Sueann C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 23, 2016

0120143104 (E.E.O.C. Mar. 23, 2016)

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

Sueann C.,1
Complainant,

v.

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

Appeal No. 0120143104

Hearing No. 532-2012-00044X

Agency No. 200H-0541-2011103781

DECISION

Complainant filed an appeal from the Agency’s July 17, 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, as amended, 42 U.S.C. § 2000e et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Employee Labor
Relations Specialist at the Agency’s facility in Cleveland, Ohio.

On July 27, 2011, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (African-American), sex (female), color
(Black), and in reprisal for her prior protected EEO activity under Title VII when:

1. Complainant was not selected for the position of Human Resources Specialist.

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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Complainant subsequently amended her complaint to include the following claims that were
accepted:

2. On November 1, 2011, Complainant was subjected to reprisal when she received a
less than expected performance rating that included negative comments.

3. On November 21, 2011, Complainant was subjected to reprisal when she was
assigned to daily meetings with a Human Resources Specialist to discuss her daily
work assignment.2

At the conclusion of the 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
and the AJ held a hearing on August 27-28, 2013, and issued a decision on June 30, 2014.

The AJ found that no discrimination occurred with regard to each claim. The AJ stated that
Complainant has been employed in her position since March 28, 2009. The AJ noted that
Complainant stated that her prior EEO activity occurred on February 2, 2011, when she sent
an e-mail to her Supervisor, the Chief of Human Resources Management Service, complaining
about being treated differently with regard to training.

With regard to claim (1), two selectees were chosen for the position of Human Resources
Specialist. While Complainant was interviewed on May 17, 2011, by her Supervisor, she was
told on May 26, 2011, that she had not been selected for the position. The AJ stated that the
Supervisor asserted Complainant performed poorly during her interview. According to the
Supervisor, Complainant received a score of 29, while Selectee 1 received a 47, and Selectee 2
scored a 49. The Supervisor stated that at the time of the interview, Complainant had two
years of Human Resources experience. The Supervisor noted that Selectee 1 had twelve years
of public and private sector experience as a Human Resources Specialist at the time of his
selection. The Supervisor stated that Selectee 2 had over three years of private sector
experience as a Human Resources Specialist.

With regard to claim (2), Complainant received an overall rating of “Fully Successful”.
Complainant claimed that she deserved a rating of “Outstanding” based on the changes she had
to deal with regarding the different Specialists she was assigned to. According to
Complainant, she had to take orders from different Human Resources Specialists for a period
of time and the block of services changed and she was reassigned to handle the Employee of
the Month Award Program. Complainant stated that the volume of her work expanded and the
questions and customer service level increased with employees calling on a regular basis.
2 The Agency dismissed several additional claims. Complainant raised no challenges to the
Agency's dismissal before the AJ or on appeal; therefore, the Commission will not address
those claims in this decision.

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Complainant complained about a statement in her performance appraisal that she should seek
out special projects or improve areas of need within the section to become more
vocal/interactive with each of her peers in the section. Complainant stated that this remark
was untrue because there was no time for her to seek out special projects and focus on areas of
improvement in the section. According to Complainant, the comment was motivated by
reprisal given that other Employee/Labor Relations employees received ratings of Excellent
and Outstanding. The Supervisor stated that the former Chief of Employment Labor Relations
issued the performance appraisal and he left the Agency on May 6, 2011. The Supervisor
stated that both he and the new Chief agreed with the prior Chief’s summary rating and
comments and decided not to change Complainant’s rating.

With respect to claim (3), Complainant stated that a Human Resources Specialist spoke to the
new Chief about her having daily meetings with him. The AJ noted that Complainant stated
the Human Resources Specialist was concerned that FMLA requests were not getting done in a
timely manner and he wanted to know about work that was being completed so that he would
be able to answer questions when someone sought a status request. The new Chief stated that
the other Employee and Labor Relations Assistants generally gravitate toward their Human
Resources Specialist and consult or exchange their cases, and are thus unofficially mentored by
their Human Resources Specialist. The Chief noted that Complainant in contrast closes her
door to the work area and detaches herself from others and is not approachable. According to
the Human Resources Specialist, he and Complainant rarely spoke to each other unless an issue
developed that required their input. The Human Resources Specialist stated that there were
instances where he was not aware of leave and award issues that were pending and handled by
Complainant.

With regard to claim (1), the AJ concluded that Complainant failed to show that her
qualifications for the position were clearly superior to the selectees. With respect to claim (2),
the AJ found that Complainant failed to establish a prima facie of reprisal because she failed to
show that the former Chief was aware of any EEO activity when he issued her the performance
appraisal. As to claim (3), the AJ found that Complainant did not set forth a prima facie case
of reprisal because she failed to identify the prior EEO activity of which the Human Resources
Specialist was aware when Complainant was given the work assignment of meeting with him
on a daily basis.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

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(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
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). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a
nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where 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).

With regard to claim (1), the Agency stated that Complainant scored a 29 for her interview and
the selectees scored 47 and 49. The Agency stated that Selectee 1 had twelve years of related
human resources experience. The Agency noted that Selectee 2 had three years of related
human resources experience. The Supervisor stated that each selectee was able to demonstrate
that the work they performed in past positions most closely and successfully approximated the
work they would be expected to perform. The Supervisor added that each selectee had been
involved in difficult Employee Relations and Labor Relations matters, complex and adversarial
union matters and leave and incentive awards issues. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its selections.

The Commission has long held that an agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

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248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Complainant may be able to establish pretext with a showing that her qualifications were
plainly superior to those of the selectee. Wasser v. Dep’t of Labor, EEOC Request No.
05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant has failed to make this showing. We do not find any persuasive evidence that
Complainant was so better qualified for the positions than the selectees that discrimination
could be inferred from her non-selection. The record also does not show that Complainant’s
protected bases were considered with regard to her nonselection at any time in the selection
processes.

With respect to claim (2), the former Chief stated that Complainant’s overall work
performance was acceptable, but she failed to provide evidence of progression, and very few
areas of her performance could be considered exceptional. The former Chief’s successor
agreed with his predecessor’s summary rating of “Fully Successful” and did not change it. He
stated that he explained to Complainant that it was not enough for her to just do what she
needed to do, in order to get more than a “Fully Successful.” We find that the Agency
articulated legitimate, nondiscriminatory reasons for the comment at issue and Complainant’s
overall “Fully Successful” performance rating.

Complainant argues that other Employee and Labor Relations employees received “Excellent”
and “Outstanding” ratings. Complainant claims that the comment in her performance appraisal
was untrue because there was no time for her to seek special projects or focus on areas of
improvement in the section. Complainant believes that her evaluation was retaliatory. We
find that the arguments presented by Complainant are not sufficient to prove that the Agency’s
explanation is pretext intended to hide retaliatory motivation.

With regard to claim (3), the Human Resources Specialist decided that he would meet daily
with Complainant until a reliable method was established and he was comfortable with her case
handling. We find that the Agency articulated a legitimate, nondiscriminatory reason for
assigning Complainant to meet with the Human Resources Specialist on a daily basis.

Complainant contends that no other Employee and Labor Relations Assistants were required to
meet daily with their Human Resources Specialist and tell them what they were working on.
Complainant argues that she was singled out because she had engaged in EEO activity. We
observe that the new Chief stated that the other Employee and Labor Relations Assistants
generally gravitate toward their Human Resources Specialist and consult or exchange their
cases, and are thus unofficially mentored by their Human Resources Specialist. The Chief
noted that Complainant in contrast closes her door to the work area and detaches herself from
others and is not approachable. According to the Human Resources Specialist, he and
Complainant rarely spoke to each other unless an issue developed that required their input.
The Human Resources Specialist stated that there were instances where he was not aware of
leave and award issues that were pending and handled by Complainant. We find that
Complainant has not established that the Agency’s stated reasons to have her meet with the
Human Resources Specialist on a daily basis were pretext to hide discriminatory intent.

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CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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

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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 23, 2016
Date