Genie Y.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 6, 20190120172775 (E.E.O.C. Feb. 6, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genie Y.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172775 Agency No. 200H-V102-2016103363 DECISION On August 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 26, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Public Affairs Specialist at the Agency’s Canandaigua Veterans Affairs Medical Center (VAMC) in Canandaigua, New York, under a 2- year Technical Career Field (TCF) internship program. In June 2016, Complainant filed an EEO complaint alleging that she had been subjected to a discriminatory hostile work environment based on her disability and in reprisal for prior EEO activity. 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. 0120172775 2 As an initial matter, we note that the record in this case is exhaustive and sometimes confusing. Specifically, Complainant first raised numerous allegations in the instant formal complaint, and the Agency accepted some allegations and dismissed others on a variety of procedural grounds. Thereafter, Complainant requested amendment of the formal complaint to include an entirely separate range of numerous detailed matters. The Agency again accepted some claims for investigation, and dismissed others on various procedural grounds. For the sake of economy and efficiency in addressing this case, we will not go through the painstaking and possibly confusing process of enumerating all the claims that preceded the Agency identification of the claims reviewed in the instant final decision. We note, however, that all matters which Complainant raised will be viewed in the context of a hostile work environment claim. We now proceed with a discussion of the background. On June 20, 2016, Complainant filed the instant formal complaint. Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of disability2 and in reprisal for prior EEO activity. The formal complaint detailed numerous specific incidents in support of the claim. On September 21, 2016, the Agency issued a partial dismissal, one claim for investigation. The Agency, however, dismissed the remaining matters for failure to state a claim, raising the same claims that were previously abandoned, or not bringing some claims to the attention of an EEO Counselor and which the Agency found were not like or related to matters which have been brought to the attention of an EEO Counselor. The record reflects that on October 4, 2016, Complainant requested that her formal complaint be amended to include 21 additional matters. On October 13, 2016, the Agency issued a document entitled “Notice of Revision, Partial Dismissal & Amendment of Complaint No. 200H-V102- 2016103363.” The Agency accepted some claims for investigation. The Agency dismissed other claims for stating the same claims that were raised in a prior EEO complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). Further, the Agency dismissed other claims because they were not brought to the attention of an EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency then framed Complainant’s amended complaint as follows: Complainant was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for EEO activity when: 1. on February 5, 2016, she was interviewed by the VA police based on allegations from the VISN Network Business Operations Manager; 2 Complainant identified her disability as a service-connected chronic Post Traumatic Stress Disorder (PTSD). For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. 0120172775 3 2. in March 2016, the former supervisor and the PA Specialist failed to inform Complainant about training that they had attended and informed the New York City Office of Public Affairs that Complainant did not need to attend; 3. in April 2016, the former supervisor made adverse statements to the Deputy Director, VHA Public Affairs, about Complainant’s performance; 4. in April 2016, during a phone conversation, the former supervisor stated that she would not have hired Complainant had she known about a disability; 5. in April 2015, the supervisor informed Complainant that a volunteer would be taking over her duty of submitting the facility’s Volunteer Newsletter contributions to the VISN2 Network Public Affairs Office effective May 26, 2016; 6. on April 5, 2016, Complainant was issued an email sent from the Interim VISN Network Business Operations Manager to the former supervisor and PA Specialist to have no contact with Complainant which she believes prevented her from performing her duties; 7. on April 24, 2016, the former supervisor berated her in front of the PA Specialist, and asked her if she had any public affairs experience at all; 8. on April 27, 2016, the former supervisor laughed and told Complainant that she would not provide accommodations until Complainant submitted paperwork and proof of a disability and to read the email for instructions on how to complete the paperwork; 9. in May 2016, the former supervisor, in the presence of the PA Specialist, asked Complainant “do you really have public affairs experience?;” 10. on May 26, 2016, Complainant became aware that the Agency was not going to retain her on staff after the conclusion of her TCF internship; 11. on May 26, 2016, the facility director indicated that he would provide Complainant with a written reference but had failed to do so by June 2016; 12. on June 10 and 13, 2016, the PA Specialist 2 strongly suggested that Complainant submit to be detailed to the VA Medical Center in Cincinnati, Ohio; 13. from July 2016 through October 2016, Complainant became aware that she again was excluded from public affairs communication; 0120172775 4 14. in July 2016, she became aware that the former supervisor and PA Specialist could have provided negative job references resulting in other VA Medical Centers considering her for a position by not selecting her; 15. in September 2016, she became aware of adverse statements in the Communications Strategy document made by the former supervisor involving target goals not being accomplished, stating they were the responsibility of Complainant; and 16. in September 2016, the former supervisor groaned after Complainant asked the Buffalo, New York VAMC Public Affairs backup for VISN2 to share the videos for the Leaders Developing Leaders with all of the public affairs staff on the call. After the investigation of the 16 allegations, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on May 26, 2017, pursuant to 29 C.F.R. § 1614.110(b). In its May 26, 2017 decision, the Agency determined that some claims had been properly dismissed on various procedural grounds. However, the Agency then proceeded to address Complainant’s allegations (1 – 16) on the merits finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of hostile environment 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). In other words, 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 her protected bases – in this case, her disability or prior protected activity. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Here, we have reviewed all Complainant’s numerous claims throughout the entire EEO complaint process. As detailed below, Complainant simply has not proven her claim that her treatment was the result of her disability or prior protected activity. 0120172775 5 Regarding allegation 1, Complainant alleged that on February 5, 2016, she was interviewed by the VA police based on allegations from the VISN Network Business Operations Manager. The former supervisor stated that from October 2014 to May 2015, she was Complainant’s supervisor. The former supervisor stated that Complainant was moved to another office because her employees had filed complaints claiming they were subjected to harassment by Complainant. The supervisor stated at that time Complainant “subjected us to a hostile work environment with accusations, defamation of character.” The former supervisor stated that sometime after May 2015, Complainant started working in a different office and “went after” a new co-worker. The former supervisor stated that she was questioned by Complainant’s new co-workers concerning Complainant’s belief that the former supervisor was still “doing things to her.” The former supervisor stated that she shared her concerns with her supervisor, the VISN Network Business Operations Manager, about what Complainant was doing. For instance, the former supervisor stated that she received calls from Complainant’s new co-workers stating “[Complainant] still thinks you’re doing this to her. I said ‘she’s not in my office. She doesn’t even work here.’ She reports to [PA Specialist 2]. And I did mention to my boss – I said to her I’m getting scared. I’m getting scared because this is not stopping. And I’m getting upset. This is a person that’s just being scandalous, using – just hurting me constantly. And I think what prompt the police coming over was to check up to make sure everything as okay because I guess when I – because I said I’m getting a little scared. This person seems to be just very, very malicious. It’s malicious, deceptive, twist the truth.” The former supervisor stated that she believed this prompted her supervisor to contact the VA police “just thought she was doing due diligence to make sure that everything was okay over here in this office.” The former supervisor stated that she told the police that she was fine. Regarding allegation 2, Complainant asserted that in March 2016, the former supervisor and PA Specialist failed to inform her about training that they had attended and informed the New York City Office of Public Affairs that Complainant did not need to attend. The former supervisor stated that it was not true. Specifically, the former supervisor stated that at that time, Complainant had not worked for her for approximately one year and “I haven’t attended training in three years nor has my assistant here.” Regarding allegation 3, Complainant alleged that on in April 2016, the former supervisor made adverse statements to the Deputy Director, VHA Public Affairs, about Complainant’s performance, the former supervisor denied it. The former supervisor stated that when Complainant was under her supervision, it was her responsibility to provide reports regarding her performance and after Complainant “no longer worked for me I had nothing to do with the TCF program.” 0120172775 6 Regarding allegation 4, Complainant claimed that in April 2016, during a phone conversation, the former supervisor stated that she would not have hired Complainant had she known about a disability. The former supervisor stated “it’s a lie. [Complainant] was not in my office in April 2016. She was in Canandaigua – 45 minutes away. I don’t know what conversation and why I would ever state that. She couldn’t have eavesdropped on any of my phone conversations. She’s not in my office.” Regarding allegation 5, Complainant in April 2015, the supervisor informed her that a volunteer would be taking over her duty of submitting the facility’s Volunteer Newsletter contributions to the VISN2 Network Public Affairs Office effective May 26, 2016. The supervisor stated that in June 12, 2015, she became Complainant’s supervisor at the Canandaigua VAMC. The supervisor explained that she and two other specialists were responsible for the Volunteer newsletter. The supervisor noted while there were several occasions when she would do the whole submission herself, she “gave a lot of responsibility at one point to [Complainant], so that she could learn how to do the newsletter.” The supervisor stated, however, she ultimately gave the newsletter responsibilities to a volunteer “because at that point I wanted the volunteer to take on more responsibilities. And I knew that there wasn’t a good chance that [Complainant] was going to be staying here. So, I wanted to be able to train someone else to take over those duties. And right now, that volunteer is still doing the newsletter.” Regarding allegation 6, Complainant alleged that on April 5, 2016, she was issued an email sent from the Interim VISN Network Business Operations Manager to her former supervisor and PA Specialist to have no contact with Complainant which she believes prevented her from performing her duties. The former supervisor acknowledged receiving an email from the Interim VISN Network Business Operations Manager asking her not to have any contact with Complainant. The supervisor stated that she did not think the former supervisor or PA Specialist 1 prepared the email “to harass or intimidate [Complainant] or anything like that. And even if there was something that was an exclusion [PA Specialist 2] would have gotten it or I would have gotten it. And then we would share it with [Complainant].” Regarding allegation 7, Complainant alleged that on April 24, 2016, the former supervisor berated her in the presence of the PA Specialist, and asked her if she had any public affairs experience at all. The former supervisor denied it. The former supervisor stated that Complainant “was not under my supervision. She wasn’t in my office. No opportunity to do that in April 2016.” 0120172775 7 Regarding allegation 8, Complainant asserted that on April 27, 2016, the former supervisor laughed and told Complainant that she would not provide accommodations until Complainant submitted paperwork and proof of a disability and to read the email for instructions on how to complete the paperwork. The former supervisor stated that it was not true. Specifically, the former supervisor explained that Complainant “was not with me on April 27, 2016. So, nothing to do with reasonable accommodations…she was not here. I’m not a laughing person. There’s nothing laughable about this situation.” Regarding allegation 9, Complainant claimed that in May 2016, the former supervisor, in the presence of the PA Specialist, asked Complainant “do you really have public affairs experience?” The former supervisor again stated that it was not true. The former supervisor asserted “I probably asked [Complainant] when she was interviewed as to what kind of public affairs experience she had. What kind of public affairs she had done? So, I’m – I don’t know where this statement is coming from. And it certainly didn’t happen [in] May 2016.” Regarding allegation 10, Complainant asserted that on May 26, 2016, she became aware that the Agency was not going to retain her on staff after the conclusion of her TCF internship. The record reflects that the TCF is a 2-year program and that near the end of the 2-year internship, Agency management makes a decision whether to retain TCF interns with the Agency. The supervisor stated at that time she met with the Medical Center Director and other management officials, and “talked about those issues. And that what was on the table. We wouldn’t be able to retain [Complainant] because of budget and FTE considerations.”3 The supervisor further stated that she and the Director had “lots of conversations” with Complainant helping her find a job in other VA facilities. The supervisor stated that Complainant was offered a job at the crisis line “but it was a lower grade. she wasn’t interested…there were a couple of other jobs that looked promising. She had a lot of interviews…but then it finally worked out that she went to Cincinnati.” The Director explained at that time the Canandaigua facility “was running at budget deficit. We were trying to reduce our overhead for our full-time equivalent employees we had on staff to try to reduce our financial deficit. And we were not taking on new employees. We were only filling critical vice positions in clinical care areas – patient care areas. And the TCF program – you try to find placement for them with the agency. The TCF interns are encouraged to look for openings that are across the VA in total.” 3 FTE is an abbreviation for Full-Time Equivalent employees. 0120172775 8 Further, the Director stated that the former supervisor did not influence him in any way. The Director stated that he did not discriminate against Complainant based on her disability or prior protected activity. Moreover, the Director stated that he and other management officials “were very open and helpful in trying to find [Complainant] other positions in the system when we could not provide one locally for her.” Regarding allegation 11, Complainant alleged that on May 26, 2016, the Director indicated that he would provide Complainant with a written reference but had failed to do so by June 2016. The Director stated that he checked his calendar and did not see having an appointment with Complainant on May 26, 2016. The Director noted that he would not have been opposed to giving Complainant a reference. The Director further stated that on that day, he was doing clinic visits between Rochester, New York and Canandaigua facilities. The Director stated that he has seen Complainant at public events but “I don’t recall telling her I’d give her a written referral or reference.” Regarding allegation 12, Complainant asserted that on June 10 and 13, 2016, the PA Specialist 2 strongly suggested that Complainant submit to be detailed to the VA Medical Center in Cincinnati, Ohio. The PA Specialist 2 acknowledged suggesting Complainant that she submit to be detailed to the VA Medical Center in Cincinnati. The PA Specialist 2 stated at that time a message went out to all Public Affairs employees stating that there was an opportunity for a detail in Cincinnati and “knowing that [Complainant] probably was not going to be able to stay here I suggested that she might look into that just to get a feel for what that position might look like if it ever did open him. Also, I thought that the Canandaigua VA, being a “category one” facility like the Cincinnati VA could provide, so she could get a 30-day detail where she could get a tremendous amount of more training in VA health care than I could provide for her herein.” Regarding allegation 13, Complainant claimed that from July 2016 through October 2016, she became aware that she again was excluded from public affairs communication. The former supervisor stated that she had no understanding of any communication arrangements during the relevant period. The supervisor acknowledged that Complainant expressed her concerns about being excluded from public affairs communications. The supervisor further stated that she and PA Specialist 2 “bent over backwards to try to make sure that [Complainant] had all the information that she always needed…she was a part of so many email groups. I mean, even with voluntary service. I mean, we shared. We’ve a very open office. We shared all kinds of information with her.” Regarding allegation 14, Complainant asserted that in July 2016, she became aware that the former supervisor and PA Specialist 2 could have provided negative job references resulting in other VA Medical Centers considering her for a position by not selecting her. 0120172775 9 The former supervisor stated that during the relevant period, she received a phone call from someone inquiring about Complainant’s performance and she told the individual that “I’m not the person you need to be speaking to. You need to speak to [PA Specialist 2]. [Complainant] hasn’t been in my office for a year and a half. And there were no negative comments made – nothing – because I would have to no right to do that [be]cause I did not know how she was performing. I had no idea how she was performing in Canandaigua.” The PA Specialist 2 stated that he was contacted by the Richmond, Virginia VAMC and called the individual back and “the total length of that conversation with that person was probably about 30 seconds. The person just said something like how would you describe [Complainant’s] writing skills. And I think I said something like ‘I think [Complainant’s] coming a long way in developing her writing skills. And she’s getting much better.’ At that point, the woman just said thank you. And hung up and that was it. So, I never ever did anything other than tell the truth with regard to [Complainant’s] abilities.” Regarding allegation 15, Complainant claimed that in September 2016, she became aware of adverse statements in the Communications Strategy document made by the former supervisor involving target goals not being accomplished, stating they were the responsibility of Complainant. The former supervisor explained that it was her responsibility to prepare a communications strategy…there’s nothing bad in that document at all.” The former supervisor stated that the target goals were for her and “this is my communications plan that I roll up to my boss. This has nothing to do with employees…there’s no place on here that says met or not met. It just lists actions, target date, measure, results driven, supporting documents. It’s kind of like a road map.” Regarding allegation 16, Complainant asserted that in September 2016, the former supervisor groaned after Complainant asked the Buffalo, New York VAMC Public Affairs backup for VISN 2 to share the videos for the Leaders Developing Leaders with all public affairs staff on the call. The former supervisor denied groaning after Complainant suggested to the Buffalo VAMC Public Affairs backup. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s explanations for the disputed actions were a pretext for discrimination or motivated by retaliatory animus. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 0120172775 10 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). 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. 0120172775 11 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 February 6, 2019 Date Copy with citationCopy as parenthetical citation