a factual dispute under the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). Initially, the estate would have to show that Complainant was
subjected to adverse employment actions under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters

, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with, however, since S1 and S 2 have articulated
legitimate and nondiscriminatory reasons for the act ions t hey h ad taken with respect t o
Complainant. See U.S. Postal Serv. Bd. of Governors v. Aikens

, 460 U.S. 711, 713-17
(1983). Regarding the admonishment at issue in claim (A), S2 stated that Complainant had
violated a standard operating procedure by allowing a former employee without authorization
to be in the mailroom to remain at that location for up to 45 minutes after he had told her to
ask the former employee to leave. As to the interim appraisal at issue in claim (B), S1 stated
that, as of the date of her 90-day review, Complainant needed to improve in several areas of
her performance, including interpersonal effectiveness, systems thinking, and conflict
resolution. We find these reasons to be legitimate and nondiscriminatory.
To avoid summary judgment, the estate would present enough evidence to raise a genuine issue
of material fact as to whether the Agency's proffered explanations for its actions are a pretext
for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000).
Interpreting the evidence in the light most favorable to Complainant’s estate, we find that it has
not done so. Regarding the admonishment, both S1 and S2 have attested to the fact that there
was an unauthorized individual in the mailroom on Complainant’s watch, that Complainant was
reminded of her responsibilities as a supervisor under SOP No. 23 to ensure that no
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unauthorized personnel are allowed access to the mailroom, and that Complainant violated this
policy by not directing the former employee to leave the mailroom immediately after being
directed to do so by S2. As to the interim appraisal, the document merely highlighted those
aspects of Complainant’s performance as a supervisor that Complainant could improve upon.
S1 maintained that she based her assessment entirely on her observations of Complainant’s
day-to-day functioning in her supervisory job. Complainant’s has not presented any documents
or affidavits that contradict the sworn statements made by S1 and S2. The evidence is
insufficient to support an inference that Complainant’s gender or previous EEO activity were
factors in her receipt of an admonishment from S2 on September 16, 2010, or in the interim
performance review that occurred on January 7, 2011. The AJ was therefore correct in
concluding that no genuine issue of material fact exists with respect to Claims A and B.

Claim C – Hostile Work Environment
To survive summary judgment where the matter at issue involves discriminatory or retaliatory
harassment, Complainant’s estate would have to present enough evidence to raise a genuine
issue of material fact as to whether Complainant was subjected to severe or pervasive conduct
by S1 or S2 because of her sex or previous EEO activity. See Wibstad v. U.S. Postal Serv.

,
EEOC Appeal No. 01972699 (Aug. 14, 1998). Again, interpreting the evidentiary record
pertaining to the aforementioned incidents in a light most favorable to Complainant, we can
discern no genuine issue of material fact with respect to any of the incidents that occurred
between September 2010 and February 2011. None of those incidents, either individually or
collectively, were so severe or pervasive as to rise to the level of harassment. The letters of
inquiry at issue in incident (6) and the notice of proposed removal at issue in incident (12)
were based on documented factual findings that Complainant had misused agency funds and
had submitted fraudulent military orders regarding attendance at training. The remaining
incidents appear to be the reactions of S1 and S2 to Complainant’s outbursts of temper, acts of
insubordination, or past behavior. Moreover, as with claims (A) and (B), the record contains
no documents or affidavits beyond Complainant’s speculations tending to show that her gender
or previous EEO activity were ever considered by S1 or S2 in any of the incidents in question.

CONCLUSION
The Commission finds that the reasons articulated by S1 and S2 for their actions vis-à-vis
Complainant are fully supported by the record. Consequently, we find no genuine issue of
material fact as to whether Complainant’s gender or previous EEO activity were factors in any
of the claims set forth in the complaint filed by Complainant’s estate. Based on a thorough
review of the record and the contentions on appeal, we AFFIRM the agency’s final order.
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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”
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.

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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
August 26, 2014