Jannet O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120171128 (E.E.O.C. Nov. 2, 2018)

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

Jannet O.,1
Complainant,

v.

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

Appeal No. 0120171128
Agency No. 200P-0612-201510279

DECISION

On January 24, 2017, 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
December 13, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issue presented in this case, is whether the Agency’s final decision (FAD) erred in finding that
Complainant was not subjected to discrimination and/or harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinic Pharmacist,
GS-12 at the Agency’s Community Living Center facility in Martinez, California. On July 14,
2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and
subjected her to harassment on the bases of race (Caucasian), sex (female), disability (mental), and
reprisal for prior protected EEO activity when:

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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1. On or about July 29, 2013, Complainant was subjected to a violent interaction with
a male co-worker. Complainant’s supervisor took the side of the co-worker;
2. On or about December 2013, Complainant’s supervisor told Complainant that her
job was not the right job for her;
3. On or about December 20, 2013, Complainant’s supervisor verbally admonished
Complainant for not doing work;
4. On or about January 31, 2014, Complainant’s supervisor conducted a verbal mid-
year performance evaluation of Complainant, where Complainant was criticized,
called childish, and passive-aggressive;
5. On or about February 5, 2014, Complainant’s supervisor provided Complainant
with her written mid-year performance review where she gave Complainant more
unjustified criticisms;
6. On or about June 27, 2014, Complainant’s supervisor forced Complainant to endure
an angry public confrontation, accused Complainant of being sarcastic, denied her
request to return to work, and verbally admonished her;
7. On or about July 10, 2014, Complainant’s supervisor assigned Complainant menial
work duties that were the responsibility of another coworker;
8. On or about August 5, 2014, Complainant’s supervisor informed Complainant that
she does not do her fair share of workload in comparison to her Asian coworkers
and threatened Complainant stating that her job could have been divided up instead
of her being hired;
9. On or about October 23, 2014, Complainant’s supervisor denied Complainant’s
previously approved leave requests, telling Complainant to “lose” her annual leave
hours;
10. On or around October 28, 2014, Complainant’s supervisor rated Complainant
“Fully Successful” on her annual performance appraisal, denying Complainant a
performance award and the opportunity for advancement;
11. On or about February 27, 2015, Complainant’s supervisor issued Complainant
written counseling which included the threat of disciplinary action;
12. On or about March 18, 2015, Complainant’s supervisor publicly asked
Complainant, “How could you be so disrespectful?” and “Why are you behaving
this way?”;
13. On October 27, 2015, Complainant received a performance appraisal which
included unwarranted evaluations and comments, and included reference to
discipline that occurred more than six months earlier.2

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 Equal Employment
Opportunity Commission Administrative Judge. 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

2 Claims 11 and 13, identified in support of Complainant’s hostile workplace harassment claim,
were also accepted as individually cognizable disparate treatment claims, and were analyzed as
such.
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Complainant failed to prove that the Agency subjected her to discrimination as alleged. The
Agency procedurally dismissed claims 9 (management denied her leave request) and 10 (received
a lowered performance appraisal). The Agency found that Complainant did not contact an EEO
Counselor within the proscribed 45-days of the incident or when she obtained knowledge of the
incident.

Next, the Agency analyzed the disparate treatment claims. Regarding claim no. 11 (written
counseling), the Agency found that Complainant did not demonstrate a prima facie case of
retaliation because Complainant had not previously engaged in protected EEO activity.
Notwithstanding, the Agency indicated that assuming, arguendo, Complainant established a prima
facie case of retaliation, the Agency articulated a legitimate, nondiscriminatory reason for its
action, namely that Complainant was issued a written counseling after she was rude to a nurse that
called the pharmacy and told the nurse that she “hated her workplace.” The Agency found that
Complainant did not show that the Agency’s reasons were pretext for discrimination.

Likewise, with respect to claim no. 13 (performance appraisal that included information of her
being disciplined), the Agency maintained that it articulated a legitimate, nondiscriminatory reason
for its action, namely that Complainant’s FY 2015 annual performance evaluation correctly noted
that she was involved in two incidents with non-pharmacy staff. Complainant’s supervisor (S1),
explained that the notation was relevant to Element (5), Customer Service and Interpersonal Skills.
Complainant argued that the fact that she received counseling regarding these incidents should not
have been included in her performance appraisal. The Agency explained that nothing in the
collective bargaining agreement prohibited management from making reference in an annual
performance evaluation, to an employee’s misconduct or receipt of counseling during the relevant
rating period. Again, the Agency indicated that Complainant did not show that the Agency’s
articulated, legitimate nondiscriminatory reason was pretext for discrimination or that
discriminatory animus was involved.

With regard to the remaining claims, the Agency explained that Complainant provided no evidence
to support her allegations, and, witnesses did not support her characterization of the events. The
Agency maintained, however, that even if these events occurred exactly as described, Complainant
did not show that discriminatory animus was involved in addressing her workplace conduct.

With respect to Complainant’s allegation of harassment, the Agency found that Complainant’s
harassment claim focused primarily on S1’s attempts to: (a) address documented workplace
disputes involving Complainant; (b) discipline Complainant for “disrespectful” workplace
conduct; and, (c) provide oversight and feedback regarding Complainant’s performance of duties.

Further, management maintained that even accepting Complainant’s characterization of her
interactions with S1 as true, the tone or volume of S1’s voice during isolated moments of
frustration was insufficient to establish that Complainant’s protected status - as opposed to her
workplace conduct - motivated the challenged actions. Complainant did not identify any similarly
situated employees, outside of her protected classes, who engaged in similar workplace conduct,
but who did not receive supervisory counseling.
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Moreover, the record demonstrated that Complainant was not denied annual leave, as she seems
to allege. The record reflects that upon approving Complainant’s leave request, S1 and S3 advised
her that she could not carry over excess annual leave into the next fiscal year. Complainant did not
identify any similarly situated co-workers, outside of her protected classes, who were permitted to
carry over excess annual leave. Therefore, the Agency found that Complainant failed to raise an
inference of discrimination through comparative evidence, nor did the record demonstrate that
management made any comments reflecting discriminatory/retaliatory animus. Finally, the
Agency noted that only one of the thirteen claims identified by Complainant occurred after she
engaged in protected EEO activity (i.e., claim 13). Therefore, the Agency found that claims 1- 12
could not possibly have been motivated by retaliatory animus. Thus, the Agency found that
Complainant failed to prove that she was subjected to discrimination, retaliation, or workplace
harassment with respect to the matters raised in this complaint.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the Agency did not give full
consideration to all 13 claims. She also asserts that claims 9 and 10, should not have been
dismissed as untimely. Finally, she maintains that her PTSD and depression allegations were
inadequately investigated.

In response, the Agency contends, among other things, that Complainant provided no evidence
that discriminatory animus was involved with respect to any of her claims. Moreover, the Agency
contents that her allegations involve work related matters that were not severe or pervasive enough
to establish a hostile work environment.

ANALYSIS AND FINDINGS

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”).

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For 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.
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McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back 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, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency properly dismissed claims 9 and 10 because
they were discrete, adverse acts upon which Complainant should have reasonable suspected
discrimination and sought an EEO counselor within 45 days after the incidents. Claims 9 and 10,
however, will be considered as background evidence for Complainant’s overall harassment claim
below. Further, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination as to all her bases, the Agency articulated legitimate, nondiscriminatory reasons for
its actions, as was discussed above. We find that Complainant provided no evidence which showed
that the Agency’s reasons were pretext for discrimination or that discriminatory animus was
involved. In fact, the record indicates that even the witnesses that viewed these incidents did not
support Complainant’s interpretation of the events that occurred.

Additionally, we find that other than Complainant’s conclusory statements on appeal, she did not
provide any evidence which suggested that discrimination was involved or that an incomplete
investigation was performed. As Complainant did not request a hearing, we do not have the benefit
of an Administrative Judge’s credibility determinations after a hearing; therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.

As to Complainant’s harassment claim, we have long held that harassment is actionable if it is
sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s
employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift
Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show
that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on the
statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v.
United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).

In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at
issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the
nature and frequency of offensive encounters and the span of time over which the encounters
occurred.
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See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-
915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No.
05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions
of employment.” Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23,
2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such
conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and ... that the victim in fact did
perceive to be so.” Id.

Upon review, we find that Complainant has not established a claim of harassment. Complainant
has not provided evidence which indicates that she was subjected to conduct which had the purpose
or effect of unreasonably interfering with her work performance, and/or created an intimidating,
hostile, or offensive work environment. We find, in light of the standards set forth in Harris, no
persuasive evidence that the incidents -- even if accurately described by Complainant, were
sufficiently severe or pervasive enough to have unreasonably interfered with her work
performance and/or to have created an intimidating, hostile, or offensive work environment.

Therefore, we find that the preponderance of the evidence does not support Complainant’s
allegations that she was subjected to discrimination and/or harassment.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not establish that
she was subjected to discrimination and/or harassment.

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).
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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.

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.

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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 2, 2018
Date