0120161023
03-08-2018
Meaghan F.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 2001
Meaghan F.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161023
Agency No. 20DR00002013102916
DECISION
On January 13, 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 December 16, 2015, 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.
ISSUE PRESENTED
Whether the evidence of record established that Complainant was subjected to disparate treatment or hostile workplace harassment based on race (African-American), sex (female), age (born in 1960), and/or reprisal for engaging in EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Advisor at the Agency's VA Central Office facility in Washington, D.C.
On May 3, 2014, Complainant initiated EEO counseling, and on June 14, 2013, filed an EEO complaint alleging that the Agency subjected her to disparate treatment and a discriminatory hostile work environment on the bases of race, sex, age, and/or reprisal for prior protected EEO activity as evidenced by the following events:
1. On July 20, 2012, Complainant's supervisor told her, "[W]e do not have a position for you."
2. Complainant did not timely receive her FY 2012 performance standards.
3. On October 5, 2012, a management official expressed displeasure with Complainant's job performance.
4. In October 2012, Complainant was denied attendance at the Gartner Symposium Conference.
5. On February 2, 2013, Complainant became aware that her current position (Senior Advisor Customer Advocate for Corporate IT) had been advertised on USAJOBS, under Vacancy Announcement No. VG-13-PRH-807699.
6. On February 14, 2013, Complainant was asked to serve on the committee responsible for hiring her replacement.
7. On March 25, 2013, Complainant's FY 2012 performance rating was downgraded from "Exceeds Fully Successful" to "Fully Successful."
8. On September 4, 2013, Complainant was notified of her non-selection for the position of Deputy Chief Information Officer, Service Delivery and Engineering, advertised under Vacancy Announcement No. VA-SES-13-805078-JJ.
As an initial matter, the Agency accepted for investigation all eight allegations as evidence in support of Complainant's harassment/hostile work environment claim, but dismissed all the events identified as occurring between July 2012 and February 14, 2013, as additional individually cognizable disparate treatment claims, on the grounds of untimely EEO counselor contact.
At the conclusion of its 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 (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, 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 or retaliation as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant provides no contentions on appeal.
ANALYSIS AND FINDINGS
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").
Claims Dismissed by Agency
To the extent that Complainant intended any of her allegations to be considered a separate disparate treatment claim beyond her claim of ongoing harassment, we find that the Agency properly dismissed those alleged to have occurred between July 2012 and February 14, 2013, as untimely raised. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, Complainant initiated EEO counselor contact on May 3, 2014, and the dismissed claims occurred more than 45 days prior to this contact. At the same time, the Agency correctly considered all Complainant's allegations as evidence in support of her overarching hostile work environment claim. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002).
Disparate Treatment - March 2013 Performance Evaluation and September 2013 Non-selection
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, as detailed below, the record shows that during the investigation, the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence were a pretext designed to mask discrimination.
With regard to Complainant's FY 2012 performance rating, provided to her on March 25, 2013, the record shows that as a member of the Senior Executive Service (SES), Complainant's performance rating was subject to a multi-layered review and approval process. Here, Complainant was given an "initial summary rating" of "Exceeds Fully Successful" by the Principal Deputy Secretary for OIT ("S1") (Caucasian male, born 1960), who served as her immediate supervisor. However, that initial rating was then sent for review to the Performance Review Committee (PRC), a panel appointed by the Secretary to review all the ratings given to members of the SES. There is no evidence that S1 had any involvement in the PRC. The PRC recommended lowering Complainant's rating to "Fully Successful," a recommendation adopted by the Secretary. The lowering of the rating appears to be grounded in the PRC's recommendation that the initial rating of Outstanding in performance element 5 ("Results Driven") was too high. The comment section for this element, drafted by S1, praised Complainant for "securing funding for two key previously unfunded initiative" and "improving [the Department's] relationship with the Office of Business Management."
Complainant attributed the unfavorable final outcome of her rating to discriminatory animus on the part of S1, although the record shows that he had no involvement in the deliberations of the PRC, which was where the rating was lowered. Moreover, the report of investigation contains a copy of the FY 2012 Senior Executive Performance Appraisal Closeout Memorandum issued by the Office of the Secretary. The Memorandum reveals that 44% of the Senior Executives had their initial summary ratings lowered by the PRC and the Secretary. Without more, the fact that the PRC lowered the initial rating of a significant portion of the Senior Executives, both within and outside Complainant's protected classes, lends little support to her claim of less favorable treatment because of her race, sex or age.
Complainant was also not selected for the position of Deputy Chief Information Officer, advertised on January 2, 2013. The pool of applicants for this position totaled 218, with 147, including Complainant, being assessed as meeting the basic qualifications for the position. Next, an Executive Resources Board (ERB) was convened to conduct an in-depth evaluation and ranking of the 147 candidates that eventually resulted in a list of the eight "Best Qualified Candidates" (the competitive list). Complainant was not ranked high enough to be placed on the Best Qualified Candidates list by the ERB. Two candidates from this list were recommended by the ERB to S1, who was the selecting official.
In addition, the ERB prepared a list of 12 candidates, including Complainant, who were eligible for non-competitive promotion to the position. Following interviews, the ERB referred one candidate (not Complainant) from the non-competitive list to S1. Written records of the selection process indicated that ten of the 12 non-competitive candidates, including Complainant, were not interviewed by the ERB because they claimed that "their relevant work experience is significantly less than the candidates interviewed."
S1 chose one of the ERB-recommended candidates from the competitive list. The selectee was a Hispanic male over the age of 40.
Complainant asserted that she should have been interviewed by the ERB and referred to S1 because she believed her qualifications for the position surpassed those of the selectee. However, based on our independent review of the evidence of record, Complainant has not shown that the alleged disparities in qualifications between herself and the selectee are "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [her] for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).
To the extent that Complainant again identified S1 as responsible for the discrimination, the record is clear that he did not consider her because she was not recommended to him by the ERB. There is no evidence that S1 was involved in the selection of the ERB members or in any of its deliberations.
Finally, regarding Complainant's retaliation claim, she concedes that her only prior protected activity was seeking EEO counseling for the instant complaint. The record establishes that management learned of the counseling on May 6 or 7, 2013, and the final selection decision was made on May 8, 2013. However, there is absolutely no evidence that the members of the ERB knew of Complainant's protected activity when it recommended three candidates to S1, which did not include Complainant. S1 made his final selection from the ERB's recommendations.
In sum, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by the Agency for the lowering of her FY 2012 performance rating and her non-selection to the position of Deputy Chief Information Officer were pretext for discrimination or unlawful retaliation.
Hostile Work Environment
To establish her claim of harassment, 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).
In other words, 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 - in this case, her race, sex or age.2 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant has failed prove motive as there is no evidence that her race, sex or age played a role in any of the events supporting her hostile work environment claim.
Regarding allegations 7 and 8, we have already concluded earlier in this decision that no discrimination or unlawful retaliation was established. In addition, S1 has denied making the unfavorable remarks referenced in allegations 1, or influencing the management official in allegation 3, and beyond Complainant's bare assertions, there is no evidence to support a conclusion that these incidents occurred as alleged. Moreover, there is no evidence connecting these remarks with animus towards Complainant's protected classes.
For allegation 2, S1 averred that the FY 2012 performance standards for all Senior Executives were not generally finalized until mid-way through the performance period, an assertion that Complainant herself confirmed. There is no evidence that Complainant was treated differently in this regard from other similarly situated employees.
In allegation 4, concerning the decision to deny her attendance at the Gartner symposium, the record established that although she had been approved to attend the conference in prior years, a new rule had been implemented in OIT in 2012, requiring all employees to establish a need for the training. Complainant was not able to establish a need for her attendance at the conference.
Finally, in allegations 5 and 6, Complainant asserted that her current position was being advertised and she was asked to serve on the selection committee in order to harass her. However, the record shows that S1 and his immediate superior ("S2") had decided to create a new position for Complainant. The new position was a promotion. Unfortunately, S1 was under the impression that S2 had explained this development to Complainant. However, he had not done so. While Complainant clearly drew the conclusion that she was being replaced, when the confusion was cleared up, Complainant was promoted into a higher-level positon (Deputy Chief Technology Officer), which included supervising her replacement in Complainant's old position.
In sum, Complainant has failed to prove that the responsible management officials in any of the incidents she proffered to support her hostile work environment claim were motivated in any way by her race, sex, age or by retaliatory animus.
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
___3/8/18_______________
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 Retaliation as a basis for the alleged harassment will no longer be considered because Complainant only alleged retaliatory animus as a factor in her non-selection for the Deputy Chief Information Officer position, and we have already concluded she did not prove this claim. She had no protected activity prior to May 2013.
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