Jane A.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 14, 2017

0120160129 (E.E.O.C. Dec. 14, 2017)

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

Jane A.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120160129

Agency No. 200P-0644-2014103818

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the September 4, 2015 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human
Resources Specialist at the Agency’s VA Healthcare System in Phoenix, Arizona. Complainant
alleged that on an unspecified date, her supervisor (S1-1, female) directed her to place two of her
subordinates on Performance Improvement Plans (PIPs) after they filed EEO complaints against
S1-1.2 Complainant believed that S1-1 was unlawfully retaliating against the employees for their
protected EEO activity, and she refused to take any action against them.

Complainant alleged that S1-1 told her that she was expected to work 10 hours per day, and that
she understood that she would not be granted overtime or compensatory time. In mid-December

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.

2 S1-1 retired in January 2015 and declined to participate in the investigation of this complaint.
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2013, Complainant claimed that the Administrative Officer (AO) asked her why she was not
recording all of her extra hours. Complainant replied that she was not entitled to overtime or
compensatory time. Complainant stated that AO informed her that other managers were
receiving overtime. Complainant asserted that she did not inquire immediately about it, but
sometime in June 2014, she requested overtime for her team. Complainant stated that she was
told there was none available. Complainant claimed that she later learned that the Staffing team
and supervisor had been receiving mandatory overtime in January and February 2014 along with
the Employee Relations and Labor unit.

Complainant alleged that after she failed to attend a supervisory meeting because of a meeting
with her staff, S1-1 told an HR Specialist that Complainant would no longer be invited to the
meetings anymore. Complainant stated that she told S1-1 that she never felt welcome in any
meetings. Complainant added that in April 2014, one of the units she supervised was dissolved
and she had not been a part of the meetings during which this was discussed. Complainant
claimed that her work performance was negatively affected because she believed she was going
to be fired.

On February 12, 2014, S1-1 accused Complainant of behaving unethically when she provided a
recommendation for a former co-worker to a prospective employer. Complainant answered
questions about the matter and was ultimately cleared of any misconduct.

On June 9, 2014, Complainant’s temporary supervisor (S1-2) issued Complainant a Letter of
Expectations. The Letter identified specific areas that he wished for Complainant to focus on
improving. Additionally, S1-2 stated in the Letter that he expected Complainant to “focus on
being a team player” and to “avoid workplace politics and refrain from having (initiating,
engaging, or participating in) any negative conversations and/or discussions about any co-
workers or other supervisors.”

On August 29, 2014, S1-2 issued Complainant a Fiscal Year 2014 interim performance
evaluation. Therein, S1-2 rated Complainant as “Fully Successful.” S1-2 noted in the interim
evaluation that Complainant was working under a Letter of Expectations, but that he had
observed noticeable improvements in the areas outlined in the Letter. On December 3, 2014, S1-
1 issued Complainant’s Fiscal Year 2014 final performance evaluation. S1-1 rated Complainant
as “Fully Successful.”

On October 9, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
(female) and in reprisal for prior protected EEO activity when:

1. On unspecified dates, Complainant was not included in meetings regarding
changes to her section;

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2. From approximately December 2013 to July 2014, Complainant was not approved
for overtime or compensatory time despite regularly working an average of 65 to
70 hours a week;

3. On February 12, 2014, Human Resource Officer accused Complainant of
unethical behavior in the recommendation Complainant made of a prior co-
worker to a prospective employer;

4. On June 9, 2014, Assistant Human Resources Chief presented Complainant with a
Letter of Expectations;

5. On or about December 3, 2014, Complainant received a lower graded evaluation
than from prior years despite receiving special contribution awards and other
recognition.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that management
had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to her claim
regarding overtime, S1-2 stated that management had problems with Complainant requesting
overtime in advance and working overtime without informing management thereby forcing
management to compensate her. S1-2 stated that he instructed Complainant to request the time
in advance, and Complainant stopped working overtime or accruing compensatory time. S1-2
added that Complainant’s staff continued to work overtime, however, without requesting it in
advance. S1-2 stated that management was constantly coaching Complainant on how to
appropriately request overtime and compensatory time and how to justify the request for
approval. S1-2 confirmed that management paid Complainant for overtime until the issue was
resolved.

With respect to the Letter of Expectations, S1-2 stated that management had a variety of
performance issues that they felt were important to bring to Complainant’s attention so that she
would not be surprised when her performance evaluation rating came out. S1-2 added that
management engaged in conversation with Complainant about what the expectations for her
were and how management could assist her in becoming successful. As a result, management
issued Complainant the Letter of Expectations as documentation to inform Complainant as to
what the expectations were for her performance and ways she could improve.

Regarding her 2014 performance, the record revealed that Complainant did receive ratings of
“Excellent” on her 2012 and 2013 performance evaluations. However, these ratings were issued
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while Complainant encumbered her former position of Human Resources Specialist. During the
2014 rating period, Complainant had been promoted to Supervisory Human Resources
Specialist, and was rated under a different set of performance standards. Further, S1-2
documented Complainant’s performance deficiencies first in the June 2014 Letter of
Expectations and then in the August 2014 interim performance evaluation. S1-2 rated
Complainant as “Fully Successful” in the interim performance evaluation. The interim
performance evaluation was issued to provide input to the person who would be issuing
Complainant’s final rating. S1-2 documented Complainant’s performance issues including
Complainant’s failure to work with other supervisors as a member of the team, her need to
refocus her efforts to supervisory tasks and provide guidance to her employees, and her failure to
produce documentation to fill vacancies.

Finally, Complainant alleged that as part of the general retaliation, she was subjected to sexual
harassment by S1-1. Complainant claimed that S1-1 attempted to engage in conversations with
her about oral sex, other employees’ sexual activities, and Complainant’s breasts. Complainant
believed that she became a target for S1-1 after she failed to participate in the conversations.
The Agency determined Complainant failed to identify any witnesses in support of her claims
and produced no evidence to corroborate her allegations. As a result, the Agency concluded that
Complainant failed to show that she was subjected to sexual harassment.

The Agency determined that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency management lied about her, set impossible
objectives, and accused her of being incompetent for refusing to take personnel actions against
employees that she knew would be in violation of EEO laws. Complainant argues that the record
evidence supports her harassment claims. Complainant claims that she refused to participate in
S1-1’s scheme of illegal practices and suffered reprisal as a result. Accordingly, Complainant
requests that the Commission reverse the FAD. The Agency submitted a statement in opposition
to the appeal in which it urged the Commission to affirm its FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment – Non-Sexual Harassment

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
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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.

The Commission notes that Complainant chose not to request a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her protected classes, management officials subjected her to
a hostile work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that Complainant has not
shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. 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 regard to her overtime claim, S1-2 affirmed that Complainant
often failed to comply with Agency policy by requesting overtime or compensatory time in
advance and management would not learn about it until after she had worked the additional time.
ROI, at 136. S1-2 confirmed that management compensated Complainant for any time that she
worked; however, he continually instructed her to request the time in advance. Id. S1-2 added
that Complainant eventually stopped working any additional time, but she still had issues with
Complainant’s employees doing the same. Id. S1-2 stressed that management continued to
compensate all employees until the issues were rectified. Id. at 136-37. As to her claim that she
was excluded from meetings, S1-2 explained that Complainant was never excluded; rather, she
refused to attend and claimed that she was too busy and not interested in attending. Id. at 146.

As to the accusation of unethical behavior, S1-2 stated that management received information
from the Veterans Integrated Service Network (VISN) Office regarding an accusation of a
possible violation prior to Complainant’s transfer to their office. ROI, at 146. S1-2 explained
that a co-worker attempted to list Complainant as his supervisor to avoid getting a bad reference
from his actual supervisory chain. Id. Complainant was asked about the matter and she provided
an appropriate response indicating that there was no misconduct on her part. Id. at 146-47.
Management reported back to the VISN Office and the matter was dropped. S1-2 stressed that
Complainant suffered no negative repercussions and management supported Complainant in
getting the accusation closed. Id. at 147.

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Regarding the Letter of Expectations, S1-2 affirmed that Complainant had a variety of
performance issues that management thought were important to bring to her attention. ROI, at
129. S1-2 stated that he issued the Letter of Expectations to document these issues to assist her
in improving and to ensure she would not be surprised when her annual evaluation was issued.
Id. S1-2 noted that he met with Complainant weekly after presenting her with the Letter of
Expectations to coach her and assist her in being successful. Id. at 131-32. As to her
performance evaluation, S1-2 asserted that management had concerns about the supervisory
elements of Complainant’s performance. Id. at 184. S1-2 explained that although Complainant
resisted some of his elements to coach and mentor her, she was able to raise her performance to
the “Fully Successful” level. Id. S1-2 added that while Complainant believed she should have
been rated higher, her performance was not at the level of those who far exceed or significantly
surpass all of their critical element standards and the performance expectations of her peers. Id.

Hostile Work Environment - Sexual Harassment

Finally, with respect to Complainant’s sexual harassment claim, to establish a case of sexual
harassment creating a hostile work environment, Complainant must show, by a preponderance of
the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome
sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or
condition of employment, either unreasonably interfering with the work environment or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16,
1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

The Commission notes again that it does not have the benefit of an Administrative Judge’s
credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts
based on the weight of the evidence presented. The Commission finds that Complainant has not
established, by a preponderance of the evidence, that she was subjected to sexual harassment.
More specifically, the Commission finds Complainant failed to show that the alleged sexual
conversations and comments occurred. Complainant failed to offer any corroborating evidence
to support her contentions that S1-1 subjected her to any verbal conduct of a sexual nature.
However, even assuming that the conduct occurred as alleged, the Commission finds that the
alleged conduct was not sufficiently severe or pervasive to establish an intimidating, hostile, or
offensive work environment. In addition, there is no evidence that Complainant reported the
alleged conduct to any management official. As a result, the Commission finds that Complainant
has not established that she was subjected to sexual harassment or a hostile work environment as
alleged.

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Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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.

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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

December 14, 2017
Date