Stella K.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0120160301 (E.E.O.C. Mar. 7, 2018)

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

Stella K.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.

Appeal No. 0120160301

Hearing No. 570-2014-00610X

Agency No. 20DR-0040-2013101496

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the September 11, 2015 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 Program Specialist,
GS-0301-13, with the National Cemetery Administration (NCA) in the Veterans Cemetery
Grants Service (VCGS) in Washington, D.C. In June 2012, Complainant raised concerns with
her second-level supervisor (S2) about her workload and her new supervisor’s (S1-1) managerial
style. Additionally, Complainant inquired about the possibility of a detail assignment. S2 asked
that Complainant allow some time for S1-1 to acclimate to the new environment and
personalities. S2 met with S1-1 and S1-1 agreed to explore ways to improve their working
relationship.

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 October 2012, S1-1 met with Complainant to discuss her concerns regarding her workload.
S1-1 explained to Complainant that he intended to remove some of her duties and responsibilities
and distribute the work to subordinate employees. S1-1 found that it was difficult to cross-train
employees and redistribute the work due to resistance from Complainant. S1-1 ultimately
restored the duties back to Complainant a few weeks later.

S1-1 determined that it was necessary to hire an additional full-time employee to assist with
cross-training, alternate assignments, and to transition some of the workload from Complainant.
As a result, S1-1 hired a Program Analyst (CW-1) around November 2012. In January 2013,
Complainant met with S1-1 and he informed her that he was reassigning her duty of Customer
Support Liaison to state employees to CW-1. Complainant remained as an alternate for the duty.
Complainant’s Fiscal Year 2013 performance plan reflected this change, and Complainant signed
it without raising any concerns. Additionally, Complainant claimed that S1-1 stated to her in
January 2013, “if you are waiting around for a GS-14 position, you should move on; it doesn’t
exist on the organizational chart.”

On January 17, 2013, S1-1 had tasked Complainant with training CW-1 on the Agency’s
database maintenance. Complainant informed S1-1 that there was no database, only Microsoft
Excel. Complainant claimed that S1-1 waited impatiently by her desk while she was on a
telephone call. Complainant stated that she ended the call prematurely and met with S1-1 in a
conference room to discuss the database and her performance plan. Complainant had deleted
Microsoft Access files on her computer and transferred the information into Microsoft Excel.
Complainant claimed that she deleted Access because CW-1 had informed her that he was not
familiar with the program and since she would be sharing information with him, it would be
easier to use a format he knew. S1-1 advised Complainant that her action was a major change in
Agency business operations, that he had not authorized her to do that, and that he may have to
contact the Office of Information Technology to retrieve the files. Complainant alleged that
during this discussion, S1-1 raised his voice at her and spoke to her in a rude and threatening
manner. In addition, Complainant claimed that S1-1 told her that her position description
required her to maintain an Access database, but Complainant stated that it did not clearly dictate
what database was to be used.

On April 2, 2013, Complainant attended a staff meeting. Complainant claimed that during this
meeting, S1-1 became aggressive toward her while discussing how to avoid a non-compliance
issue in the future. Following the meeting, Complainant met with the EEO Manager. The EEO
Manager recommended to S1-1 that Complainant be temporarily relocated to the Central Office.
Complainant was then temporarily relocated to the Central Office for three days while a full
mediation session was set up. Complainant returned to VCGS the next week while S1-1 was on
travel. On April 15, 2013, S1-1 approved a full 90-day developmental detail assignment to the
Central Office for Complainant.

Prior to returning to VCGS, Complainant emailed the EEO Manager to discuss her concerns
about returning. The EEO Manager advised Complainant to email S1-1 about her concerns.
Complainant emailed S1-1 and made numerous requests. S1-1 went on an extended detail
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assignment in May 2013. Complainant received no response to the email, and she followed up
with the EEO Manager. In her email to the EEO Manager, Complainant referenced “safety
concerns” and that she could not “ignore any matter concerning [her] safety.” S2 subsequently
informed Complainant that a fact-finding investigation would be conducted because she had
expressed safety concerns. The fact-finding investigation ultimately found that there was no
evidence to substantiate an unsafe work environment.

Complainant returned to VCGS on August 6, 2013, and met with her new supervisor (S1-2),
CW-1, and another co-worker. During this meeting, Complainant was given a 10-page
document entitled “Status Report of Temporary Duties” that had been prepared by CW-1 to
assist her transition back. The document provided Complainant with information and status
updates on the duties that had been performed by CW-1 and others while she was on detail.
Additionally, Complainant was informed about a new requirement regarding a process used in
the Burial Operation Support System, which was Complainant’s responsibility. All new users of
the system were required to submit an OF-306 to receive access. Complainant believed that her
performance standards were changed as a result. Additionally, Complainant claimed that the
duty of assembling the priority list was removed from her responsibilities because the report
indicated that CW-1 had already prepared the list. Complainant believed that she was excluded
from this duty to minimize her role so that CW-1 would get credit on his performance appraisal.

In late-September 2013, S1-2 received an email from the Acting Principal Deputy
Undersecretary for Memorial Affairs advising him that they would not be able to make the grant
award to the cemetery in Guam that fiscal year because they were not registered in the system.
This would result in the funds being carried over into Fiscal Year 2014. S1-2 emailed
Complainant about this matter on October 2, 2013, and she advised him that the two grants had
been obligated on September 30, 2013, before the end of the fiscal year. Complainant believed
that S1-2 should have taken the responsibility in ensuring the information was accurate before
sending her an “accusatory” email. Further, Complainant alleged that she now had to undertake
the extra work of contacting financial and budget management officials to ensure a similar issue
did not occur in the future and she believed management was waiting for her to make a mistake
to admonish her.

On April 25, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (African-
American), sex (female), and in reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia, her supervisor removed duties from her; her supervisor
made a comment “if you are waiting around for a GS-14 position, you should move on; it doesn’t
exist on the organizational chart;” her supervisor was rude, threatening and raised his voice and
changed her performance plan adding that she must maintain a knowledge of “Access database;”
she was temporarily relocated to the Central Office for three days and then for 90 days; she was
informed a fact-finding investigation would take place surrounding allegations she never made
concerning her safety; after returning from the detail assignment, she was informed that the
priority list duty was removed and she was given new performance standards she must follow
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which she believed was a ploy to make her performance appear substandard; and she was falsely
accused of an oversight in performing her duties relating to fiscal responsibilities.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew
her request. Consequently, 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. Further, the Agency found that there was no
evidence that the alleged conduct was based on discriminatory or retaliatory animus. For
example, as to the removal of her duties in October 2012 and January 2013, Complainant
admitted that she requested relief from some of her duties, specifically training and timekeeping,
which she maintained should have been performed by subordinate employees. S1-1 explained
that Complainant had communicated to him that she had too much work on her plate and that she
was getting “burnt out.” S1-1 affirmed that he wanted to cross-train others to assist with
Complainant’s duties; however, she made it clear that she did not want others to claim credit for
her work. S1-1 stated that CW-1 was hired to alleviate some of Complainant’s duties.
Complainant complained, however, when S1-1 removed her duty of Customer Support Liaison
with state employees that should have been performed by someone of her grade level instead of
an individual with a lower grade level. S1-1 affirmed that CW-1 was specifically reassigned the
duty of Customer Support Liaison, with Complainant as the alternate, because it was particularly
stressful. S1-1 noted that this change was reflected in Complainant’s Fiscal Year 2013
Performance Plan, which she signed.

Regarding S1-1’s comment about a GS-14 position, S1-1 confirmed that he told Complainant
that there was no GS-14 position available in the organization. Complainant told S1-1 that she
wanted to be promoted to the Deputy Director position; however, S1-1 stated that he told her that
the position had not been approved and that he had no plans at the time to pursue that position.

With respect to the Access database, S1-1 denied that he acted unprofessionally toward
Complainant and explained that he asked Complainant to cross-train CW-1 on database
maintenance. Complainant responded to him that there was no database, only Excel. S1-1 stated
that he met with Complainant to obtain clarification and she told him that she had deleted the
Access files. S1-1 advised Complainant that this was a major change in the business operation
and that he had never approved this action. S1-1 believed that Complainant’s duty to maintain
the Access database was outlined in her performance plan and pointed out that Access had been
used to maintain historical and critical grant file data for years. S1-1 affirmed that he was very
concerned that deleting the Access database was critical and that the business operation would be
negatively impacted by Complainant deleting the database. S1-1 explained that Complainant
was the only Agency employee that maintained the database or even knew how to maintain it.
S1-1 denied being rude or threatening Complainant regarding the matter.

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Regarding Complainant’s temporary detail to the Central Office in April 2013, S1-1 stated that
he and Complainant had had discussions about Complainant’s failure to meet deadlines on
several projects. During a staff meeting, Complainant became frustrated and later reported to the
EEO Manager that S1-1 was “aggressive” with her during the meeting. The EEO Manager
recommended that Complainant be temporarily relocated to the Central Office while a full
mediation was set up to address Complainant’s concerns about S1-1. Complainant returned to
the VCGS a few days later.

As to her full detail assignment to the Central Office beginning April 15, 2013, S1-1 maintained
that Complainant herself requested this detail, for development purposes. S1-1 stated that
Complainant told him during her performance appraisal meeting on November 14, 2012, that she
had been at VCGS for six years and was seeking a new challenge. At that time, S1-1 told
Complainant that they needed to focus on the cross-training and the new specialist, but that once
that was secure, she could pursue a detail. S1-1 confirmed that he later authorized the detail
when Complainant requested it.

With respect to the fact-finding investigation, Complainant met with the EEO Manager to
discuss her concerns about returning to the VCGS near the end of her detail assignment.
Complainant sent S1-1 an email making several requests including relocation of her cubicle and
one day of telework per pay period. S1-1 did not respond to the email and Complainant emailed
the EEO Manager expressing concerns for her safety. Based on Complainant’s safety concerns,
S2 informed Complainant that a fact-finding investigation would be conducted. Complainant
spoke with the fact-finding investigator, but maintained that her requests were never addressed.
Nonetheless, Complainant admitted that she was not required to meet or work with S1-1 because
he had been placed in a detail assignment to Philadelphia since May 2013.

Regarding her new performance standards, S1-2 denied that Complainant’s performance
standards were ever changed. S1-2 explained that when Complainant returned from her
developmental detail to the Central Office, he had the two employees who had been covering her
duties while she was out meet with her. The intent of that meeting was to integrate Complainant
back into the team and to transition her duties and responsibilities back to her. Further, S1-2
affirmed that he had CW-1 prepare a report for Complainant upon her return from the detail
assignment to provide Complainant with information and the current status of duties that he and
others had been performing while she was out. Additionally, S1-2 explained that there was a
new requirement that came in while Complainant was on detail regarding a process to be used in
the Burial Operation Support System (BOSS). All new users of BOSS were now required to
complete and submit an OF-306 form in order to receive BOSS access. S1-2 stated that the OF-
306 requirement was a new area, but it was now required in connection with the BOSS program,
which was Complainant’s responsibility. S1-2 denied however, that he changed any part of
Complainant’s performance plan.

With respect to the priority list, S1-2 denied that the priority list was removed from
Complainant’s duties, and explained that she was on detail until August 5, 2013, and unable to
do the necessary work to have the list prepared by the deadline.
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CW-1 did the preliminary work and prepared the list; however, moving forward, it was still
Complainant’s duty and was still in her performance plan.

Finally, as to her claim that she was accused of an oversight, S1-2 explained that that he received
an email message from the Acting Principal Deputy Undersecretary for Memorial Affairs on
September 25, 2013, which advised him that they would not be able to make the grant award to
the cemetery in Guam this fiscal year because they were not registered in a system required by
Agency policy. S1-2 stated that he followed up on that email and immediately contacted
Complainant. Complainant advised him that the two grants had been obligated on September 30,
2013, before the end of the fiscal year.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the evidence supports that she was subjected to disparate
treatment and a hostile work environment. Complainant argues that she resisted S1-1’s removal
of her GS-13 duties because those provided her with the experience she needed to be promoted,
provided her visibility within the Agency, and are the basis of her performance evaluation each
year. Complainant claims that her role at the Agency was diminished after S1-1’s arrival in
2012. Complainant contends that she converted the database to Excel so that the data was
readily available and there have been no documented issues. Complainant argues that the
priority list duty should not have been given to CW-1, and the list should not have commenced
prior to her return to the office on August 8, 2013. Finally, Complainant claims that
management treated her notably worse than two white employees who had a similar issue as she
did concerning the carryover funds. Accordingly, Complainant requests that the Commission
reverse the FAD.

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

As Complainant chose to withdraw her hearing request, 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 protected classes, she was subjected 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 or retaliatory
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
workplace disputes and tribulations. For example, with respect to transferring Complainant’s
duties, S1-1 explained that Complainant had complained about her workload numerous times.
ROI, at 203. As a result, S1-1 attempted to alleviate Complainant’s workload by cross-training
other employees to perform some of the duties. Id. S1-1 stated that this became a challenge as
employees reported their difficulty in working with Complainant. Id. Management subsequently
hired CW-1, and S1-1 reassigned the Customer Support Liaison duties to CW-1 based on S1-1’s
assessment of the workload distribution in the office and the level of stress of the assignment.
Id. at 204-05. With respect to the GS-14 comment, S1-1 stated that he was simply explaining to
Complainant that the position into which she wished to be promoted did not exist and there were
no immediate plans to create it. Id. at 205.

As to the Access database, S1-1 denied speaking rudely to or raising his voice at Complainant.
ROI, at 206. S1-1 affirmed that he wanted Complainant to cross-train CW-1 on the Access
database, but Complainant informed him that she had deleted her Access files. Id. S1-1
explained that this was a major concern to him as this was a major change in the business
operation and the Agency had used the database to maintain historical and critical file data for
years. Id. S1-1 confirmed that he informed Complainant that he did not approve or request that
she perform that action and that he mentioned that he may have to contact IT to restore the files.
Id. S1-1 stressed that maintaining the database was in Complainant’s performance plan. Id. at
207.

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Regarding the April 2013 meeting and temporary relocation to Central Office, S1-1 denied
acting aggressively toward Complainant during the meeting. ROI, at 208. The record contains
conflicting statements from several witnesses who attended the meeting; however, the record
supports that both appeared frustrated. Following the meeting, Complainant was temporarily
relocated to the Central Office for three days until a planned mediation could occur. Id. The
record indicates that Complainant ultimately refused to participate in the planned mediation. Id.
at 46.

As to the 90-day detail assignment, S1-1 stated that Complainant had requested a developmental
detail assignment in June and November 2012. ROI, at 210. S1-1 affirmed that he told
Complainant that they needed to focus on cross-training the new Program Analyst first, and once
that was accomplished they could pursue a detail assignment for her. Id. S1-1 authorized the
detail assignment after confirming it with the detail supervisors. Id.

With respect to the fact-finding investigation, S2 stated that prior to Complainant’s return to
VCGS he received an email from Complainant indicating that she felt threatened in the work
environment and she wanted to ensure her safety from confrontational situations with S1-1.
ROI, at 231. S2 stated that he was required to look into Complainant’s concerns because of the
safety issues she raised. Id. Ultimately, the investigation concluded that there was no safety
threat to Complainant. Id. at 231, 519. Regarding the issues related to her return to VCGS, S1-2
stated that he and others met with Complainant to integrate her back into the team and transition
her duties back to her. Id. at 217. S1-2 denied that Complainant’s performance standards
changed. Id. S1-2 explained that CW-1 prepared a memorandum documenting the duties and
responsibilities covered by employees and status reports on upcoming tasks; however, nothing in
the memorandum changed Complainant’s performance standards. Id. at 218. In addition, S1-2
emphasized that Complainant was not excluded from performing the priority list; rather, CW-1
completed the list because he wanted it completed quickly because the office had a lot of projects
to complete and Complainant would not have been able to fully complete the list upon her return.
Id. at 219. S1-2 noted that he asked that Complainant complete a priority list anyway because he
valued her work and expertise. Id.

Finally, regarding the oversight accusation, S1-2 explained that he learned from the Acting
Principal Deputy Undersecretary for Memorial Affairs that they would not be able to make a
grant award to the Guam cemetery because it was not registered in the system. ROI, at 220-21.
S1-2 stated that he contacted Complainant about the matter and later asked questions about this
oversight. Id. at 221. Complainant provided him information about the matter, and later
informed S1-2 that the Guam awards had been obligated. Id. S1-2 acknowledged that the entire
matter could have been handled differently, but it took him three days to learn that the matter had
been resolved. Id. S1-2 stressed that he did not admonish or discipline Complainant for this
incident. Id. at 222.

The Commission concludes that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
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above, Complainant has not demonstrated that the Agency’s explanation for its actions was
pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was
not subjected to discrimination, 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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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).
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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

March 7, 2018
Date