0120130829
03-04-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130829
Agency No. 2003-0657-2010102673
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 20, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Administrative Officer at the Agency's Medicine Service, Veterans Affairs Medical Center in St. Louis, Missouri.
On May 26, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the basis of age (over 40) when:
1. in June 2009, the Chief of Medicine Service (Chief) denied her request to serve in the role as Facilitator in Customer Service;
2. on September 23, 2009, the Chief denied her request to serve as the Chairperson of the Combined Federal Campaign;
3. in October 2009, the Chief told her "you know, I can cancel that leave, don't you" even though the Chief had already approved the leave;
4. on November 12, 2009, the Chief issued Complainant her annual performance appraisal in which he rated her "fully successful;"
5. in February 2010, the Chief told her "he did not think anything would come of it, it is not going to do any good." The Chief made this statement a few times in February 2010, after the Complainant submitted a rewritten position description;
6. on April 5, 2010, the Chief stated to her "that's what you get for taking time off." This statement was made in regard to an action that an employee submitted while Complainant was on leave that had not been completed;
7. on April 6, 2010, the Chief "used a hostile tone of voice" when he asked her if she was still looking for another job;
8. on April 15, 2010, the Chief informed her that she could no longer attend Service Chief meetings even though she had attended in his absence before;
9. on April 15, 2010, the Chief stated to her "what do you expect me to do, complete it?" The Chief made this statement after Complainant submitted a document to him for signature;
10. on April 19, 2010 and ongoing, the Chief would greet the secretary in the morning but would give Complainant "the silent treatment;"
11. on May 10, 2010, she informed the Chief that a quality management review indicated that the humidity was too high in one of their work areas. The Chief responded by saying maybe the person taking the reading "was having a hot flash;" and
12. on May 18, 2010, the Chief informed her that she would not be serving as the point of contact (POC) for the Joint Commission Response even though other services have their Administrative Officers serve as the POC.
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew her hearing request. Consequently, the Agency issued the instant final decision on November 20, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the basis of age. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. The Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant, on appeal, argues that the Agency erred finding no discrimination because "evidence adduced during investigation reflects that Complainant was not only treated differently based on age "but that gender plus age played a part in the discrimination and harassment that Complainant experience [emphasis in its original]."
Further, Complainant argues that the investigator did not do an adequate job. For instance, Complainant argues that the investigator "did not include information that he contacted all of the individuals identified by Complainant...further, without explanation the EEO investigator included summaries of the witnesses he did contact, while a declaration was included for the management official contacted who had no firsthand knowledge of Complainant's complaints or her work environment [emphasis in its original]."
The instant appeal followed.
ANALYSIS AND FINDINGS
Request to Add Sex as a Basis
The Commission has held that a complainant may allege discrimination on all applicable bases, and may amend her complaint at any time, including at the hearing, to add or delete bases without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. U.S. Postal Serv., EEOC Request No. 05940563 (January 19, 1995). However, the Commission has held that new claims may not be raised for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004).
We reject Complainant request to add the basis of sex (female) to her complaint. The Commission has ruled that, absent a compelling reason, a complainant may not raise a new basis of discrimination for the first time on appeal. Harrigan v. Dep't of Housing and Urban Dev., EEOC Appeal No. 0120110905 (November 21, 2012) (citing. Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000)).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The record reflects that in regard to claims 1, 8 and 12, the Chief stated that he denied Complainant's request to serve in the role as a Facilitator in Customer Service, attend Service Chief meetings, and serve as a POC for the Joint Commission Response because he needed Complainant to do her full duties as the Administrative Officer.1
Regarding claim 2, the Chief stated that on or around August 2009, Complainant had a lighter work load and he gave her permission to participate in the Combined Federal Campaign at that time. The Chief further stated that the following year, Complainant had "assumed more of her duties and was on a steep learning curve. [Chief] needed [Complainant] to do the full duties of the Administrative Officer, denied her request per the policy that states an employee must have 'supervisory permission.'"
Regarding claim 3, the Chief stated that he does not recall making the comment concerning Complainant's leave request. The Chief stated, however, if an employee's workload "was such that he could not spare an employee, [Chief] might have said something like that to [Complainant]. There have been times he had not approved an employee's leave request, based on staffing needs, but he has not denied any leave requests after he initially approved. At no time has [Chief] ever disapproved [Complainant's] leave before or after approval."
Regarding claim 4, the EEO Counselor noted that the Chief did not consider Complainant as an exceptional employee and "he rated her fully successful in all of her categories, with the exception of Customer Services that he had changed from fully successful to exceptional. [Complainant's] overall rating was fully successful and at no time did he rate her as minimally successful."
Regarding claim 5, the Chief stated that he does not recall the February 2010 remark. However, he recalled feeling that Complainant's position description would not "go anywhere." The Chief stated that he still re-wrote Complainant's position description and submitted to the Chief of Staff. During the week of May 3, 2010, the Chief notified Complainant that the Chief of Staff was holding her position description because all of the Administrative Officers' position descriptions had to be the same.
Regarding claims 6, 9 and 11, the record reflects that the Chief informed the EEO Counselor that he does not use a hostile tone when talking to Complainant. The Chief further stated that he does not harass Complainant and has never raised his voice at her.
Regarding claim 7, the EEO Counselor noted that the Chief stated that approximately two to three months after Complainant accepted her current position, she had applied for another position that had promotional potential. Prior to her interview, Complainant asked the Chief for permission to go to the interview. The Chief acknowledged asking Complainant on several occasions if she was still looking for another job in which she said "yes." The Chief stated that he then asked Complainant if she wanted a GS-12, why would she accept the GS-11 Administrative Officer position. Complainant responded that the GS-11 position was the only position available but as soon as the GS-12 position opened, she applied for it. According to the EEO Counselor, she stated "naturally, [Chief] was not happy with training someone who wanted to leave."
Moreover, the Chief stated that he does not recall using a hostile tone of voice while talking to Complainant, and that considers himself as a "normally soft spoken" person.
Regarding claim 10, the Chief stated that he usually greets everyone and "does not have a clue where he did not speak to [Complainant]. When he walks into the work area, the first person he sees is the receptionist, which he speaks to and if there is anyone else in the area but at the machine, he may not speak to them."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her age.
We note that Complainant, on appeal, argued that the investigation was inadequate because the investigator did not obtain statements from all of her witnesses. We have reviewed Complainant's appellate arguments but nonetheless determine that the investigator properly conducted an adequate investigation of the instant complaint. We further determine that, beyond her bare assertions, Complainant has provided no evidence that the reasons proffered by management were pretext masking discriminatory animus.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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.
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 4, 2015
__________________
Date
1 During the relevant period, the Chief served as the Chief of Medicine Service until May 2010, and died in late May 2010. Because the Chief did not provide a sworn testimony, the investigator obtained the Chief's responses from the EEO Counselor's Report.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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