Laquita H.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 13, 20160120140087 (E.E.O.C. May. 13, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laquita H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140087 Hearing No. 440-2012-00076X Agency No. 200J05562011102673 DECISION Complainant filed an appeal from the Agency’s September 17, 2013, final order 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 U.S. Equal Employment Opportunity Commission (EEOC or Commission) deems the appeal timely. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resource Manager, GS-14 at the Captain James Lovell Federal Health Care Center (FHCC) in North Chicago, Illinois. On July 21, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (Black), sex (female), and in reprisal for prior protected EEO activity when: (1) in July 2010, her supervisor (S1) made the statement to her "[y]ou speak so eloquently;" (2) on November 4, 2010, S1 commented that she was not a team player; (3) on December 15, 2010, S1 said to her, "[y]ou need to know who your supervisor is;" (4) in March 2011, S1 undermined her authority by monitoring her selection authority; (5) on March 14, 2011, S1 did not allow her to make management decisions in her department due to an ongoing internal investigation; (6) on March 16, 2011, S1 informed her that he would be watching the department closely; (7) on 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. 0120140087 2 May 10, 2011, she was issued a written counseling; and (8) on June 29, 2011, she received an email regarding her student loan repayment agreement for next year, which noted that it may not be supported. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 18, 2013, motion for a decision without a hearing and issued a decision without a hearing on August 27, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. AJ’S FINDINGS OF FACT The AJ set forth the following undisputed facts. During an Executive Steering Committee meeting, Complainant was explaining a complex situation related to her current work related project. Following her presentation S1 told the Complainant "you speak so eloquently." S1 does not deny that he made this statement but explained that Complainant had made a very thorough presentation on a very complex subject and he just was complementing her on her performance in the meeting. Complainant stated that she did not think anything about the comment other than it was a little insensitive, because in her position she was expected to speak well. However, after some time went by and other incidents took place, she decided that S1 made the comment because of her race. During her employment, Complainant was given a task to change an existing database. Complainant was instructed to make appropriate changes to the database that would provide the ability to track all recruitment that was in progress and track positions that were filled, vacant, active, or abolished. Complainant explained to S1 that the database as currently configured would not produce the results he was requesting. According to Complainant, S1 then stated that she should do it anyway because he was her supervisor and that is what he wanted. Complainant then reminded S1 that she was hired for her subject matter expertise and it would be a disservice to him if she did not explain that she could not produce the information he was requesting with the current data base. S1's request was a longstanding request and went unfulfilled for several months. It was during one of the many conversations on the subject that S1 told Complainant she was not being a team player. Complainant also stated that it was during this time that S1 also stated that she needed to remember who her supervisor was. Complainant eventually provided the data S1 requested. On March 16, 2011, S1 sent an e-mail to Complainant, and other staff entitled "Filling Vacant Positions and Filling New Positions within our Directorate." Complainant responded by stating: "as your HR Officer for the FHCC, I must ask ... are you saying that you want the "Responsibility of the Selecting Official" for the entire Directorate?" S1 responded to Complainant's e-mail by stating, "[o]verall yes, but as we discuss positions, I may select not to be involved. We need to discuss as vacant positions are announced." It was this e-mail and 0120140087 3 subsequent events that Complainant relies on to support her allegation that S1 took away her selection authority. S1 stated that sometime, possibly in February 2011, he received a complaint that Complainant was hiring relatives and personal friends from her old job, which called into question Complainant's selection practices. Based on this allegation an internal investigation was conducted into two students that Complainant hired. Also during this time frame, S1 was receiving complaints from Complainant's staff who were alleging that Complainant was creating a hostile work environment. S1 stated that as a result of all the complaints and a desire to not single out Complainant, he sent out an email on March 16, 2011, that he “consider[ed] all of [his] supervisors on the same playing field." S1 stated that at no time did he take away Complainant's or his other managers' authority to hire. S1 also stated that he was only asking to be a part of the hiring process and to have some discussion, just like any normal director or associate director would do when hiring for positions, especially when they were setting up a human resources department. S1 also stated he felt the safest thing to protect Complainant and the Agency was to stay involved with all of the departments that were under his supervision to include Human Resources (HR) and Fiscal Business Operations. Complainant alleges that S1 only took the action to limit the selection authority of female supervisors under his supervision and not with two other male supervisors. S1 testified, however, that the two males that Complaint referenced (C1 and C2) were not under his supervision and thus he had no authority to review their selection processes. Complainant’s second-line supervisor (S2) confirmed that at no time was Complainant's hiring authority taken away and the male employees in question were not under S1's authority. On April 22, 2011, S2 sent an e-mail to one of Complainant's direct reports (C3). S2 sent the e-mail inquiring as to why C3 stated in a previous telephone conversation, that she could not answer S2’s questions concerning workplace matters. C3 responded that she was following Complainant’s instructions that she run such things past Complainant (i.e., her supervisor) and provide an agreed upon response prior to speaking with him. On April 22, 2011, in response to C3’s e- mail, S2 sent an e-mail to Complainant stating that her policy needed to be discussed and that, he considers it to be inefficient and counterproductive to open communications that he requires from the HR department. In response to S2’s request, Complainant responded and stated, "CAPT, it is clear that you have a need to know. However, so do I. My employees (those who report to me) have not been providing accurate information up my chain lately and thanks to my chain's lack of inclusion of me in matters under my authority (or revocation of my authority in certain instances) this is becoming a problem because then I have to clean up the miscommunications. It appears there is a double standard in place because you expect that I discuss matters with you before sending responses up your chain. You also require me to include you on messages that you were not privy to initially. However at your direction, I will direct my staff of your wishes." Complainant uses this e-mail as an example of "the foolishness that [was] enduring from both S1 and S2. On May 10, 2011, Complainant was issued a written counseling by S1. The counseling was a result of Complainant instructing her employees to speak with her before communicating with 0120140087 4 any members of the FHCC along with several anonymous complaints from within her department. The anonymous complaints accused Complainant of showing favoritism, bullying her employees, threatening disciplinary action and intimidation. S1 had been working with Complainant on an informal level to assist her with improving her manner of communication with employees. Due to continued inappropriate communication, culminating with Complainant's policy and response to S2, S1 felt it was necessary to issue Complainant a written counseling as a corrective tool, not a disciplinary action. On June 29, 2011, after Complainant's initial EEO counseling, Complainant alleged S1 sent an email regarding the student loan repayment agreement for the next year, and commented that it may not be supported. Student loan repayment agreements are coordinated through the Veterans Integrated Service Network (VISN) office. Individuals are only able to collect one payment per fiscal year and S1 was notified that Complainant had already received it. The VISN office honored the initial agreement with Complainant and the payment was executed. A new agreement would be required to address any further payments and it was at this time Complainant left her position at the FHCC for a new position as Deputy Human Resource Office in Washington, D.C. In addition, S1 does not have any authority over payment of Complainant's student loan. Further, as evidenced by Complainant's submissions, the Agency did not have any experience in handling these types of payments and had a new and inexperienced finance officer handling Complainant's request. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine†if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material†if it has the potential to affect the outcome of the case. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The AJ concluded that Complainant failed to demonstrate that management's comments or the issuance of a written counseling amounted to an adverse action2 or that the alleged comments when considered singularly or in total established a hostile work environment that substantially affected a term, condition or privilege of employment. Moreover, the AJ noted that Complainant failed to present evidence to support the assertion that any of the Agency’s actions were motivated by Complainant’s gender, race or prior EEO activity. 2 The AJ noted that the record is devoid of evidence to suggest that management's comments or counseling harmed Complainant’s advancement opportunities or adversely impacted her chance of obtaining employment benefits or awards. 0120140087 5 We agree with the AJ’s analysis and findings and note that even assuming that Complainant presented a prima face evidence of disparate treatment the record is devoid of evidence that such alleged disparate treatment was motivated by discriminatory or retaliatory animus. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency action herein. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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). 0120140087 6 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 May 13, 2016 Date Copy with citationCopy as parenthetical citation