Roxana Y.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

2019002188 (E.E.O.C. Aug. 14, 2019)

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

Roxana Y.,1
Complainant,

v.

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

Appeal No. 2019002188

Hearing No. 550-2018-00207X

Agency No. 200P-0648-2017102645

DECISION

On April 3, 2019, 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
March 13, 2019 final decision concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Program Support Assistant at the Agency’s
Portland VA Healthcare System facility in Vancouver, Washington.

Believing that the Administrative Officer (AO) of Facilities Management Services (FMS), her
first-line supervisor, was subjecting her to discriminatory harassment, Complainant filed an EEO
complaint on August 1, 2017. The complaint, based upon Complainant’s disability (Multiple

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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Sclerosis, Post-Traumatic Stress Disorder, and Major Depression) and prior protected EEO
activity, raised the events which she identified as follows2:

From April 17, 2017 and ongoing

1. AO blames me for her mistakes such as not completing Complainant’s
May summary performance.

2. AO does not provide coverage with other staff on Complainant’s days off;
and,

3. AO constantly harasses her about her leave requests by questioning the
type taken, method and timing requested, and the reason behind the
request.

After an 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 the request. The record reflects that Complainant, who was appearing
pro se at that time, emailed the AJ days before the initial status conference. Specifically,
Complainant stated “I would like to switch my decision . . . to the FAD option since we have not
started the administrative hearing yet.” The next day, the AJ replied: “To clarify, you would like
to withdraw you request for a hearing and request a Final Agency Decision instead? If so, there
is no other paperwork required. Unless I hear from you, I will issue the Notice of Dismissal and
direct the Agency to issue its FAD.”

Days later, on May 15, 2018, the AJ issued an “Acknowledgment of Withdrawal. Order
Dismissing Complaint” stating: “As the Complainant in the above-captioned matter has
withdrawn her Complaint, I am forwarding a copy of the withdrawal request to the Agency and
ending the EEO processing of this charge.”

Approximately three months later, on August 7, 2018, Complainant notified the AJ that “to date
the Agency hasn’t even acknowledge[d] receipt for a FAD” and wondered whether she could
reinstate her hearing request. The AJ’s inquiry established that the Agency’s Office of
Employment Discrimination and Complaint Adjudication had received the request and was in the
processing of producing a decision. Upon learning this matter, “that the FAD request has been

2 The complaint also alleged AO made changes to her telework agreement, which was processed
as a separate complaint (Case No. 200P06482011103963). The matter is currently pending
before the Commission and has been assigned EEOC Appeal No. 2019002187.

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received, not fallen in the cracks”, Complainant informed the AJ that she would continue to wait
for an agency decision.3

On February 21, 2019, Complainant’s attorney filed a motion with the Commission seeking
sanctions for the Agency’s failure to issue a final decision in accordance with the AJ’s order.
Complainant argued that a timely issued decision should have been issued by July 16, 2018, and
the Agency’s inexplicable failure to do so has irreparably harmed her and affected the integrity
of the EEO process.

On March 13, 2019, the Agency issued a final decision finding no discrimination. Complainant
appealed the decision to the Commission.

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”).

Harassment

In the instant case, Complainant contends that AO subjected her to discriminatory harassment.
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their 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

3 The Commission finds that the AJ’s imprecise language in her May 15, 2018 order, may have
reasonably led the Agency to believe that Complainant had withdrawn her complaint, rather than
simply her request for a hearing. Further, the emails exchanged between the AJ and
Complainant reflect that the AJ clearly understood the desire for a decision. Unfortunately, the
AJ’s Order appears to have contributed to the undue delay in Complainant’s receipt of a decision
on her complaint.
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conditions of [complainant's] employment and create an abusive working environment." Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

In its decision, the Agency reasoned that Complainant failed to establish that the alleged conduct
by AO was sufficiently severe or pervasive to constitute a hostile work environment. With
respect to claim (1), AO stated she did not recall instances where she blamed Complainant for
her mistakes. As for the summary rating, AO sated she issued Complainant an “Outstanding”.
Regarding coverage, AO explained that it was provided based on available personnel. Regarding
Complainant’s leave requests, the Chief of FMS explained that AO has a Human Resources
background and therefore is “more strict” regarding properly documenting absences that the
prior AO. The Agency reasoned that the interactions between AO and Complainant were within
the scope of AO’s supervisory duties and did not rise to the level of harassment. Further, the
Agency concluded that Complainant did not present any evidence connecting AO’s actions with
her disabilities or prior EEO activity.

On appeal, Complainant provides an elaboration of her claim. Complainant contends that on the
days she was at the Vancouver office, one extra employee was assigned to the office. But, no
Support Specialists were assigned on the days she was off or teleworking, which Complainant
argues “magnify[ed] [her] absence on those days.” Further, Complainant contends another
employee stated that he would have to do Complainant’s job duties on those days. When
Complainant took leave in December 2016, and AO did not assign someone to the office,
Complainant argues “this gave the appearance that [she] was not performing her duties . . . .”
She does acknowledge, however, after she complained of the lack of support that a Support
Specialist was assigned for half-days when she was out of the office. These details reflect a
disagreement in how to manage the office. Further, Complainant’s concerns over the
appearances or impressions resulting from the lack of coverage, are insufficient to render her an
“aggrieved” employee. Regarding leave, Complainant describes an incident wherein AO
allegedly questioned her truthfulness. However, she does not allege that AO discriminatorily
denied her leave request.

The Commission agrees with the Agency that the alleged events were not sufficiently severe or
pervasive to create an abusive work environment. AO’s alleged actions were those within the
purview of her supervisory authority and do not rise to the level of unreasonably interfering with
the work environment. Moreover, Complainant has not met her burden in showing a nexus
between her protected bases and the AO’s actions. While Complainant challenges AO’s
credibility, particularly noting AO’s denied knowledge of Complainant’s prior EEO activity
despite her awareness of the settlement agreement, Complainant has failed to her prior activity,
or disabilities, motivated AO’s actions.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.

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
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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

August 14, 2019
Date