Karren N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0520180214 (E.E.O.C. Dec. 18, 2018)

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

Karren N.,1
Complainant,

v.

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

Request No. 0520180214

Appeal No. 0120161443

Hearing No. 570-2013-00296X

Agency No. 2004OCFM2012101681

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120161443 (December 21, 2017).
EEOC regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Specialist, GS-9, at the Agency’s Office of Construction and Facilities Management in
Washington, D.C. The Director of the Facilities Programs and Plans served as Complainant’s
first-level supervisor (S1).

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 February 6, 2012, Complainant contacted an EEO counselor alleging discrimination. On May
24, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected her to
discrimination and harassment on the bases of race (African-American), national origin
(Caribbean), sex (female), age (over 40), and reprisal when:

1. In April 2010, the Human Resources Specialist offered her a GS-7, Program Support
Assistant position, after she had already been offered a GS-9/11 Administrative
Specialist position, and stated not to worry about accepting the position because
Complainant would be “squared away when she came on board.”
2. On January 27, 2012, S1 did not include the Administrative Specialist GS-11 duties
Complainant performed in her performance evaluation.
3. On February 7, 2012, S1 informed her that she would not be promoted to a GS-11
Administrative Specialist because she had reached her position’s full performance
level of Program Support Assistant, GS-9.
4. On February 7, 2012, S1 removed the executive correspondence and supply function
from her job duties.
5. On February 24, 2012, a coworker violated her personal workspace by touching her
radio and work station.
6. On February 27, 2012, S1 spoke to Complainant in a condescending tone.
7. On March 14, 2012, a coworker spoke to her in a nasty tone when she sent an email
out to staff.
8. On March 14, 2012, the Program Manager told Complainant and others that he had a
dream of her killing people in the office.
9. On March 22, 2012, she requested a desk audit and no action was taken.
10. On April 19, 2012, a coworker sent an email to other employees about her.
11. On April 26, 2012, a coworker made an unprofessional comment about her to two
other co-workers.
12. On May 2, 2012, S1 met her regarding her union grievance without the offer of union
representation.
13. On May 4, 2012, S1 told her that performance issues and solutions would be
addressed during her EEO mediation.

As an initial matter, the Agency dismissed claim (1), pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO counselor contact. The Agency also dismissed Complainant’s claim of harassment
for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). The Agency accepted the
remainder of the complaint for investigation.

At the conclusion of the investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). However, she subsequently
withdrew her hearing request. The matter was remanded back to the Agency for a final agency
decision. The Agency determined that the dismissal of the harassment claim was not appropriate
and conducted a supplemental investigation into the allegations.
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It is noted that, during the investigation, the Agency failed to include Complainant’s basis of
retaliation, but Complainant did not correct the Agency’s omission. Following the Agency’s
supplemental investigation, the Agency issued its final decision on March 10, 2016.

In the Agency’s final decision, it reaffirmed its earlier dismissal of claim (1), concerning the
offer of a GS-7 position in 2010, for untimely EEO Counselor contact. The Agency noted that
Complainant did not seek EEO counseling until 2012, well beyond the 45-day time limit. The
Agency also dismissed claims (2), (3), and (9) pursuant to 29 C.F.R. § 1614.107(a)(4) for raising
the same matter in a grievance. In addition, the Agency dismissed claims (12) and (13), pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant’s
claim of denial of union representation constituted a collateral attack. Further, in claim (13),
Complainant raised an issue concerning the mediation of her EEO complaint.

The Agency distilled the remaining claims into a claim of disparate treatment when S1 removed
the executive correspondence and supply function from her job duties as alleged in claim (4), and
a claim of harassment. The Agency found that Complainant failed to show that she was subjected
to disparate treatment and/or harassment on the basis of race, national origin, sex, and/or age.
Complainant appealed to this Commission.

In EEOC Appeal No. 0120161443, the decision determined that Complainant did not challenge
the Agency’s finding of no discrimination based on her race, national origin, sex, and age. As
such, the previous decision declined to address those bases. The decision focused only on the
Agency’s asserted failure to address Complainant’s reprisal claim. The decision noted that
Complainant failed to inform the Agency that its letter accepting her complaint had not included
the basis of retaliation. As a result, the Agency did not investigate Complainant’s claim of
disparate treatment and/or harassment on the basis of unlawful retaliation. The decision held that
due to Complainant’s failure to make the Agency aware of the omission of her retaliation claim,
the Agency had correctly framed the complaint as consisting only of her race, national origin,
sex and age claims. As the decision had already found Complainant was not challenging the
Agency’s finding of no discrimination on those bases, it concluded that the Agency’s final
decision should be affirmed.

On request for reconsideration, Complainant contends that the previous decision should be
reversed because she did appeal the Agency’s finding of no discrimination based on age with
respect to claim (4) and her claim of harassment on the bases of race, national origin, and sex.
Further, Complainant argued that claim (1) was not dismissed in its entirety. Complainant
asserted that it should have been addressed as part of her claim of harassment. She also claimed
that the previous decision merely affirmed the Agency’s final decision without any analysis.

ANALYSIS

Upon review, we find that the previous decision failed to properly address Complainant’s claims
of discrimination.
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A fair reading of her July 13, 2016 brief submitted in her original appeal indicates that
Complainant did, in fact, challenge the Agency’s determination of no discrimination on her race,
national origin, sex and age claims, as well as the procedural dismissal of some of her
allegations. As such, we vacate the previous decision in Appeal No. 0120161443 on our own
motion and address the merits of Complainant’s complaint alleging disparate treatment and
harassment on the bases of race, sex, national origin, age and/or retaliation for her prior EEO
activity.

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”).

Procedural Dismissals

Claim 1

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in
accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an
aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the
effective date of the action.

Upon review, we find that Complainant failed to raise claim (1) in EEO counseling, concerning
events that occurred in 2010, until nearly two years beyond the 45-day limitation period. We
also not that Complainant has asserted that claim (1) should be considered part of her overall
claim of harassment. The Supreme Court of the United States has held that a complainant
alleging a hostile work environment will not be time barred if all acts constituting the claim are
part of the same unlawful practice and at least one act falls within the filing period. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however,
that “discrete discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Id. The Court defined such “discrete discriminatory acts”
to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts
that constitute separate actionable unlawful employment practices. Id. Finally, the Court held
that such untimely discrete acts may be used as background evidence in support of a timely
claim. Id.
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Here, however, Complainant has not shown how the action in claim (1) by a Human Resources
Specialist was in any way connected to the actions of S1 or the coworkers alleged to have
committed the timely raised harassing incidents that were part of the ongoing discriminatory
hostile work environment claim. Therefore, we find that Complainant has not established that the
incident in claim (1) should properly be considered as part of Complainant’s claim of ongoing
harassment. As such, we affirm the dismissal of claim (1).

Claims 2 and 3

The Agency dismissed claims (2) and (3), finding that Complainant had raised them in a union
grievance. EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by
an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that
permits claims of discrimination to be raised in a negotiated grievance procedure, a person
wishing to file a complaint or grievance on a matter of alleged employment discrimination must
elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not
both. An aggrieved employee who files a grievance with an agency whose negotiated agreement
permits the acceptance of grievances which allege discrimination may not thereafter file a
complaint on the same matter under this part 1614 irrespective of whether the agency has
informed the individual of the need to elect or whether the grievance has raised an issue of
discrimination. The Agency provided a copy of Complainant’s grievances in which she alleged
that GS-11 duties were not included in her performance appraisal as alleged in claim (2), and that
she was denied a promotion to GS-11 as alleged in claim (3). The Agency also provided a copy
of the negotiated grievance procedure indicating that employees may allege claims of
discrimination in a grievance. As such, we find that the Agency’s dismissal of claims (2) and (3)
was appropriate.

Claims 9, 12 and 13

The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No.
05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept.
22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).

Claim (12) involves Complainant’s rights under the relevant negotiated grievance process, and
must be raised through that process and not as part of an EEO complaint. Similarly, claim (9)
concerns a proposal by the union for a desk audit to settle a grievance. As this matter was also
firmly enmeshed in the negotiated grievance process, it was not appropriately raised as part of an
EEO complaint. Finally, claim (13) involves an alleged statement made as part of the EEO
mediation process. We find that such a claim is not independently actionable and was
appropriately dismissed.

Disparate Treatment – Claim 4

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A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Complainant asserted in claim (4) that S1 (Caucasian/white, male) removed her Executive
correspondence and supply functions from her job duties and gave them to her coworker (“Staff
Assistant”) (African-American, female, late-30s, of unknown national origin). S1 averred that he
did reassign those duties to the Staff Assistant, who was a new staff member, because her
position was responsible for those functions in the office. He noted that the Staff Assistant’s
position description included these duties and he felt that she should be the one handling the
duties. A Human Resources Liaison confirmed S1’s statement that the shift in duties would not
affect Complainant’s grade. She stated, “shifting one or two duties of that nature would not be
grade controlling because [Complainant] was still doing some executive correspondence.”

Upon review, we find that the Agency has met its burden of articulating a legitimate, non-
discriminatory/non-retaliatory reason for the disputed action. Complainant has failed to prove, by
a preponderance of the evidence, that this proffered reason for the disputed action was a pretext
masking discrimination or unlawful retaliation.

Harassment

In her harassment claim, in addition to the incidents discussed above, Complainant alleged that
S1 and coworkers subjected her to nasty tones, condescending speech, violations of her personal
space, and touching of her personal radio. She further asserted that coworkers were talking about
her and making unprofessional comments about her.
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She said these incidents had the effect of isolating her in the office, and encouraged staff to
continue to ignore her and talk negatively about her. These events were raised in addition to
claim (4) in support of her claim of a hostile work environment.

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 a protected basis – in this case, her race, sex, national origin, age
and/or retaliatory animus. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Here, beyond her bare assertions, there is no evidence that discriminatory or retaliatory animus
played any role in the incidents Complainant presented as part of her harassment claim even
assuming the events occurred as alleged.

We find that many of Complainant’s harassment allegations can generally be described as
common workplace disagreements with managerial decisions. Without evidence of an unlawful
animus, we have found that similar disputes do not amount to unlawful harassment. See
Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record
established that the issues between the complainant and the supervisor were because of
personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment).

We also note Complainant’s allegations relating to being isolated by staff or being treated in a
harsh or unfriendly manner by coworkers. Even if these allegations were true, we find they are
insufficiently severe or pervasive to have altered the conditions of her employment. The
incidents involved are of a type that typically arise out of coworker petty disputes, personality
conflicts, or poor communications. However, EEO laws are not a civility code. Rather, they
forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). After careful
review of the record, including Complainant's contentions on appeal, we conclude that a case of
harassment is precluded here based on our finding that Complainant failed to establish that any
of the actions taken were motivated by her protected bases or prior protected activity.

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CONCLUSION

After reconsidering the previous decision and the entire record, it is the decision of the
Commission to vacate the decision in Appeal No. 0120161443, and reopen the appeal on our
own motion. Based on our independent review of the evidence, as well as all statements
submitted by the parties, the Agency's final decision concluding no discrimination or retaliation
has been proven is AFFIRMED. As this decision vacated the previous decision, we shall provide
both parties with reconsideration rights.

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).

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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 18, 2018
Date