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

Equal Employment Opportunity Commission

Aug 8, 2019

0120181878 (E.E.O.C. Aug. 8, 2019)

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. 0120181878

Agency No. 200I-0509-2017102475

DECISION

On May 9, 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
April 26, 2016, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether Complainant established that she was discriminated against and subjected to a hostile
work environment, based on age (over 40), color (brown), race (American Indian), national origin
(North American Indian/Alaskan Native), and reprisal (current complaint) when she was issued a
new Position Description (PD); her requests for an office change were denied; she was returned to
her permanent position in Health Administrative Services (HAS); her request to have timekeeping
responsibilities assigned to another employee was denied; and she was harassed.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-0318-
06, at the Agency’s HAS, Charlie Norwood VA Medical Center facility in Augusta, Georgia.

During the relevant period, Complainant’s first-level supervisor was the Chief of HAS (S1) and
her second-level supervisor was the Assistant Chief of HAS (S2). Complainant contended that the
facility’s Associate Director (S3) and a colleague, an Administrative Officer (AO), shared in
subjecting her to discriminatory and harassing conduct along with S1 and S2.

Complainant testified that she shared office space with AO, and repeatedly requested a change.
On February 17, 2017, Complainant emailed S1, stating that she wanted to express her frustration
with sharing an office with AO. Report of Investigation (ROI), at 348. Complainant asserted that
in her opinion the office belonged to AO and Complainant felt that she was being undermined by
AO. Id. Complainant’s email went on to assert complaints about posting overtime for employees
she felt were abusing it and she expressed that she was embarrassed when S1 addressed her as
“Queen of Timekeepers.” Id.

On February 21, 2017, S1 emailed Complainant to inform her that she was continuing to secure
additional space to move Complainant or AO. ROI, at 323. S1 stated that it was not unprofessional
or inappropriate to have Complainant and AO work together in the same space. Id. She told
Complainant that she was satisfied with her work and had not received negative information from
AO or anyone else. Id. S1 noted that Complainant appeared to be reporting her coworker’s
activities and requested that Complainant stop. Id. S1 concluded by clarifying Complainant’s
timekeeping responsibilities and role.

On February 21, 2017, S1 emailed Complainant regarding what she deemed inappropriate
behavior. ROI, at 315, 325. Specifically, S1 stated that they were discussing a timecard issue
when Complainant hung up on her. Id. S1 averred that Complainant became very upset and raised
her voice when S1 called back. S1 concluded by questioning whether Complainant required
customer service training to help her learn skills in that area. Id.

On February 22, 2017, Complainant responded by asserting that S1’s allegations were lies. ROI,
at 314. Complainant accused S1 of being untrustworthy and treating employees poorly.
Complainant denied raising her voice and asserted that she was frustrated about the office situation
rather than angry. Id. S1 responded that she did not have an office to which to move Complainant
and informed her that she had requested reconsideration for the space planner decisions. Id. at
313. S1 reiterated that it was unacceptable for Complainant to raise her voice and hang up, noting
that those were the behaviors she was addressing. Id. S1 informed Complainant of the expectation
that Complainant was to be at her desk in the morning to cover the phone and requested a meeting
with Complainant and her representative. In response, Complainant requested that S1 cease
accusing her of raising her voice and hanging up and addressing Complainant with inaccurate
information. Id.

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On March 17, 2017, Complainant emailed the Facility Planner, outlining reasons for why AO
required her own office. ROI, at 317, 326. S1 requested that S2 meet with Complainant and
Complainant stated that on March 23, 2017, she met with S2 to discuss performance measures,
standards, the Secretary Position Description (PD), and expectations. ROI, at 182.

On August 3, 2017, S2 emailed Complainant requesting that she post an employee’s time. ROI,
at 311-312. Complainant emailed a colleague requesting that she post the time and copied S1 on
the email. S1 responded that Complainant was instructed to enter the time. S1 noted that an audit
was scheduled, and that Complainant’s concerns had been heard. S1 reiterated that Complainant
was not responsible for the information that was provided and approved by management. S1
further stated that failure to follow the direct order to post the time could result in disciplinary
action and asked Complainant to perform the task she had been asked to complete.

Complainant testified that she requested to be moved from HAS on August 3, 2017. Complainant
confirmed that she was moved to the Pathology and Laboratory Medicine Service from August 8,
2017 through September 15, 2017. Complainant explained that she was ordered to return to HAS
on September 18, 2017, at the completion of a factfinding investigation that determined
Complainant’s allegations of harassing behavior from S1 and S2 were unsubstantiated. Id. at 179.
Complainant stated that during the meeting, she specified that she would like to be the alternative
timekeeper and S1 told her that she would remain as primary timekeeper.

On June 29, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (American Indian), national origin (North American
Indian/Alaskan Native), color (Brown), age (DOB: 1954), and reprisal for prior protected EEO
activity arising under Title VII when:

1. On March 23, 2017, she was issued a new PD;

2. During March and April 2017, her requests to move to a new office were denied;

3. On September 18, 2017, Complainant was returned to her permanent position in
HAS;

4. On September 18, 2017, Complainant’s request to have timekeeping
responsibilities assigned to another employee was denied; and

5. From February 3, 2017 to September 2017, Complainant was subjected to
harassment from her supervisors and colleagues, as evidenced by the following
events:
a. S1 did not move AO out of the shared office until the end of April 2017.
b. S1 continuously interrogated, berated, bullied, criticized, made inappropriate
comments to, lied about, spoke loudly and yelled at, and was overall mean to
Complainant; sent Complainant inappropriate emails, texts, and instant
messages; assigned Complainant unreasonable work assignments; scrutinized
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and criticized all aspects of Complainant’s work, duties, and responsibilities;
told others not to bother asking Complainant for help; and acted inappropriately
towards veterans and other employees in Complainant’s presence, which S1
knew bothered Complainant.
c. On August 4, 2017, S1 threatened Complainant with disciplinary action, the
third such threat within three months.
d. S2 berated Complainant; had a “sudden and explosive verbal outburst” directed
at Complainant; falsely accused Complainant about work matters; and ignored
Complainant’s reports that S1 asked her to inappropriately post overtime.
e. AO continuously asked Complainant questions about her work, watched her,
and overall was bothersome.
f. On unspecified dates, S1, S2, and S3 falsely accused Complainant, sent her
“nasty emails,” threatened her with disciplinary action, and made other
demands upon her.
g. From late July 2017 and ongoing, S1 required Complainant to inaccurately post
the time for an employee.
h. In early August 2017, Complainant was instructed to not distribute or pick up
mail in S3’s office.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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 discrimination as alleged.

In the final agency decision (FAD), the Agency dispensed with an analysis of Complainant’s prima
face case of disparate treatment and proceeded to considering the reasons for its actions, which it
noted were legitimate and nondiscriminatory, and Complainant’s arguments regarding pretext.

Regarding claim 1, S1 and S2 testified that Complainant’s PD was reviewed with her following
her refusal to perform assigned tasks. The Agency found that Complainant provided no evidence,
other than her unsupported testimony, that duties were added to her PD. Complainant was unable
to provide a copy of a prior existing PD that did not have the duties listed in her current PD.
Moreover, the Agency noted that the raised assignments, which included signing for mail, were
not outside the normal scope of responsibilities for a service line secretary.

As to the requests for changes to the shared office space arrangement, S1 testified that the HAS
office space does not allow for all employees to have private offices, and that workspaces are
assigned based on an employee’s role and pay grade. Management officials stressed that neither
Complainant nor AO were eligible for a private workspace and both were counseled on being a
more considerate officemate.

With respect to Complainant’s return to her permanent position, Agency officials explained that
Complainant was briefly assigned to the Pathology Lab Medicine Service at her request while
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allegations of harassment against S1 were investigated. The investigating employee had no ties to
HAS and determined that the allegations were unsubstantiated. The Agency determined that there
was no evidence that the investigation was inadequate.

Regarding claim 4, management officials averred that timekeeping is one of the main duties
assigned to the HAS Secretary. S1 stated that Complainant gave no valid reason for why she could
not perform the task and Complainant’s explanation was insufficient to warrant removing the
duties from the position. Therefore, Complainant’s request was denied. The Agency concluded
that Complainant failed to establish by a preponderance of the evidence that she was subjected to
unlawful discrimination.

Turning to Complainant’s harassment claims, the Agency found that the four discrete acts were
not discriminatory and could not be viewed as evidence in support of Complainant’s harassment
claim. The Agency added that Complainant failed to offer any probative evidence that the
remaining allegations were motivated by unlawful discriminatory bias or retaliatory animus.
Moreover, the Agency determined that Complainant was either unable to demonstrate that the
events in question were discriminatory, or the actions did not rise to the level of severe or pervasive
actions necessary to constitute harassment.

CONTENTIONS ON APPEAL

On appeal, Complainant disputes the Summary of Facts listed in the FAD. Complainant maintains
that from February 2017 through December 2017, she was subjected to disparate treatment and
harassment by the Agency and that the Agency’s version of the facts should be rejected.

The Agency, in pertinent part, maintains that its FAD should be affirmed.

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 (EEO MD-
110), at Chap. 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”).

The record details a list of numerous incidents, which occurred between February 2017 and
September 2017, in support of Complainant’s harassment claim. ROI, at 102-103. We will not
individually address each incident of alleged discrimination. Although the claims will not be
individually addressed, all matters which Complainant raised have been considered and viewed in
the context of all bases and in the context of a hostile work environment and disparate treatment.

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Harassment/Hostile Work Environment

To establish a claim of harassment 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

We find that the alleged incidents were not sufficiently severe or pervasive to establish a legally
hostile work environment. The record reflects that the alleged incidents were more likely the result
of routine supervision, personality conflicts, and general workplace disputes and tribulations. For
example, with respect to S1, Complainant alleged that S1 interrogated, bullied, criticized, lied
about, and yelled at Complainant. Complainant further took issue with S1’s emails, texts, and
instant messages, and stated that S1 assigned unreasonable work assignments and scrutinized all
aspects of Complainant’s work. Finally, Complainant contended that S1 told others to not bother
asking Complainant for help, and acted inappropriately toward veterans in Complainant’s
presence, which S1 knew bothered Complainant. Complainant presented similar difficulties
communicating and interacting with S2 and AO. The Commission notes that Title VII is not a
civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions
of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency’s
actions were based on discriminatory or retaliatory animus.

With respect to the issuance of the new PD, S2 affirmed that he went over performance standards
and Complainant’s position description in March 2017. ROI, at 260. S2 stated that the position
description was issued because Complainant had not received the PD since coming onboard. Id.
at 271. S2 explained that Complainant was provided with an advance copy to read, which S1
issued. Id. S2 noted that Complainant was hired as a GS-06 and no changes were made to her pay
grade at the time the PD was issued. Id. As for Complainant’s allegations that the PD was never
approved, S1 asserted that the GS-06 Secretary PD was written and submitted by HAS on March
16, 2016. Id. at 244. S1 stressed that a Human Resources Specialist reviewed and approved the
PD on June 16, 2017. Id.
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As to Complainant’s requests regarding the office space, S1 stated that Complainant informed her
that she did not want to share an office space with AO and felt that it was inappropriate due to
AO’s job title. ROI, at 232. S2 affirmed that Complainant sent an email to the Facility Planner
outlining why she should not share office space with AO. Id. at 269. S1 testified that Complainant
shared that she felt as if AO was watching her and reporting on her, but that Complainant requested
that she only mention that AO’s ringer was too loud. Id. S1 stressed that she informed
Complainant that the Facility Planner allocated private office space based on role and grade, and
that she could not offer Complainant or AO private office space. Id. According to S1, after
speaking with Complainant, she contacted the Facility Planner to see if there was any space
available to move Complainant or AO, but she did not hear from him for over a month because he
was out due to illness. Id.at 234. AO was ultimately moved from the workspace when a supervisor
left, and office space became available. Id. at 240.

As for Complainant’s return to her position in HAS on September 18, 2017, management officials
explained that a factfinding was conducted by another department to investigate numerous
allegations that Complainant made. ROI, at 283, 446. Pending the factfinding investigation,
Complainant was assigned to a different service line. S3 stated that on the date in question, he
held a meeting to inform Complainant that she would return to her normal position because the
allegations were not substantiated. Id.

The record before the Commission indicates that Complainant and management officials were in
ongoing conflict and contention regarding office space and timekeeping responsibilities. ROI, at
306-307. However, the record does not contain any evidence that supports a finding that
management’s actions were intended to treat Complainant differently, harass her, or retaliate
against her because of protected classes or reprisal. S1 explained that at least half of Complainant’s
duties included timekeeping, but Complainant expressed concerns about posting erroneous time
and repeatedly requested to be removed from the task. ROI, at 245-246. In response to
Complainant’s concerns, S1 requested an audit and provided Complainant with regulatory
guidance about her role and responsibilities as a timekeeper. ROI, at 245-246, 336-337, 342.

Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. Moreover, to the extent that Complainant claims she was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not shown that the
proffered reasons were pretext for discrimination. Complainant can establish pretext in two ways:
“(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that
unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd.
of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also,
McDonnell Douglas, 411 U.S. at 804-05. Complainant has not proffered any evidence from which
a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext
for discrimination or reprisal.

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On appeal, Complainant alleges that the managers lied. As Complainant did not request a hearing
before an EEOC AJ we do not have the benefit of an AJ’s credibility determinations of the
witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence,
that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant
fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283
(Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he
withdrew his request for a hearing and credibility determinations were unable to be made); Brand
v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to
establish that his coworker made offensive comments in a “he said, she said” situation where
complainant requested a final decision and an AJ did not make credibility determinations).
Accordingly, we find that the Agency did not subject Complainant to discrimination or a hostile
work environment based on her protected classes or in reprisal for her protected EEO activity, as
alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s decision finding that Complainant was
not discriminated against, nor harassed, 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.
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
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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
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 8, 2019
Date