Marguerite W.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 7, 2016

0120142566 (E.E.O.C. Jul. 7, 2016)

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

Marguerite W.,1
Complainant,

v.

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

Appeal No. 0120142566

Hearing No. 520-2014-00236X

Agency No. 200H-0561-2012103386

DECISION

The Commission accepts Complainant’s appeal from the Agency’s June 18, 2014 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 Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical
Administrative Service Supervisor at the Agency’s VA New Jersey Healthcare System facility
in East Orange, New Jersey. On June 4, 2012, Complainant alleges that the Assistant Chief of
Medical Administrative Services, her first-level supervisor (S1), began scrutinizing her work
and demanded that she increase her productivity. Complainant claims that S1 required her to
complete several different reports by August 1, 2012, even though she had always turned in
her reports on time. Additionally, Complainant alleges that S1 met with her to discuss
Performance Standards on July 7, 2012, and provided her a revised position description which
stated that all reports were to be generated in a timely manner.

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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In July 2012, Complainant’s subordinate employee (E1) was detailed to the File Room. On
July 29, 2012, Complainant avers that S1 accused her of not notifying or consulting with the
File Room Supervisor regarding E1’s time and leave, when she actually had done so.
Complainant further claims that the File room Supervisor approved of E1’s leave. In addition,
Complainant alleges that S1 blamed her for another employee’s (E2) inability to meet her work
productivity standards because she was helping Complainant with reports.

On August 27, 2012, Complainant claims that S1 and her second-level supervisor (S2) met
with her and she explained to them that her job did not consist of just sitting at her desk
answering calls. Complainant told S1 and S2 that she would sometimes need to go to Telecom
or the warehouse to keep her unit running. Complainant was instructed to let S1 know when
she leaves and returns to the office. Further, S1 informed Complainant that she would need to
attend his daily meetings.

On August 29, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, the Assistant
Chief (S1) demanding that she increase her productivity; S1 began scrutinizing her work and
demanded that all her reports be submitted when due; S1 “falsely” accused her about a “time
and leave” matter without consulting with another supervisor; the S1 questioned her about a
decision she had made; and S1 informed Complainant that she would be required to call when
she leaves and returns to her office and she would be required to participate in his daily
meeting.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on June 5, 2014. In her decision, the AJ determined that the
alleged incidents were not sufficiently severe or pervasive to establish a hostile work
environment. As a result, the AJ found that Complainant had not been subjected to a
retaliatory hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

2 The Agency dismissed Complainant’s sex-based hostile work environment claim for failure to
state a claim. Complainant raised no challenges to the Agency’s dismissal while the matter
was before the AJ or on appeal; therefore, the Commission will not address that claim in this
decision.
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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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her prior protected EEO activity. Only
if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her prior protected
EEO activity, she was retaliated against and subjected to a hostile work environment as
evidenced by multiple incidents. Construing the evidence in the light most favorable to
Complainant, the Commission agrees with the AJ that Complainant has not shown she was
subjected to a hostile work environment. The record reflects that the alleged incidents were
more likely the result of routine supervision, personality conflicts, and general workplace
disputes and tribulations. The Commission notes that Title VII is not a civility code. Rather,
it forbids “only behavior so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
retaliatory animus. For example, S1 explained that he did not demand that Complainant
increase her productivity; rather, he required that her reports be submitted timely. ROI, at
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109. S1 denied scrutinizing Complainant’s work more than any other supervisor or manager’s
work. Id. With respect to the “time and leave” issues with E1, S1 affirmed that the file room
supervisor had complained to him that she was not being informed of E1’s status and he simply
advised Complainant to inform the file room supervisor of when E1 was not going to be at
work since Complainant was still responsible for her time and leave. Id. at 105. Regarding
E2’s work productivity, S1 stated that E2 consistently failed to meet standards on a daily,
weekly, and monthly basis due to Complainant assigning her to complete reports of the
section’s individual performance outcomes for S1’s review. Id. S1 explained that this resulted
in E2 being treated differently than her co-workers. S1 emphasized that he did not object to
E2 assisting Complainant; however, it could not be at the expense of unequal treatment as
compared to other employees. Id. at 105-06.

Finally, S1 affirmed that on numerous occasions, neither he nor Complainant’s staff could
locate Complainant for approximately four hours. ROI, at 110-11. As a result, he requested
that Complainant notify him when she leaves and returns to the office. S1 noted that he had
asked Complainant to participate in the daily meetings with her peers to discuss daily
operations, leave and attendance issues, and any performance problems in her area. Id. at 110.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for reprisal.
As a result, the Commission finds no basis to disturb the AJ's summary judgment decision
finding that Complainant was not subjected to reprisal or a hostile work environment as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge’s issuance summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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:

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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).

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
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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

July 7, 2016
Date