Hilda A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171454 (E.E.O.C. Nov. 30, 2018)

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

Hilda A.,1
Complainant,

v.

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

Appeal No. 0120171454

Agency No. 0705-XX08-2015-105446

DECISION

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 February 7, 2017, 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 the Agency properly found that Complainant did not prove she was
subjected to unlawful harassment or discrimination because of her race, sex, or previous EEO
activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Data Management
Analyst, GS-13, within the Agency’s Business Operations Division, Office of Quality and
Performance (Q&P), in Bedford, Massachusetts. In this position, Complainant primarily
developed and generated reports for the Agency and worked with contract and information
technology (IT) support.

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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On October 30, 2015, Complainant filed an EEO complaint in which she alleged the Agency
discriminated against her on the bases of race (Caucasian), sex (female), and in reprisal for prior
protected EEO activity when:

1. Since July 2015, she was assigned to perform work outside the scope of her duties;

2. On August 27, 2015, she was notified that she was not selected for the position of
Quality and Performance Management/Supervisory Program Specialist;

3. On September 12 and 13, 2015, she was denied overtime pay;

4. Since July 2015, her second-level manager (S1) cursed in front of Complainant;

5. Since July 2015, S1 instructed her to address him as “Dr.,” but he permitted
Complainant’s black female coworkers to address him by his first name; and

6. Since July 2015, S1 failed to intervene when Complainant reported tensions between
herself and her coworkers.

Regarding claim 1, in an investigative statement, Complainant stated that in September 2015, a
meeting for Field Managers was held in Texas. She stated that because there was not a Q&P
Manager at that time, she was asked to prepare a presentation and present at the meeting on behalf
of Q&P. Complainant stated that there were several drafts of the agenda, and S1 initially had her
and a coworker (C1) as presenters, but on the morning of the meeting, the draft agenda only listed
Complainant as the presenter. Complainant stated that she prepared a presentation and submitted
it to S1 for review, but ultimately, she did not have to present.

Additionally, Complainant stated that on July 29, 2015, she received an email from the Human
Resources (HR) Manager stating that S1 was assigning her to develop the recruitment package for
a new Q&P employee. She stated that she did not dispute this assignment although she felt it was
outside the scope of her duties because she knew she was a candidate for promotion. Complainant
also stated that on or about August 15, 2015, she was assigned to work on reports. She stated that
this assignment was a “documented part” of her job, and she was happy for the assignment.
However, Complainant stated that she objected to the fact that S1 assigned this task to employees
who did not have reports in their job description, which circumvented her expertise and created
additional work for her to correct their actions. Complainant further stated that she was given
oversight over the Agency’s EEOC Management Directive 715 (MD-715) report, but when she
argued that the assignment was outside the scope of her job, it was reassigned to a GS-14 Program
Analyst, and she only contributed within the scope of her position.

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Regarding claim 2, Complainant stated that, on July 18, 2015, she applied for the Q&P
Management/Supervisory Program Specialist position through the website USAJobs.gov.
Complainant further stated that she thought she was qualified for the position because she had
acted in it for 120 days at the GS-14 level and been at the GS-13 level for over five years.
Complainant stated that she was not interviewed for the position and was officially notified that
she was not selected on December 21, 2015.

Regarding claim 3, Complainant stated that around September 10, 2015, she was not paid for
working overtime, and when she brought the matter to S1’s attention, he responded that she
received compensatory (comp) time for those hours. Complainant further stated that she was
forced to go to an HR official to correct the error.

Regarding claim 4, Complainant stated that during staff meetings and individual conversations, S1
cursed. She stated that S1 typically used profanity such as “shit” and “damn.” Complainant stated
S1 stopped cursing after superiors brought the matter to his attention.

Regarding claim 5, Complainant stated that when S1 joined the office in July 2015, a coworker
(C2) asked him what he preferred to be called, and C2 informed Complainant that S1 preferred to
be called by his first name. Complainant stated that S1 told her to call him “Dr.” after she sent S1
slides for the Texas meeting. Complainant stated that she felt that S1 was trying to put her in her
place and let her know who was boss, and coworkers reported that S1 had not directed them to call
him “Dr.” She stated that on October 14, 2015, S1 sent an email to employees asking them to refer
to him as “Dr.”

Regarding claim 6, Complainant stated that C2 became very angry and refused to speak with her.
She stated S1, an IT employee, and others raised their voices about a failed server incident wherein
information was lost, but management failed to intervene. Complainant stated that this contributed
to a growing negative environment, and she was concerned about the relationship between Q&P
and IT. She stated that C2 refused to work on any projects with the IT employee, which resulted
in Complainant having to absorb C2’s Business Process Analyst workload.

After 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 EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to unlawful
harassment or discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S1 falsely asserted that he did not assign her recruitment
duties. Complainant further contends that recruiting employees is not in her GS-13 Program
Analyst position description; it is part of the position description for GS-14 Supervisory Program
Analysts.
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Complainant maintains that she was constantly given tasks equivalent to GS-14 employees instead
of other GS-13 employees. The Agency requests that we affirm its final decision.

STANDARD OF REVIEW

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”).’’

ANALYSIS AND FINDINGS

Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order 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 to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

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In this case, for purposes of analysis, we assume arguendo that Complainant established a prima
facie case of disparate treatment. Nevertheless, we find that the Agency provided legitimate,
nondiscriminatory explanations for its actions. Specifically, regarding claim 1, S1 stated that he
did not assign Complainant recruitment duties, and he did not remember assigning her to create a
manager’s presentation. S1 also stated that he had to present at a managers’ meeting and asked all
four sections of the office to make presentations about their work. S1 further stated that
Complainant was identified as the subject matter expert for the completion of the Job Analysis and
Crediting Plan for a GS-9 Program Analyst position. S1 stated that all Q&P employees were
assigned reports.

Regarding claim 2, S1 stated that he was the deciding official for the GS-14 Q&P
Management/Supervisory Program Specialist position. S1 further stated that a panel of three
managers rated and ranked applicants, and he then interviewed the highest rated applicants. S1
stated that he did not interview Complainant because her name was not forwarded by the selection
panel. S1 stated that the selectee was chosen because he received the highest interview scores. S1
stated that the selectee is male, but he did not know his race.

A selection panelist (P1) stated that he believed Complainant met the overall requirements of the
position. P1 further stated that Complainant was not selected for an interview because her
application did not articulate a higher level of skills and abilities, and higher rated applicants had
more experience in leading and supervising teams. Another panelist (P2) stated that the panel gave
Complainant scores of 3, 3, 1, 3, and 5, out of 5 points, which reflected that she met the requisite
experience in the elements where she received at least a 3, but she did not demonstrate an advanced
level of experience. P2 further stated that Complainant received 5 points on one element because
she clearly demonstrated she had outstanding experience in collaboration, but she only received 1
point on one element because she did not provide any specific examples of qualitative or
quantitative methods she used in her job.

Additionally, in ratings notes, P2 reported that Complainant’s application did not provide any
specific examples that demonstrated her knowledge of analytical and evaluative methods for
assessing program development or execution. P1 further reported that Complainant’s application
did not provide any examples of exceptional skill in performing with a high level of
communication skill in order to present complex and interrelated concepts and information.

Regarding claim 3, S1 stated that on September 12, 2015, he approved Complainant’s request to
work eight hours that weekend. He stated that on October 23, 2015, Complainant notified him
that she had not been paid for four hours of overtime on September 12, 2015, and four hours of
overtime on September 13, 2015. S1 stated that Complainant was initially paid compensatory
times for those dates, but she requested overtime pay. He stated that overtime pay and
compensatory pay are used synonymously. S1 further stated that he then told Complainant to
discuss the matter with her new direct supervisor.

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Regarding claim 4, S1 stated that he did not use the words “shit” and “damn” in front of
Complainant. With respect to claim 5, S1 stated that he instructed all employees to refer to him
as “Dr.” Regarding claim 6, S1 stated that after Complainant reported tensions with and among
coworkers, a team facilitation was scheduled, and C2 was detailed to another position. S1 further
stated that he individually met with each employee and heard what they had to say about the
disputes.

In an effort to prove pretext, Complainant maintains she is not a Customer Service Specialist, and
therefore, was not a subject matter expert for recruiting Customer Service employees.
Complainant also maintains that she was constantly given tasks equivalent to GS-14 employees
instead of other GS-13 employees. However, Complainant stated that she did not object to being
assigned recruitment duties because she thought the assignment would assist in obtaining a
promotion. Complainant further stated that her enhanced MD-715 duties were reassigned to a GS-
14 Program Analyst after she objected to them, and thereafter, she only contributed within the
scope of her position. Further, regarding the presentation for the manager’s meeting, Complainant
stated that she did not ultimately present at the meeting.

Regarding Complainant’s nonselection for promotion, although Complainant’s qualifications are
impressive, we do not find that they were plainly superior to the selectee’s qualifications. In so
finding, we note that the selectee was already a GS-14 Management/Program Analyst.
Complainant also alleged that she was subjected to harassment when she heard S1 use profanity
However, while the alleged utterances were certainly inappropriate and unprofessional, if made,
they do not reflect animus against Complainant’s sex, race, or EEO activity. See Holmes v. Dep’t
of the Navy, EEOC Appeal No. Appeal No. 0120081050 (Jan. 27, 2011).

We find that Complainant did not prove that the Agency’s nondiscriminatory explanations for its
actions are pretext for unlawful discrimination. Thus, we conclude that the AJ properly found that
Complainant did not prove she was subjected to unlawful discrimination or harassment. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons
set forth herein.

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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.

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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

November 30, 2018
Date