Terisa B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120171704 (E.E.O.C. Dec. 18, 2018)

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

Terisa B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.

Appeal No. 0120171704

Agency No. 20DR00402016100911

DECISION

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 6, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS-
13, at the Agency’s Finance Division of the National Cemetery Administration facility in
Stafford, Virginia.

Parts of the events giving rise to Complainant’s claims arose from a former employee (FE2) and
an employee from another division (E1) filing formal EEO complaints in December 2012,
alleging in part that Complainant had harassed them. Ultimately, the Agency issued a decision
regarding E1’s complaint, finding that E1 established he was subjected to unlawful harassment
by Complainant based on his race but only for two of his claims. See VA Case No. 2004-0040-
2013100607 (June 30, 2014).

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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As a part of its decision, the Agency ordered Complainant to complete eight hours of EEO
training on harassment and recommended that management consider taking action, including
counseling, reassignment, and/or disciplinary action. Id. In our case at hand, the Agency stated
the reprimand at issue in claim 12 was a result of the Agency’s decision. Additionally, regarding
FE2’s complaint, the Agency found FE2 was subjected to harassment and discrimination in part
with the Commission affirming the Agency’s decision on appeal. See EEOC Appeal No.
0120152068 & 0120160586 (May 31, 2017). As a part of the decision, the Commission ordered
the Agency to conduct training and consider taking disciplinary action against Complainant, who
was found to have created a hostile work environment. Id. In our case at hand, the Agency
stated the suspension at issue in claim 14 was a result of this Commission decision.

On March 18, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment and discriminated against her on the bases of race (Caucasian) and
sex (female) when:

1. On December 11, 2008, management officials did not take appropriate action
when they learned that a former employee (FE1) accused Complainant of making
the racially offensive comment, "I wish they would bring back lynching or
hanging to this country," while in the company of a Black employee (E1).
2. On December 12, 2008, FE1 sent Complainant's former supervisor an email
accusing Complainant of making the comment, "I wish they would bring hanging
back to this country."
3. On December 17, 2009, management officials threatened to charge Complainant
with insubordination if she failed to attend a Christmas party.
4. During May 2011, a former coworker (FE2) accused Complainant of suggesting
that the former coworker pick a side concerning the disputes between Black and
White employees in the office.
5. In July 2012, E1 began making inappropriate comments to Complainant such as
"look at all that fat coming out" and "I smell bacon”, while simultaneously
making pig-like noises.
6. On July 12, 2012, and on various occasions, E1 grabbed his penis through his
trousers while making gestures at Complainant.
7. On July 26, 2012, FE2 warned Complainant that criticizing others would be
detrimental to her career.
8. On August 20, 2012, Complainant learned that FE2 accused her of hitting FE2
with a door.
9. During November 2012, E1 used information regarding Complainant's possession
of a permit to carry a concealed weapon against her in an EEO complaint.
10. On August 21, 2014, E1 tampered with Complainant's ability to receive mail at
the Agency, without any business justification.
11. On March 9, 2015, E1 accused Complainant of making the comment of hating
damn monkeys referring to African-Americans.
12. On July 24, 2015, the Deputy Undersecretary of Finance and Planning (Deputy)
issued Complainant a reprimand.
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13. During September 2015, the Director of Finance Service relocated Complainant’s
cubicle.
14. On an unspecified date, Deputy issued Complainant a seven-day suspension
without pay and benefits for the period of October 4, 2015 to October 11, 2015.

The Agency dismissed claim 12 stating that the reprimand was a discrete act and that
Complainant did not make contact with an EEO Counselor within the 45-day time limit. The
Agency’s decision did consider claim 12 in the analysis of the overall pattern of harassment
alleged by Complainant. The Agency accepted all other claims for investigation.

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). In accordance with Complainant’s request,
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 harassment or discrimination
as alleged.

Complainant filed an appeal arguing the findings in favor of both FE2 and E1 by the
Commission and Agency, respectively, were inaccurate. Complainant also argues the
investigation and evidence relied on by the Agency was insufficient. In response, the Agency
argued the Commission should affirm the decision and reiterated that there is no evidence of
discrimination, rather, there was action taken after an appropriate and thorough investigation into
Complainant’s improper conduct.

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”).

As a preliminary matter, we find that the Agency properly dismissed claim 12 for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). We find that claim 12 was properly
treated as a discrete claim and considered as background information. Complainant was issued
the reprimand on July 14, 2015. However, Complainant did not contact an EEO counselor
regarding the reprimand as well as all other claims noted above until November 24, 2015.

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Complainant did not dispute the dismissal of the reprimand claim on appeal; rather she argued
the facts surrounding the reprimand itself were false. We affirm the Agency’s dismissal of this
claim and concur with the Agency’s analysis of the events of claim 12 in the totality of the
allegations of a hostile work environment.

Disparate Treatment

In order 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). Complainant must initially 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 Construction 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, the
Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual.

With respect to the discrete acts alleged in claim 13, the Agency articulated a legitimate,
nondiscriminatory reason for relocating Complainant to another cubicle. Specifically, the record
shows prior to the move Complainant occupied a cubicle located in an area for the Operations
team, separate from the rest of Complainant’s Accountability team. After cubicles within the rest
of the team’s area were vacated due to resignation or unit transfers, the Director of Finance
Service instructed Complainant and two other employees to relocate to the vacant cubicles in
order for all team members to sit in the same designated area. Three individuals, including
Complainant, were relocated to their respective team areas to support the need for team cohesion,
diversity among coworkers, and the sharing of knowledge with junior level employees.

As to claim 14, the record shows that the Agency’s reason for suspending Complainant was
based on the findings from the Commission decision regarding FE2’s EEO complainant. In the
decision, this Commission instructed the Agency to conduct mandatory training for Complainant
and consider taking action to ensure the conduct does not reoccur. The Agency determined,
based on their investigation and those findings, that Complainant would be suspended for one
week commencing October 4, 2015. The Agency found suspension was warranted based on
Complainant’s prior reprimand for conduct unbecoming an Agency employee, the history of her
conduct, and the seriousness of the harassment charges. The Agency articulated that the reason
Complainant was issued a suspension, instead of a reprimand, was that Complainant had already
been issued a reprimand. We find that Complainant failed to establish that the disciplinary
action taken was based on discriminatory animus.
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Harassment

To establish a claim of hostile work environment, 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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 at 6 (March 8, 1994).

In this case, Complainant’s hostile work environment complaint includes allegations dating from
2008 to 2015. Claims 1, 2, 4, 8, 9, and 11 were appropriately investigated by the Agency and
decided upon based on the investigation into FE2 and E1’s EEO complaints. Those decisions
found in part that some of these incidents constituted harassment and were caused in part by
Complainant. Complainant has failed to provide any evidence that these incidents, if they
occurred as Complainant alleged, were motivated by discrimination. Additionally, an
independent investigation was done by the Administrative Investigation Board whose results
were reported to the Agency in early 2015. Thereafter, Complainant was notified of her
reprimand in March 2015.

Moreover, the incidents must have been “sufficiently severe or pervasive to alter the conditions
of [complainant’s] employment and create an abusive working environment.” Harris, 510 U.S. at
21. 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). Regarding claims 3, 7, and 10, even if
Complainant could establish the first three elements of a hostile work environment, we find these
incidents are not severe or pervasive enough to alter the conditions of her employment.
Complainant’s arguments stemming from her being threatened with insubordination,
reprimanded, and relocated to another cubicle establish her disagreement with management’s
job-related decisions, not actions taken on the basis of her sex or race.

Here, we find that, even viewing these incidents as a whole and in a light most favorable to
Complainant, she has not proffered sufficient evidence to show that the alleged harassment was
based on her protected bases. Assuming arguendo, Complainant could establish the first four
elements, Complainant has failed to provide support for the Agency’s liability. Regarding claims
5 and 6 which concern inappropriate comments and sexual gestures made by E1, the record
shows that after Complainant reported E1’s alleged behavior to agency officials, E1 was verbally
reprimanded, and Complainant did not report any additional incidents of inappropriate comments
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or gestures thereafter. The Agency took immediate steps to address the allegations and resolve
the conflict between Complainant and E1. After Complainant reported she believed her mail was
being disrupted by E1 (claim 10), Agency officials removed E1 from mail duties. Thereafter,
Complainant did not report any issues with her mail.

Complainant has failed to establish that she was subjected to a discriminatory hostile work
environment.

CONCLUSION

We AFFIRM the Agency’s final decision.

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.
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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

December 18, 2018
Date