Darlene F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs Agency.

Equal Employment Opportunity Commission

Jul 26, 2019

0120181678 (E.E.O.C. Jul. 26, 2019)

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

Darlene F.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
Agency.

Appeal No. 0120181678
Agency No. 200I05162017102405

DECISION

On April 23, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 22, 2018, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.
ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination and a hostile work environment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Emergency
Management Specialist Trainee, GS-09 at the Agency’s Bay Pines Health Care System facility in
Bay Pines, Florida. S1, the Chief of Safety and Emergency Management (SEM)(Caucasian,
national origin unknown, female), was Complainant’s immediate supervisor from November 12,
2015 until March 2017. S1a, the Emergency Manager (Caucasian, US citizen, male), was
Complainant’s mentor/preceptor beginning in November 2015 but became her immediate
supervisor when he was appointed Acting Chief of SEM in March 2017.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The record reflects that during the time relevant to this complaint, there were two EMS trainees,
Complainant, and a co-worker (CW) (Caucasian, American, male). On July 5, 2017, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(Native Hawaiian/Pacific Islander), national origin (Polynesian), and sex (female) when:

1. From December 11, 2015 through August 25, 2016, she was assigned additional
duties outside her position description to include: the SEM Newsletter, ADPAC
duties, Safety Champion Certificates, CFC representative, and Records Liaison;

2. On January 26, 2016, she was unable to participate in joint Commission
Accreditation Survey due to ADPAC duties;

3. She was denied attendance at the 30th Annual Governor’s Hurricane Conference
which was held May 8-13, 2016;

4. On July 29, 2016, she was denied a smart phone, even though her coworker’s
request was approved;

5. On September 7, 2016, S1 threatened her by stating in a harsh tone, if she wanted
to work at SEM, that she was the boss, she wrote the evaluations, and it was her
decision if Complainant remained employed;

6. On October 11, 2016, S1 directed her to read an article that questioned her
upbringing, culture, morals and values;

7. On October 11, 2016, she was verbally reprimanded for sending what was
described as inappropriate emails during a meeting;

8. On December 31, 2016, she discovered that a coworker received a higher
performance rating than her;

9. From January 10, 2017 through January 31, 2017, S1 yelled at her multiple days
during a meeting;

10. On February 17, 2017, S1 accused her of talking to the union without her
permission;

11. From February 17, 2017 through March 27, 2017, she was relocated to another
office while a fact-finding investigation was being conducted;

12. From February 17, 2017 through March 27, 2017, during relocation, she was not
included in meetings, and discussions related to training development;

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13. On February 28, 2017, she was denied access to essential computer updates to
perform her duties; and

14. On March 23, 2017, S1a told her that she should disassociate herself from the team
and keep her head down.

Complainant was assigned several duties which she claimed were not required of her according to
her position description. On January 26, 2016, she was not allowed to participate in the Joint
Commission Accreditation Survey. In addition, she claimed that she was not approved to attend
training. She complained that CW was provided with an I-phone, but she was not. She also
complained that she was not provided access to “the computer” to allow a camera attachment. On
February 2, 2017, S1 issued Complainant a written counseling for failure to follow supervisory
instructions and unprofessional conduct.

On February 3, 2017, S1 followed up with another memoranda to Complainant titled Supervision
Note of Record. S1 stated in the memorandum that she was her (Complainant’s) supervisor and
Complainant needed to follow her instructions. She advised Complainant to eliminate gossip and
disparaging remarks, as they were a violation of the Code of Conduct. S1 further reminded
Complainant to update her Google calendar, to share viewing rights to the calendar with her, and
advised Complainant that she needed to meet with her over the next eight (8) weeks to work on
her Independent Development Plan. S1 concluded that communication with a reminder that
Complainant’s mid-year review was upcoming, and she (Complainant) needed to use the eight
weeks to achieve her professional development goals.

According to the record, on February 2, 2017, Complainant informed the Associate Director (AD)
that she felt that S1 had subjected her to harassment and intended to contact the Office of
Resolution Management (ORM) to initiate a claim of harassment. The next day, Complainant
informed the AD that there had been misunderstandings, and that she and S1 had agreed on a fresh
start with open communication, to move forward, and forget the past transgressions. However, on
February 7, 2017, Complainant advised the AD that she did contact ORM to initiate a claim of
harassment. The AD initiated a fact-finding investigation. On February 22, 2017, Complainant
was notified that her work station was to be temporarily relocated during the investigation, and
that S1a would be assigned as her direct supervisor. The findings of the investigation were issued
on March 17, 2017 and were inconclusive.

Complainant contacted an EEO Counselor on March 23, 2017. When informal counseling failed,
Complainant filed a formal complaint. 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 Equal Employment Opportunity Commission Administrative Judge. In accordance with
Complainant’s request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
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CONTENTIONS ON APPEAL

In pertinent part, Complainant, through counsel, argues that the Agency’s FAD erred factual and
legally and that she established that she was discriminated against and subjected to harassment.
The Agency, among other things, argues that its FAD was correctly decided and asks that we
affirm its determination that Complainant did not establish that she was subjected to discrimination
or harassment.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

Complainant alleges that she was subjected to 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 a complainant to prevail, she must first establish a prima facie
case 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).

Claims 1 and 2:

Contrary to Complainant’s allegations that she was assigned duties outside her PD, S1a maintained
that none of the duties she was assigned were outside her PD. He pointed out that one of the
requirements in her PD was to perform other duties as assigned. S1a pointed out that both
Complainant and CW were assigned additional duties, just not the same duties. As for the ADPAC
assignment, Complainant was appointed only as the alternate ADPAC. He opined that
Complainant may have even volunteered for some of the duties.

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Regarding Complainant's allegation that she was not allowed to participate in the Joint
Commission Accreditation Survey, S1a stated that neither she nor CW participated. According to
S1, he did not tell Complainant or CW that they could attend, because neither was authorized to
attend. He opined that Complainant and CW, who were both trainees, were required in their IDP
to look at the Joint Commission Standards, and to review the plans. According to S1a, however,
neither was assigned to participate in the survey.

Claim 3:

S1a testified that neither Complainant nor CW was approved to go to the 30th Annual Governor’s
Hurricane Conference. He stated that Complainant did request to attend, but that he and S1
discussed the request and decided that it was not necessary. S1a stated that both Complainant and
CW, who had only been in the program for five or six months, needed to work on other areas of
training within the facility. Neither was approved to attend the conference. S1a also denied that
the individuals that Complainant named as having attended the conference attended the
conference.

Claim 4:

Sla testified that CW came to EMS from the Agency’s Police Department and that at the time he
started his EMS training, he already had a Blackberry. At the time, Blackberries were being
upgraded to I-Phones, so CW received an I-Phone. Complainant did not have a phone or
Blackberry when she came to EMS from the Tampa office, so she was assigned just a regular flip
phone. S1a maintained that Complainant never actually requested a smart phone in July 2017;
therefore, there was no actually denial. The Deputy Area Manager (AM) testified that he was the
final approval authority for smart phones. He testified that his records reflected that Complainant
was issued a flip phone when she first started her training. However, according to the Deputy AM,
Complainant did request a smart phone on November 29, 2017, and that her request was approved
on December 6, 2017. The Deputy AM testified that he subsequently discussed with the Deputy
Director that although EMS employees had not been approved for smart phones in the past, they
should be allowed to be upgraded to smart phones.

Claim 8:

Complainant received a performance rating of Excellent during the period in question, while CW
received a rating of Outstanding for the same period. According to the record, S1 felt that CW
earned the Outstanding rating because he consistently demonstrated improvement. Complainant,
according to S1a, did not work as hard as CW. She was having issues completing assignments
timely and also having issues taking directions from the Service Chief.

Claim 11:

After Complainant reported that she was being harassed by S1, the AD consulted with a Human
Resources Specialist (HRS).
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HRS testified that she advised the AD that Complainant and S1 should be separated. The AD
made the decision to temporarily relocate Complainant's work station while the fact finding was
conducted. Complainant was assigned to report to S1a rather than to S1. Her duties remained
exactly the same; nothing was changed. The purpose of relocating her work station was to remove
her from the situation and limit her interactions with S1. In addition, the AD did not want
Complainant to have to continue reporting to S1. The AD maintained that the relocation of her
work station did not hinder the performance of her duties in fulfilling the requirements of her
trainee position. She was relocated for approximately 30 days while the fact finding was
conducted. After completion of the fact-finding investigation, which was inconclusive,
Complainant was moved back to her regular work station.

Claim 12:

S1a denied that Complainant was excluded from meetings during the month of her relocation. He
was aware that she missed a meeting but was not aware of the reason. He noted that she had
prepared the agenda for the meeting she missed. S1a maintained Complainant was not restricted
from attending the Mass Casualty Exercise meetings as she claims. He did note that she missed a
couple of the meetings prior to the exercise, but he did not know the reason. Her duties during her
month long work station relocation did not change. He noted that attendance at the meetings was
not a requirement of her IDP. S1a stated that he assumed Complainant did not attend the meetings
because she was not happy with the outcome of the fact finding.

Claim 13:

According to Complainant, she needed access to the software enabling use of a camera in
connection with her duties. She requested the access and, on February 28, 2017, S1 disapproved
the request. S1a testified that Complainant’s duties do not include use of a camera, so he is unsure
why she is requested the access. Contrary to Complainant’s allegations, she was not required to
take pictures of safety violations. In fact, S1a testified that he did not have access to the use of a
camera. Although Complainant maintained that CW had access to a camera and she did not, CW
testified that he did not have computer access to upload pictures. He pointed out that uploading
pictures was not a part of their job, and that the facility has an entire department dedicated to
uploading pictures.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her race, national origin, and sex, we find that the Agency has provided legitimate, non-
discriminatory reasons for its actions set forth in claims 1, 2, 3, 4, 8, 11, 12, and 13, and we find
no persuasive evidence of pretext or discriminatory animus. As Complainant did not request a
hearing, we do not have the benefit of an Administrative Judge’s credibility determinations after a
hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to
us.

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Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based on
her statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability. The Supreme Court in Harris explained that an “objectively hostile or abusive
work environment [is created when] a reasonable person would find [it] hostile or abusive” and
the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the
harassment is sufficiently severe to trigger a violation must be determined by looking at all 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.” Id. at 23. A hostile work environment exists
when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris,
supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998).

At the outset, we find that under the standards set forth in Harris that Complainant’s claim of a
hostile work environment must fail with respect to claims 1, 2, 3, 4, 8, 11, 12, and 13. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000).

Claims 5, 6, 7, 9, 10, and 14:

Contrary to Complainant’s claim that S1 yelled at her, personally insulted her, and treated her
disrespectfully, the record reflects that no witnesses interviewed in the fact finding corroborated
this allegation. The fact finder reported having received an email from a former employee, which
corroborated Complainant’s allegation that S1 created a hostile environment. However, no one
interviewed testified that they had observed the treatment as alleged by Complainant. The fact
finder reported that S1a and S1 both maintained that CW was able to work independently, but that
Complainant was unable to do so.

Complainant maintained that she once missed a break due to a meeting and she later took the break.
When she returned, S1 was in the hallway and she radioed S1a that she had found Complainant.
S1 then questioned her as to why she was out of the office as she had her down as working.
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Complainant advised that she was on break talking to two individuals in Chaplain Services and S1
responded aggressively that she needed to be notified if Complainant was going to speak to the
Union.

Complainant was verbally reprimanded by S1 after she sent several emails to an EMS Supervisor
regarding one of his employees, which resulted in discipline of the employee. According to
Complainant, S1 advised her in a harsh tone that nothing should leave the office without her prior
approval. Thereafter, according to Complainant, S1 then advised her to read an article entitled
Managing Oneself, which Complainant alleges was insulting because it pointed out that a person
may not recognize their wrongdoings because of their upbringing and culture.

S1a testified that when the fact finding had been completed, Complainant transitioned back to the
office. He wanted to encourage a smooth transition after the fact finding so everyone could move
on. He admitted that he did tell her to keep her head down and fly below the radar and things would
go smoothly.

We find that Complainant has not established her claim that she was subjected to unlawful
harassment with respect to claims 5, 6, 7, 9, 10, and 14. Even if the claims occurred exactly as
alleged, Complainant failed to show that the Agency officials were in any way motivated by
discriminatory animus. In addition, these actions appear to have been routine managerial
comments or actions concerning her performance or non-performance of assignments, duties, or
decisions, all of which, absent a showing of discriminatory animus, will not be second-guessed by
the Commission. Finally, we find that these matters were neither severe nor pervasive enough to
rise to the level of unlawful harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole

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discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 26, 2019
Date