Maricela P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 21, 2016

0120141945 (E.E.O.C. Oct. 21, 2016)

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

Maricela P.,1
Complainant,

v.

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

Appeal No. 0120141945

Agency No. 200H-0528-2013101153

DECISION

The Commission accepts Complainant’s appeal from the March 14, 2014 final Agency decision
(FAD) 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse at the Agency’s Medical Center in Buffalo, New York. Complainant was out of the
office in February and March 2012, due to a surgical procedure. Complainant claims that
when she returned to work, her supervisor (S1) began criticizing her work. On September 25,
2012, S1 informed Complainant that she was not meeting two critical elements of her
performance plan and placed Complainant on a performance improvement plan (PIP). Despite
weekly PIP meetings, Complainant alleges that S1 provided her no constructive feedback
during the sessions.

On October 25, 2012, Complainant met with her Union Representative to discuss her concerns
about S1. During the meeting, Complainant claims that the Union Representative informed her
that S1 told her that she thought Complainant was a bully. Complainant asserts that she later

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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asked S1 during a weekly PIP meeting if she believed that she was a bully, and S1 indicated
that she did.

On November 27, 2012 and December 21, 2012, Complainant alleges that S1 searched her
desk after she left for the day. Complainant explains that she shares an office with a co-
worker who worked a later shift and the co-worker informed her that S1 went through her desk
on a number of occasions. Additionally, on December 12, 2012, Complainant claims that S1
assigned a co-worker (CW1) to monitor her “every move.” Complainant contends that CW1
would check the total number of appointments she made per day by entering the computer
system and looking through her work.

In December 2012, Complainant alleges that S1 blamed her for problems with the patient
schedule. Complainant states that it was confusing at the time because doctors were changing
their schedules without telling her. Complainant claims that despite this confusion, S1 told her
it was her fault there were problems on the patient schedule. Complainant alleges that S1
assigned nurses to work in the scheduling office with her. Complainant claims that these
nurses made mistakes that she would have to correct, but S1 did not hold them to the same
standards as she did for Complainant. On December 3, 2012, Complainant claims that S1
allowed a co-worker (CW2) to transfer to another area of the facility. Complainant alleges that
S1 did not allow her the same opportunity. Furthermore, on December 26, 2012, Complainant
claims that S1 allowed other employees to leave the office early without charging them leave,
but did not offer her the same opportunity.

Complainant went out on stress leave beginning on December 27, 2012. Complainant alleges
that S1 began sending her letters regarding her requests for sick leave. Complainant claims
that the Office of Human Resources had advised S1 not to contact her. Finally, Complainant
alleges that from February 1, 2013 through March 11, 2013, S1 held her hard-copy W-2 form
in the office instead of sending it to her home while she was off duty.

On April 11, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the basis of race
(African-American) as evidenced by multiple incidents including, inter alia, her supervisor
(S1) placed her on a performance improvement plan (PIP); S1 did not give her constructive
improvement plans for her to succeed in her position; S1 told her she was a bully and went
through her desk after she had left for the day; S1 assigned a co-worker (CW1) to monitor her
“every move;” S1 blamed her for problems in the patient schedule; S1 gave a co-worker
(CW2) an opportunity to transfer, but she was not given the same opportunity; S1 did not offer
her 59 minutes of authorized absence; S1 sent her various letters about her sick leave requests;
and S1 held her W-2 form in the office instead of sending it to her home while she was off
duty.

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). When Complainant did not
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respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Additionally, the Agency found that there
was no evidence that the conduct at issue was based on discriminatory animus. As a result, the
Agency found that Complainant had not been subjected to discrimination or a hostile work
environment as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

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 a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her race, management subjected her to a hostile work
environment based on several incidents where Agency officials took actions that seemed
adverse or disruptive to her. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory animus
played a role in any of the Agency's actions. The record reflects that the alleged incidents
were more likely the result of routine supervision, managerial discipline, and general
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workplace disputes and tribulations. For example, S1 explained that she placed Complainant
on a PIP after she discovered there were numerous issues with regard to the schedule. ROI, at
199. S1 noted that the unit was receiving complaints from doctors about the haphazard
management of the schedule. Id. at 201. After attempting on several occasions to solve the
problem, S1 decided to place Complainant on a PIP based on her unacceptable performance in
the critical elements of “Nursing Care” and “Documentation/Reporting. Id. at 201, 244-46.
S1 denied that she failed to give Complainant constructive feedback. The record contains
weekly memoranda S1 provided Complainant describing what was discussed during their
weekly PIP meetings and areas where Complainant needed to improve. Id. at 387-94.

S1 denied telling Complainant to her face that she was a bully, but she acknowledged that she
called Complainant a bully to the Union Representative while discussing Complainant’s
behavior towards co-workers. ROI, at 202. With respect to her desk, S1 explained that
Complainant did not have a personal desk; rather, she sat at a desk in the scheduling room
which was also used by other people. ROI, at 202. S1 denied going through the desk to check
on Complainant’s work; rather, she stated that she often goes into the scheduling room to
perform work after hours and obtain forms. Id. Regarding CW1 “monitoring” her, S1 noted
that CW1 would not have had supervisory access on the computer to look up Complainant’s
work. Id. S1 confirmed that CW1 was only there to assist Complainant. Id.

Regarding her claim that others were not held to the same standards, S1 affirmed that she
spoke to Complainant and her co-worker about the schedule since she could not understand
why seasoned schedulers were struggling with the schedule. Id. at 203. S1 noted that it was
not unusual for doctors to change their schedule; however, they always provided notice. Id.
S1 had Complainant review the schedule every Monday to look for any changes, but the
schedule would still be disorganized. Id. Complainant’s second-level supervisor (S2)
corroborated Complainant’s performance deficiencies. S2 stated that there were employees
who made mistakes, but Complainant was experiencing repeated mistakes and did not show
improvement. Id. at 213.

As to CW2’s transfer, S1 stressed that CW2 applied for a position in another area and was
accepted for the position. ROI, at 204. S1 noted that she did not have the power to transfer
employees. Id. S2 confirmed that CW2 was not administratively transferred; rather, she was
the successful bidder on another position. Id. at 213. Regarding the December 26, 2012
authorized absence claim, S1 affirmed that attendance records for that day do not indicate
anyone left early for the day. Id. at 205. Moreover, S1 stated that only the Director could
grant anyone that much time off as an authorized absence. Id. With respect to the letters
related to her leave, S1 affirmed that she was advised by the Office of Human Resources to
follow up with Complainant because her leave forms had not been properly completed by her
doctors. Id. S1 noted that she had not been told by Human Resources to not contact
Complainant at that point, but was advised in March 2013 that Complainant did not want S1 to
contact her. Id. S1 emphasized that the only letters she sent Complainant were ones that
Human Resources had asked her to send. Id.

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Regarding Complainant’s W-2 Form, S1 affirmed that Complainant was on leave when they
became available and she did not know when Complainant would be returning. ROI, at 206.
Complainant had not told S1 what she wanted her to do with her W-2 Form; therefore, she
sent it by certified mail with other documents from Human Resources. Id. The envelope was
returned when Complainant refused the delivery. Id. In March 2012, Complainant contacted
the Agency about her W-2 Form, and it was still in the unopened envelope which S1 took to
Human Resources. Id. S1 noted that Complainant could have obtained the form online. Id.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for discrimination. As a result, the Commission finds that
Complainant was not subjected to discrimination 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 decision because the preponderance of the evidence of record 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:

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.
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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

October 21, 2016
Date