0120170513
09-06-2018
Kelsie T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kelsie T.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170513
Agency No. 200306092015103318
DECISION
On November 8, 2016, 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 October 25, 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 (FAD).
ISSUES PRESENTED
Whether Complainant established that she was discriminated against based on age (66) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967 when she was issued a letter of admonishment for insubordination and hostility towards her supervisor and subjected to harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety Patient Manager. GS-12/5 at the Agency's VA Medical Center facility in Marion, Ohio. On August 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her as set forth above. Based on the record, Complainant stated that she engaged in EEO activity in 2014 when "she contacted the EEO Office, but did not pursue an EEO complaint." The events at issue in this Complaint are based on events she averred occurred between May 7, 2015 through June 18, 2015. Complainant's first level supervisor, S1, is the Chief of Quality Management Service. Complainant's second level supervisor, S2, is the Associate Medical Center Director. The third level supervisor was S3. Two other witnesses were involved in the matter as witnesses, W1 and W2, who are also employees of the Medical Center. All five individuals stated that they were unaware of Complainant's prior EEO activity or Complainant's age. Complainant, when asked how the five individuals knew about her prior EEO activity and her age "was uncertain."
The events in this matter primarily involved ongoing disputes between Complainant and S1. Complainant stated that she informed S1 that she (Complainant) returned to the workplace after work hours on May 6, 2015, to retrieve her phone, and that she performed work duties until 10:00 p.m. Complainant stated that they argued over whether Complainant was telling the truth and exchanged words over how long Complainant would remain employed at the Agency. Complainant stated that she would retire when she was ready and alleged that S1 said, "We will see." S1 stated that she would never make such a comment.
On May 8, 2015, Complainant stated that she attended a morning meeting on her scheduled day off. Complainant stated that S1 yelled at her to "Get out of here ... you are being insubordinate, if you don't leave right now, you are insubordinate. I am going to get you yet, you are done for." S1 stated that she directed Complainant to go home because it was Complainant's day off. Complainant refused to leave. S1 stated that she would take disciplinary action. Complainant stated, "go ahead." The record states that there were no witnesses to this matter.
On or about May 11, 2015, S1 requested assistance from Human Resources regarding Complainant's May 8th's disagreement. S1 issued a letter of admonishment.
Although Complainant disagrees with the date(s), in June or July 2015, Complainant provided statements to an Administrative Investigative Board (AIB). Complainant identified S1 as responsible for requesting the AIB, but S3 acknowledged responsibility for the AIB. The AIB reviewed various matters unrelated to Complainant, but did include in its review complaints that Complainant "bullied" some of the medical center employees. The AIB investigated and found "behaviors exhibited by Complainant that some may construe as bullying..., but was unable to substantiate repeated examples of hostile bullying and intimidating behavior from Complainant." Ultimately, no recommendation by the AIB focused on Complainant's behavior.
On September 14, 2015, Complainant met with S1, S2 and W2 for a routine morning meeting. Complainant asked to discuss recommendations to manage patient food tray issues. During the meeting, Complainant contended that S1 and S2 laughed at one of her suggestions. S1, S2 and W2 stated that they did not, but they maintained that it was clear to them that Complainant struggled to answer questions from S2 relating to the Root Cause Analysis Process. However, they each deny mocking her.
On March 21 and 22, 2016, S1 sent Complainant email messages requesting her to include her on all emails to Patient Safety Committee members. Complainant stated that the messages intimidated and demeaned her. S1 stated that she was only interested in ensuring that the Patient Safety Committee members receive appropriate assignments. Complainant did not identify any action taken against her related to this matter.
The final concern by Complainant involved her arriving early for a morning meeting. Complainant contends that as she sat in the conference room, S1 entered and upon leaving turned out the lights leaving Complainant in the dark.
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 Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged.
CONTENTIONS ON APPEAL
The Agency and Complainant submitted briefs on appeal. The Agency, among other things, reiterates its contention that it did not discriminate against Complainant, and asserts that she failed to show pretext with respect to the legitimate, non-discriminatory reasons it provided for each action taken by its employees. The Agency also asserts that the behavior complained of by the Complainant does not rise to the level of harassment because it was not severe or pervasive.
Complainant provides additional examples of matters she deems unfair in the workplace, and that the handling of the various matters was either inappropriate or incorrect.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established a prima facie cases of discrimination based on age and reprisal, we find that the Agency provided legitimate, non-discriminatory reasons for each of its actions, including the action of finding Complainant to have been insubordinate in the manner in which she addressed her immediate supervisor. Complainant, while disagreeing with the Agency, failed to prove by a preponderance of the evidence that the reasons articulated by the Agency were pretext for discrimination based on age or prior EEO activity. Agencies have "broad discretion" to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Based on a review of the facts in this matter, Complainant failed to provide any evidence to support her claim that her age was a factor in her treatment by the Agency. Complainant also failed to prove by a preponderance of the evidence that S1, S2 and S3 were aware of Complainant's prior EEO activity.
Further, we find that Complainant did not establish her hostile work environment claim. Title VII and the ADEA are not civility codes. The events about which Complainant complains regarding the way she believes she was being treated did not rise to the level of severity or pervasiveness that unreasonably interfered with her ability to work. Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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
_9/6/18_________________
Date
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
01-2017-0513
6
0120170513