0120172796
07-25-2018
Leota F.,1 Complainant, v. Peter O'Rourke, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leota F.,1
Complainant,
v.
Peter O'Rourke,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172796
Agency No. 2003-0520-2016104361
DECISION
On August 16, 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 July 17, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to discriminatory harassment as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's FAD erred in finding that Complainant was not subjected to discriminatory harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Medical Support Assistant (MSA), GS-7 at the Agency's Gulf Coast Veterans System in Biloxi, Mississippi. Complainant alleged that she was subjected to discriminatory harassment when on May 11, 2016, her second-line supervisor (S2), asked her to provide coverage for the Women's Health Clinic (WHC). S2 indicated that Complainant refused to help by responding, "that wasn't her job."
On June 23, 2016, S2 instructed Complainant's first-line supervisor (S1), to issue Complainant a written counseling for her refusal to provide administrative coverage for the WHC. Complainant was told that her conduct amounted to insubordination. The incident was documented in a Report of Contact (ROC). Complainant denied that she was insubordinate. Complainant indicated that she never informed S2 that she would not cover the WHC. Complainant explained that she told S2 that S1 had previously instructed her to cover another clinic at the same time.
Complainant argued that the issuance of the written counseling was discriminatory for several reasons. First, she claimed that S2 called her a "troublemaker," stated that she was "too pretty to work," asked her to put away a Bible that was on her desk because it might offend others, would not say "good morning" to her, and stated, "One minute she is Black, the other she is Native-American," referring to Complainant. Complainant also noted that S2 referred to the MSA she sent to provide coverage for the WHC in Complainant's place as an "African-American girl." Thus, Complainant felt that S2 had a "problem" with her or African-American women, in general. S2 denied stating that Complainant was "too pretty to work" and that she did not say "good morning" to everyone. Moreover, she indicated that a white MSA was sent to cover the WHC after Complainant refused.
Further, Complainant maintained that the issuance of the written counseling amounted to a "fundamental denial of procedural due process" because management did not afford her the opportunity to respond to the ROC, to give her side of the story. Third, Complainant indicated that management was aware of her prior EEO activity.
On August 23, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American and Native American) and reprisal for prior protected EEO activity when:
1. On June 23, 2016, it subjected her to disparate treatment by issuing her a written counseling.
2. Between May 11, 2016 and June 23, 2016, the Agency subjected her to three incidents of hostile environment harassment.
After 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 the FAD pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that after Complainant refused to help out at the WHC she was issued a written counseling for insubordination. To show pretext, Complainant denied that she was insubordinate. Complainant insisted that she never informed S2 that she would not cover the WHC. According to Complainant, she explained to S2 that S1 had previously instructed her to cover another clinic at the same time. Moreover, she explained that an email had been issued that coverage for the WHC was not needed. S2 indicated that she had no knowledge of the email and while Complainant was able to produce the email, the email was dated April 27, 2016 and did not indicate that it was for more than that day.
The Agency did not find Complainant's explanation credible as she provided no evidence that despite her disagreement with S2, she complied with her directive to provide coverage for the WHC. In fact, Complainant did not deny that she failed to comply with this directive; she merely explained the reasons for her failure to comply. Thus, the Agency found that Complainant's explanation supported its contention that she was insubordinate.
The Agency also maintained that throughout S1's testimony, S1 did not indicate that she had instructed Complainant to cover another clinic. S1 also testified that she had assigned other MSAs the task of covering the WHC. S1 indicated that she had no reason to believe that S2 instructed her to issue Complainant the written counseling based on Complainant's race, prior EEO activity, or differential treatment, in general.
The Agency also found that Complainant did not show that there were other reasons that the Agency issued her the ROC. Complainant alleged that S2 called her a "troublemaker," stated that she was "too pretty to work," asked her to put away a Bible that was on her desk because it might offend others, would not say "good morning" to her, and stated, "One minute she is Black, the other she is Native-American," referring to Complainant. Complainant also noted that S2 referred to the MSA she sent to provide coverage for the WHC in Complainant's place as an "African-American girl." The record showed however, that a white woman was sent in Complainant's place. Complainant felt that S2 had a "problem" with her or African-American women, in general. The Agency maintained however that Complainant did not show that these incidents had anything to do with the reason that she was issued a ROC. Accordingly, the FAD found that Complainant did not demonstrate that the Agency's nondiscriminatory reasons were pretext for discrimination.
With respect to Complainant's harassment claim, the Agency maintained that Complainant failed to show that any of the conduct was based on membership in either of her protected classes, and that the conduct was not sufficiently severe or pervasive to affect a term or condition of her employment. The Agency found that Complainant did not prove her case.
CONTENTIONS ON APPEAL
On appeal, Complainant contends among other things, that there are material facts at issue. Complainant argues that her treatment by management was based on her protected bases. She maintains that S2 admitted that she had questioned her ethnicity. Complainant also maintains that her third-line supervisor (S3), charged her with Absent Without Leave (AWOL) for the time that she did not report to the WHC. S1 however, allowed her to take leave instead of being charged with AWOL. Complainant asserts that management was aware that the WHC needed coverage the day before they asked her. Complainant indicates that S2 has a bias against her which shows when she labeled Complainant a troublemaker and noted that she had various EEO complaints.
In response, the Agency requests that the FAD be affirmed. The Agency notes that Complainant simply reiterates her arguments and provides no evidence that the Agency's nondiscriminatory reasons were pretext for discrimination. She has also not shown that the incidents complained of where related to her protected bases or were severe or pervasive enough to establish a hostile work environment. The Agency also points out that Complainant requested a FAD and not a hearing.
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. 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 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 even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the evidence showed that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a ROC because she did not provide coverage for the WHC after she was told to do so. While Complainant maintained that she did not say that "it wasn't her job," she did refuse to go to the WHC to provide coverage. We find that Complainant has not demonstrated that discriminatory animus was involved with the issuance of a written counseling. We find that she did not show that the Agency's reasons were pretext for discrimination.
With respect to Complainant's claims of harassment, specifically that she was referred to as a troublemaker, told she thought she was too pretty to work, that she was asked to put away a Bible, and that S2 did not say good morning to her, we find that Complainant did not show that the incidents were related to her protected bases. She also claimed that another woman, a black woman was sent to cover WHC but the record showed that a white woman provided coverage. Finally, she maintained that she was denied due process when she was not allowed to respond to the ROC. Again, however, she provided no evidence which showed that her not being able to tell her side of the story was done because of discriminatory animus.
With respect to Complainant's contentions on appeal, we find that Complainant has reiterated the claims that were addressed in the FAD, we find that other than her conclusory statements she has not demonstrated that discrimination or harassment were involved here. With respect to comments allegedly made about her EEO activity, we note the lack of corroborating evidence. 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.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination 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). 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
_7/25/18_________________
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.
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