Doloris W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

0120181305 (E.E.O.C. Aug. 14, 2019)

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

Doloris W.,1
Complainant,

v.

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

Appeal No. 0120181305

Hearing No. 520-2007-00447X

Agency Nos. 200H-0561-2006101967
200H-0561-2006102389

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 31, 2012 final order concerning the two formal complaints which claimed
unlawful 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Motor Vehicle Operator at the Agency’s
Engineering Service, East Orange Campus, VA New Jersey Healthcare System facility in East
Orange, New Jersey.

Complainant filed two formal complaints on May 19, 2006 (“Complaint 1” - Agency No.
200H0561-2006101967) and July 7, 2006 (“Complaint 2” - Agency No. 200H-0561-
2006102389), respectively. The Agency consolidated the complaints for processing.

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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Complainant claimed that the she was subjected to ongoing harassment/a hostile work
environment based on national origin (Complainant, when asked, described her national origin as
“white”), disability (hearing impairment), and in reprisal for prior EEO activity when:2

Complaint 1:

1. on March 28, 2006, she was issued a reprimand for an incident which occurred on
December 29, 2005;

2. on June 29, 2006, she was charged 4 hours of Absent Without Official Leave
(AWOL);

3. she was subjected to harassment/a hostile work environment when:
a. on April 6, 2006, she had a confrontation with a co-worker;
b. on April 14, 2006, a named male co-worker (“Co-worker 1”) “taunted” her
regarding a job in the Director’s Office;
c. on April 14, 2006, her supervisor asked her if she was using the computer for
“work related business;”
d. on April 18, 2006, her supervisor informed her that she had received reports
of contact from staff members in the Outpatient Clinic regarding her use of
foul language and “talking against staff and patients;”
e. on April 18, 2006, her supervisor questioned her repeatedly regarding the
manner in which she performed her work assignments;
f. on April 19, 2006, her supervisor yelled and screamed at her;
g. on June 7, 19 and 20, 2006, her supervisor overscheduled her patient trips;
h. on July 10, 2006, a named female co-worker thwarted her attempt to use the
microwave;
i. on July 13, 2006, her supervisor questioned her about her work assignments;
j. on July 13, 2006, her supervisor overscheduled her patient trips;
k. on May 9, 2006, Co-worker 1 mocked her hearing impairment when he stated
“what did you say? I can’t hear you;”
l. on May 10, 2006, Co-worker 1, during the course of the conversation, state
“[named employee], she got a but (sic) for me” and “you can send me
anywhere I’ll go with a smile on my face;”
m. on July 6, 2006, her supervisor removed the computer and telephone from the
break room to the Main Office;

2 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1- 59.
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Complaint 2:

4. on December 29, 2005, her supervisor screamed at her during a meeting and made
reference to her hearing loss;
5. on January 1, 2006, someone removed her cell phone from her locker;
6. on January 24, 2006, she was verbally abused by a co-worker;
7. on February 7, 2006, she was verbally abused by her supervisor;
8. on February 13, 2006, she was verbally abused by her supervisor;
9. on February 14, 2006, she was verbally abused by her supervisor;
10. on February 16, 2006, she was verbally abused by her supervisor;
11. on February 24, 2006, she was verbally abused by her supervisor;
12. on February 27, 2006, she was verbally abused by her co-workers;
13. on March 1, 2006, she was verbally abused by a co-worker;
14. on March 6, 2006, she was verbally abused by a co-worker;
15. on March 10, 2006, she was given a note by her supervisor that was allegedly written
by the management of a nursing home in which she picks up patients;
16. on March 13, 2006, her request to remove copies of documents from the building that
were to be used to support her appeal of her reprimand was denied;
17. on March 14, 2006, she received a letter from the Chief of Facilities Management
stating that her complaint regarding forced overtime was unsubstantiated;
18. on April 11, 2006, she was verbally abused by a co-worker;
19. on April 12, 2006, she was verbally abused by a co-worker;
20. on April 13, 2006, she was verbally abused by a co-worker;
21. on April 18, 2006, her supervisor verbally abused her;
22. on May 9, 2006, she was verbally abused by a co-worker’
23. on May 10, 2006, she was verbally abused by a co-worker;
24. on May 22, 2006, a co-worker repeatedly hung up on her when she tried to leave a
message for her supervisor;
25. on May 23, 2006, her supervisor yelled at her over the phone and then hung up on
her;
26. on various dates in July 2006 and August 2006, her second-level supervisor agreed
with “every complaint/violation and issue” she raised with her supervisor;
27. on July 27, 2006, her supervisor questioned her regarding her work assignment;
28. on August 2, 2006, her supervisors “checked up” on her to ensure that she did not
leave early;
29. by letter dated August 2, 2006, she was given a Report of Contact which directed her
to comply with and follow instructions given;
30. on August 3, 2006, her supervisors “checked up” on her during a cigarette break;
31. on August 7, 2006, while in the break room, another co-worker (“Co-worker 2”)
slammed her (Co-worker 2’s) locker;
32. by memorandum dated August 8, 2006, she was informed that an allegation she made
regarding the actions of a co-worker on May 22, 2006 were not substantiated;
33. on August 20, 2006, she overheard one co-worker say to another “I’m gonna stink her
a**,” as they passed her walking;
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34. on August 21, 2006, her supervisor “walked out and slammed the door” as she
(Complainant) attempted to speak to her and then re-opened the door and yelled at
her;
35. on August 22, 2006, her supervisor allowed employees to direct their “negative”
comments towards her during a staff meeting;
36. on August 23, 2006, her supervisor yelled at her;
37. on August 30, 2006, a co-worker yelled and screamed at her;
38. on September 12, 2006, her supervisor scheduled her patient trips so that she did not
receive her morning break and lunch until late;
39. on September 12, 2006, her supervisor would not allow her to take mandatory
classes;
40. on September 13, 2006, her supervisor did not “utilize her employees properly”
which resulted in her (Complainant) being “rushed all day” to complete her trips;
41. on September 14, 2006, her supervisor locked her in the garage;
42. on September 14, 2006, her supervisor informed her that she must put her request for
leave in the “appropriate” format and demanded that she do so;
43. on September 20, 2006, during a staff meeting her supervisor “belittled” her in front
of her co-workers;
44. on September 28, 2006, the Acting Supervisor informed her that she must tell him her
location during the day;
45. on October 4, 2006, her supervisor used profanity when speaking to her;
46. on October 5, 2006, her supervisor sat in her car and “stared at her;”
47. on October 6, 2006, her supervisor “screamed” at her;
48. on April 12, 2006, she was assigned duties that could not be performed in the allotted
time;
49. on April 13, 2006, she was assigned duties which required her to work overtime;
50. on April 14, 2006, she was assigned duties that could not be performed in the allotted
time;
51. on May 9, 2006, she was assigned duties while her co-workers sat in the break area;
52. on August 16, 2006, her supervisor overscheduled her work assignments;
53. on May 24, 2006, she was charged 15 minutes more annual leave than she had taken;
54. on August 11, 2006, she was informed that she would not be paid overtime from
4:30-6:00 p.m., but rather from 4:30-5:30 p.m.;
55. on September 14, 2006, her request for Authorized Absence on September 20, 2006
from 3:00-4:30 p.m. to meet with her attorney regarding pending EEO complaints
was denied;
56. on October 16, 2006, she was informed that effective November 13, 2006, she will be
reassigned from the East Orange campus to the Lyons campus of the VA New Jersey
Healthcare System;
57. on September 22, 2006, she was forced to work overtime;
58. on October 6, 2006, she was forced to work overtime; and
59. on November 8, 2006, she was forced to work overtime.

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After an investigation of Complaints 1 - 2, the Agency provided Complainant with a copy of the
investigative file. Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Thereafter, the AJ issued a decision by summary judgment in favor of the Agency on July 20,
2012.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

Since 2002, Complainant was employed as a Motor Vehicle Operator at the Agency’s VA New
Jersey Healthcare System in East Orange, New Jersey. Her immediate supervisor from
November 2002 until he retired in July 2006. Following the former supervisor’s retirement, the
Motor Vehicle Operator had on occasion been appointed as Complainant’s acting supervisor.

Complainant’s second-level supervisor was the Transportation Program Manager for the East
Orange, New Jersey and Lyons, New Jersey campus motor pool.

The second-level supervisor (“Supervisor 2”) stated that during the relevant period, she issued
Complainant a reprimand because of her disrespectful behavior and failure to follow instructions.
Specifically, Supervisor 2 explained that on December 29, 2005, she conducted a staff meeting
concerning the proper way filling out the dispatch sheets and following the meeting, she left the
room and then Complainant “made a noise by opening and slamming her locker during the
meeting. Once the meeting was over, she confronted me and stated in a loud and aggressive
manner that instead of blabbing out statements…I told her to come into the office to discuss what
it was that she wanted, what she wanted to say to me. She turned around and she continued,
standing outside the office…she berated me, okay, about the meeting.” The supervisor stated
that she again asked Complainant to come into the office to talk to her instead of in front of the
entrance way where everyone could hear but “she turned around and she said, she took a pen out
and a paper, and stood there and she said, repeat to me what you said in the meeting.”

Further, Supervisor 2 acknowledged charging Complainant with AWOL on June 29, 2006,
because she did not call management or request annual leave. Supervisor 2 stated that when she
informed Complainant that she was going to charge her 4 hours of AWOL, Complainant
responded stating “good, another thing for me to write you up on.”

Supervisor 2 also stated “there was no forced overtime on [Complainant] for June 19, [2006]
there was no forced overtime for June 7 [2006], there was no forced overtime for June 20th
[2006] .” Supervisor 2 stated that she did not overschedule Complainant’s patient trips.
Furthermore, Supervisor 2 explained that management gives out the employees’ schedule the
night before “but during the course of the day, they do what they’re assigned to do plus whoever
is ready, when they finish having their lunch or breaks or whatever, they come up and they say
I’m ready to go.” Supervisor 2 stated, however, Complainant would take her assignment “leave
the motor pool, and then decide whether or not she wants to do the job or not, then she’ll call
[Chief of Facility Management Service].”

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Supervisor 2 denied subjecting Complainant to a hostile work environment. Supervisor 2 stated
“I do not accustom myself to yell and scream at my employees, all right, that’s the first thing. I
have, however, suffered at the hands of [Complainant] for her screaming and yelling at me.”

With respect to Complainant’s allegation that on September 14, 2016, Supervisor 2 locked her in
the garage, Supervisor denied it. Supervisor 2 also denied that on October 5, 2006, she sat in her
car and stared at Complainant.

The Chief of Facility Management Service, also Complainant’s third-level supervisor denied
subjecting Complainant to harassment. Specifically, the Chief noted that the circumstance
leading to Complainant’s confrontation with a co-worker was related “some of the stuff that was
going on…[Complainant] was walking around, she’d have a pencil on her hand and she’d be
watching people and start jotting things down, kind of like trying to make people paranoid.
People were starting to worry about it, why is - - like being intimidated by it, so there was a little
bit [of] that going on…so that was some of the climate, but even though I went through all of
that to try to calm it down, it appeared that there wasn’t, [Complainant] was definitely going to
be pushing some buttons, you know.”

The Chief also noted that he vaguely recalled Complainant feeling abused by management and
co-workers “but I don’t recall it being substantiated, the specific date of it…but the ongoing
context of maybe feeling that she’s being abused, I would coach the supervisor to be very
sensitive to [Complainant’s] sensitivity and take the high road. At one point, I actually went
down to the unit and spoke to the whole group because [Complainant’s] actions were also getting
everybody on edge down there. She’s walking around taking notes, watching people do things
and kind of making people feel on edge, and I spoke to all of them and pretty much gave them a
sermon on treating each other with respect.”

Furthermore, the Chief stated that he felt strongly that Complainant’s issues “had nothing to do
with national origin. I just think it’s a sensitivity between the employee and some of her fellow
employees and her supervisor. Pretty strong-willed person, and for whatever reason, just
couldn’t work it out. But I don’t think, if any wrongdoing was substantiated or not with
[Complainant], I don’t have anything to do with national origin and all that. These arguments in
the motor pool, it’s pretty much disagreements amongst people, it’s not racially or national
origin-motivated. That’s my honest opinion.”

Based on this evidence, the AJ concluded Complainant failed to prove her claims of
discrimination or unlawful retaliation.

The instant appeal followed.
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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment 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); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9.

Complainant testified that she has hearing impairment and that the use of hearing aid does not
affect her ability to perform the essential functions of her job. Complainant acknowledged that
she did not provide medical documentation of her disability to Agency management.
Complainant further maintained that the Agency required all motor vehicle operators to receive a
mandatory medical examination. During her medical examination a hearing test was
administered to Complainant and as a request, she was encouraged to get a hearing aid to prevent
further loss of hearing in her ear.

In her affidavit, Complainant asserted that because of the noise in the main office “there were
times where I had to take certain classes at [named Agency official’s] office.” Complainant also
referred to receiving a bypass phone for office use after submitting a report of contact to [Chief].

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The AJ noted that on more than one occasion, Agency management provided reasonable
accommodation to Complainant without requiring official documentation of her hearing
disability in order for her to accomplish her job. Here, Complainant does not deny that she was
denied reasonable accommodation. Accordingly, we conclude that there is evidence that the
Agency accommodated Complainant’s hearing impairment.

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination or unlawful retaliation.

Harassment

With regard to a claim of discriminatory harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis – in this case, because of her national origin,
disability and prior protected activity. Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

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As already determined, the evidence of record simply provides no support for Complainant’s
allegation that her national origin, disability and prior protected activity played any role in the
disputed Agency actions.

We AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination.

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.
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).
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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 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

August 14, 2019
Date