U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willetta L.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181482
Agency No. 2004-0397-2017100841
DECISION
On March 21, 2018, 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
January 18, 2018, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issue presented is whether the Agency discriminated against and subjected Complainant to a
hostile work environment, based on her disability (mental and physical) and race (African-
American).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rating Veterans
Service Representative (RVSR) at the Agency’s Appeals Resource Center (ARC) in Washington,
D.C.
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 testified that she suffers from a service-connected physical disability, which she
sustained in the military in 1997, and a mental disability of anxiety that was onset by limitations
caused by her physical disability.
Complainant stated that, on November 3, 2016, her first-level supervisor (Coach) pulled her into
an empty office and informed her that the Director of the Appeals Management Office (Director)
was watching Complainant regarding overtime and calling out. ROI, at 74. Complainant averred
that she questioned why she was being watched and denied having issues related to her leave
balances. Id. Complainant stated that Coach told her that Complainant was not the only employee
who would be spoken to about the issue. Id.
On November 4, 2016, Complainant sent a request to her second-level supervisor, the Veterans
Service Center Manager (S2), be removed from Coach’s team. On November 11, 2016, she sent a
follow-up email as she had not yet received a reply to her request.
On November 14, 2016, Complainant emailed Coach regarding a rating correction. In her email,
Complainant asserted that a rating correction was unnecessary and that she felt that Coach was
requesting the correction in retaliation for asking to be moved from Coach’s team. ROI, at 294.
On November 30, 2016, Complainant emailed S2, stating that she was following up on the status
of her request to be moved to another team. ROI, at 284. On December 1, 2016, Complainant
emailed the Acting Assistant Director (S3) and the Acting Director (S4) of Appeals Management.
Id. at 285. Complainant noted that she had requested to be removed from Coach’s team on
November 4, 2016, and as of the date of the email, she had not received a response. Id.
Complainant asserted that several altercations had taken place between Coach and Complainant.
Id. As an example, Complainant described the November 3, 2016 incident when Coach allegedly
called Complainant into an office and informed her that she was being watched by S4. Id.
On December 1, 2016, Complainant emailed Coach stating that they did not have any issues, but
that she sensed tension in the air since their prior email communication on November 14, 2016.
ROI, at 286. Complainant added that it had come to her attention that Coach had labeled her as a
problem employee who calls out each Thursday and asserted that not only was she offended, but
she also felt singled out because she had requested to be moved from Coach’s team. Id.
On December 2, 2016, Complainant learned via email that she had been added to Core Team 4
and would no longer work under Coach. ROI, at 290. On December 5, 2016, Coach emailed
Complainant a September-October monthly review, which she requested that Complainant sign
and return. ROI, at 299. In response, Complainant noted that the review mentioned one instance
of failing to complete training in a timely manner. Id. at 298. Complainant asserted that while the
module in question was due on February 26, 2016, Complainant copied Coach on an email dated
March 5, 2016 indicating that the module would not proceed further.
On December 16, 2016, Coach emailed Complainant’s new management team with a request for
Complainant to sign her summary rating for the FY16 appraisal period. ROI, at 308.
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On December 19, 2016, Complainant requested to review the performance appraisal in its entirety
and her first-level supervisor stated that he would have Coach submit the entire performance
appraisal. Id. at 307. Following this email exchange, Complainant missed a telephone call from
Coach, which she forwarded to management and requested that Coach cease and desist contacting
her. Id. at 301, 309.
Complainant stated that each time she reported to the office in January 2017, Coach walked by her
selected cubicle in the hoteling area for no reason. ROI, at 87-89. Complainant maintained that
Coach did not have team members in the area. Complainant averred that whenever Coach walked
by, she would have a look of intimidation on her face. Id. On February 21, 2017, Complainant
stated that she was speaking with two coworkers in one of their cubicles when Coach approached
and entered the empty office where the alleged November 3, 2016 incident took place. Id.
Complainant asserted that Coach approached with a nasty look on her face, entered the office, left
the door open, and remained silent. Id. Complainant stated that upon Coach’s exit, Coach did not
have anything in her hand and she closed the door. Id. Complainant testified that Coach did not
have a reason to be in the area. Id.
On March 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and disability (mental and physical) when:
1. On November 3, 2016, Coach told her to stop calling out and working overtime
because the Director was watching her;
2. On November 4; November 11; and November 30, 2016, the Veterans Service
Center Manager ignored her request for reassignment;
3. From November 14, 2016, through November 16, 2016, Coach emailed her about
work assignments and called her a “problem child”;
4. On December 1, 2016, Coach sent her harassing emails about Talent Management
System (TMS) training and her performance evaluation;
5. On January 3; January 10; January 17; and January 31, 2017, she noticed Coach
walking back and forth past her office while observing her; and
6. On February 21, 2017, she noticed Coach walking into a vacant office, leaving the
door open while listening to her conversations.
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 EEOC 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 discrimination as alleged.
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In the final agency decision (FAD), the Agency found that claim (2) constituted a timely-raised
discrete act, and therefore was accepted as an independently actionable claim in addition to being
accepted as an issue related to Complainant’s overall harassment claim. The Agency determined
that Complainant belongs to a protected class based on her race and assumed for the purposes of
analysis that Complainant is an individual with a disability, therefore belonging to a protected class
under the Rehabilitation Act. With respect to her race and disability discrimination claims, the
Agency stated that Complainant presented, as evidence of her claims, only her own subjective
testimony reflecting her feeling that the issues were discriminatory. The Agency noted that
Complainant’s witnesses did not present evidence to establish that Coach observed Complainant
due to discriminatory motives based on Complainant’s protected classes.
The Agency found that because Complainant failed to establish a nexus between the issues raised
in her harassment claim and her membership in her protected classes, Complainant failed to prove
that she was subjected to discriminatory harassment as alleged.
As for Complainant’s disparate treatment claim, claim (2), the Agency determined that
management articulated legitimate reasons for their actions. Specifically, S2 testified that he did
not ignore Complainant’s request for reassignment in November 2016 as alleged. S2 stated that
he requested the reassignment on November 4, 2016, and that the request was granted but
Complainant was not actually reassigned until December 1, 2016 because of the logistics of the
reassignment. S2 alleged that the reassignment required moving other employees to new work
areas, which took time to process. As for pretext, the Agency concluded that Complainant’s
subjective belief that the management actions at issue were the result of discrimination was
insufficient to prove pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency only addressed claim (2) in examining her
hostile work environment claim. Complainant avers that the FAD only presented two relevant
findings of fact, her request for reassignment in November 2016 and the subsequent reassignment
in December 2016. Complainant asserts that her claim was not about the delay in being reassigned,
but rather the fact that her emails were ignored, and she did not receive a response. Complainant
contends that claim (2) was not intended to be a stand-alone claim rising to the level of
discrimination and that the lack of response to her emails is part of the ongoing harassment to
which she was subjected. Complainant adds that the Agency’s reason for the delay in reassignment
is not a credible explanation for their failure to respond. As for the overall hostile work
environment claim, Complainant maintains that the Agency overlooked facts supporting her
allegations and simply stated that Complainant only presented her own feelings that discrimination
occurred. Complainant alleges that the Agency offered no reasonable explanation as to its actions
outside of claim (2). Complainant concludes that because the FAD grants her allegations as true
and contains no legitimate, nondiscriminatory reason for the Agency’s actions, the Commission
should issue a finding in her favor.
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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 (EEO MD-
110), at Chap. 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”).
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
[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.
Construing the evidence in the light most favorable to Complainant, the alleged incidents were not
sufficiently severe or pervasive to establish a legally hostile work environment. The Commission
notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive
as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc.,
523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, the Commission finds that Complainant failed to
show that the Agency’s actions were based on discriminatory animus.
The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. For example, Coach denied
that the conversation in claim (1) took place as Complainant alleged. ROI, at 101.
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Coach stated, however, that there was a station memo for all employees regarding procedures for
overtime and calling out. Id. S2 corroborated Coach’s testimony, providing the memo and
asserting that as part of enforcing the memo, many employees were verbally counseled regarding
violations of the station policy. S2 stressed that it was not unusual or limited to Complainant, and
that higher-level management monitored compliance with the policy across all ARC employees.
Id. at 116-117. S4 denied telling anyone that he was watching Complainant but noted that it would
have been an accurate statement for Coach to advise employees that he was monitoring employee
leave usage to ensure that they were maximizing employee availability. Id. at 133, 135. S4 added
that Complainant self-reported that her first-line supervisor had addressed the matter. Id. at 134.
As for claim (2), S2 explained that Complainant requested to be moved on November 4, 2016, but
there was not an immediate need for her position on another team. ROI, at 118. Therefore,
Complainant’s reassignment required multiple moves and coordination between teams. Id. S2
noted that Complainant was moved on December 1, 2016, and he had no recollection of receiving
multiple emails from Complainant or failing to respond to Complainant’s original request. Id. at
118. S4 reported that although Complainant alleged in an email to him and S3 that her request had
not been acted upon, there was no evidence that her request was ignored. Id. at 135. Rather, S4
stated, Complainant’s request was granted after they adjusted the workforce to accommodate
Complainant. Id.
With respect to claim (3), Coach denied calling Complainant a “problem child” during the group
huddle. ROI, at 103. Coach asserted that she would not speak to Complainant or any other
employee in that manner. Id. As for emails regarding work assignments, S2 explained that as part
of the workload management strategy employed across ARC, when first-line supervisors assign
priority cases to an employee, it is the responsibility of the first-line supervisor to follow-up with
that employee until the case is complete. Id. at 119.
Turning to claim (4), Coach denied sending Complainant harassing emails and asserted that she
only emailed Complainant to request that she change her TMS supervisor. ROI, at 105. Coach
explained that TMS sends delinquent notices to supervisors and she requested that Complainant
update her supervisor in the system. Id. S2 stated that an email was sent on December 5, 2016, to
inform Complainant that she was moving to a new team and needed to change her TMS supervisor
to reflect her move to the new team. Id. at 121. Complainant did not follow instructions to change
her supervisor in TMS and Coach still received notifications, which Coach forwarded to
Complainant and advised Complainant to complete the assigned tasks. Id. S2 maintained that it
was a regular management function. Id. He added that when Complainant was assigned to her
new team, Coach was required to provide a performance evaluation to cover the period for which
Coach was Complainant’s first-line supervisor. Id. S2 stated that Coach stopped contacting
Complainant regarding her performance evaluation once it was provided. Id.
As for Complainant’s claims that Coach observed her in January 2017 and listened in a vacant
office in February 2017, Coach affirmed that she entered the hoteling area to check attendance of
the employees assigned to the Special Operations Team. ROI, at 106. Coach stressed that she
only walked through the area to conduct business.
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Id. S2 stated that with the establishment of hoteling work stations on September 29, 2016, the
coaching staff is expected to visit the hoteling area to ensure that employees are in-house and have
materials to complete their work assignments. Id. at 122. S2 asserted that Coach would have
entered the area to check the fax machine and printers, which are within the hoteling area, for
personally identifiable information. Id. Finally, S2 confirmed that following ARC’s move to the
fourth floor, there were no longer enough offices to accommodate each supervisor, and
management assigned the coaching staff shared office space for privacy and personnel actions. Id.
at 123.
Complainant has not shown that she was subjected to a discriminatory hostile work environment
based on her disability or race. Moreover, to the extent Complainant claims that she was subjected
to disparate treatment, the Commission finds that, as discussed above, Complainant has not
proffered any evidence from which a reasonable fact finder could conclude that the Agency’s
explanation for its actions was pretext for discrimination. In examining the evidence of record,
one of Complainant’s witnesses stated that wherever Complainant sat, Coach would walk by. ROI,
at 161. He testified that Coach has a problem with veterans and looks, stares, and walks away. Id.
at 163. Even crediting these statements, we do not find that all the incidents, taken together, rise
to the level of severe or pervasive harassment. Accordingly, we find that the Agency did not subject
Complainant to a hostile work environment based on her disability or race, and did not subject her
to discrimination as alleged.
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 decision finding that Complainant was
not discriminated against, nor harassed, as alleged.
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.
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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
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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
July 10, 2019
Date
