Waltraud R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 24, 2019

0120181869 (E.E.O.C. Jul. 24, 2019)

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

Waltraud R.,1
Complainant,

v.

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

Appeal No. 0120181869

Hearing No. 510-2016-00114X

Agency No. 2001-0733-2015103175

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 23, 2018, final
order 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 order.

ISSUE PRESENTED

The issue presented is whether the Administrative Judge properly issued a decision without a
hearing finding that Complainant had not established that the Agency discriminated against her
based on race.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Consolidated
Patient Account Center (CPAC) Facility Revenue Technician at the Agency’s Florida-Caribbean
CPAC Facility in Orlando, Florida.

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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Since October 2014, Complainant’s supervisor (S1) was in and out of the office on leave, and
another supervisor (S2) (White, Hispanic), located in the Miami office, covered for S1’s absence.
In April or May 2015, S1 eventually left the Agency and S2 became Complainant’s supervisor.
Report of Investigation (ROI) at 238-9.

When S1 managed the team, he assigned cases based on subject matter, and each member was
trained to be an expert on various subject matters. ROI at 290. Complainant stated that, in
January 2015, S2 required that everyone cover delinquent accounts. ROI at 141. Complainant
stated that she received training on delinquent accounts on March 2-3, 2015. ROI at 140,143.

On January 7, 2015, Complainant sent S2 two emails. Complainant stated, “Everyday changes in
CPAC [sic] this is 2015 in the name of Jesus Christ I’m going to have a new job outside of
CPAC.” On January 8, 2015, S2 issued Complainant a verbal counseling for the
“inappropriateness” of the emails. S2 noted that Complainant’s language demonstrated a “lack of
respect and professionalism.” ROI at 226-7.

On March 16, 2015, Complainant received an email asking that she cover the customer service
desk. Complainant stated that she stopped her work and was at the customer service desk from
approximately 11:00 a.m. until 2:46 p.m. ROI at 155. On March 23, 2015, S2 issued
Complainant a verbal counseling for failure to follow instructions on March 16, 2015. S2 stated
that Complainant did not complete her work on delinquent accounts prior to working on other
accounts. ROI at 316.

In March and April 2015, Complainant stated that she was assigned a disproportionate amount of
work when S2 assigned her cases for five letters (O through S), as compared to coworkers who
were only assigned three letters. ROI at 164. On April 23, 2015, S2 issued Complainant a written
counseling for failure to follow instructions when she did not complete her work on delinquent
accounts. ROI at 317.

On June 3, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to
a hostile work environment on the basis of race (African-American) when:

1. on January 8, 2015, S2 verbally counseled her for her conduct;

2. on March 16, 2015, S2 issued her a verbal counseling for not meeting her daily
workload quota;2

3. on March 16, 2015, she received an email asking her to report to the Customer
Service Desk, where she worked from 11:00 a.m. until 2:43 p.m., which
prevented her from completing her workload quota;3

2 The record shows that this actually occurred on March 23, 2015. ROI at 316.

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4. from March 2015, through April 22, 2015, S2 assigned her a disproportionate
amount of work that was not possible to complete during her tour of duty
(customers for five letters of the alphabet), while her coworker was only assigned
three letters of the alphabet; and

5. on April 23, 2015, S2 issued her a written counseling for not meeting her daily
workload quota.4

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over
Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on April 11, 2018.

The AJ found that Complainant had not shown that she was subjected to unlawful discriminatory
harassment based on her race.5 The AJ determined that the evidence showed that S2 intended to
have the team members work on different types of accounts, and not focus on one type. The AJ
determined that S2 counseled Complainant for her email because she responded negatively to the
changes, not because she invoked the name of Jesus Christ. The AJ also noted that this
counseling, in addition to the other verbal counseling and written counseling, were nothing more
than work instructions or admonishments, which are neither severe nor pervasive to create a
hostile work environment. The AJ concluded that Complainant was not subjected to harassment
based on her race.

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.

CONTENTIONS ON APPEAL

Complainant, through her attorney, argues that the AJ erred when he granted the Agency’s
motion for a decision without a hearing because there are issues of material fact.

3 The Agency noted that Complainant worked at the Customer Service Desk until 2:43 p.m.;
however, Complainant stated in her affidavit that she worked there until 2:46 p.m. ROI at 86,
155.

4 On July 17, 2015, the Agency informed Complainant that it accepted claims 3-5 as
independently actionable claims, in addition to considering them as part of Complainant’s
overall harassment claim. ROI at 86.

5 The AJ did not address the independent claims of disparate treatment for claims 3-5 in his
decision.
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Additionally, Complainant asserts that she provided sufficient evidence to establish that she was
subjected to severe and pervasive conditions that altered the terms and conditions of her
employment. Complainant requests that the Commission remand the complaint back to the AJ.

In reply the Agency argues that Complainant did not offer any evidence, aside from her bare
assertions, that she was harassed because of her race. The Agency also states that the incidents
were not sufficiently severe or pervasive to rise to the level of unlawful harassment. The Agency
requests that the Commission affirm its final order.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”).

Decision without a hearing

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
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A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
argues that S2 unjustifiably disciplined her for not completing tasks that she was not trained to
do. However, we find that the record does not support her assertion. Complainant stated that she
began to receive training on delinquent accounts on March 2, 2015. ROI at 140. Complainant
received a verbal counseling on March 16, 2015, and a written counseling on April 22, 2015, for
not completing her delinquent accounts, which was after the training.

Ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing
was appropriate.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Hochstadt v. Worcester
Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at
802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-
716 (1983).

We note that even though claims 3-5 were accepted as independently actionable claims, the AJ
did not address them in his decision. However, we find that these claims were investigated by the
Agency, and that there is sufficient information in the record to make a fair and reasoned
determination on these claims.

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Assuming, arguendo, that Complainant established a prima facie case of race discrimination, we
find that S2 proffered legitimate, nondiscriminatory reasons for his actions. For claim 3, S2
stated that Complainant had ample time in the morning, and after she returned from the customer
service desk, to complete her work. S2 noted that Complainant completed other work and did not
prioritize the delinquent account. ROI at 247-50. Regarding claim 4, S2 stated that
Complainant’s workload was comparable to that of the rest of her coworkers. S2 stated that,
while the employees had a different number of letters to cover, the number of patients assigned
was the same. ROI at 252-3. For claim 5, S2 stated that Complainant was instructed to complete
delinquent accounts by the close of business, and she did not do so. ROI at 255.

Complainant has not shown that the proffered reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.

Complainant asserts that pretext is shown because S2 disciplined Complainant for not being
proficient before he offered training to become proficient. However, as noted above, we find that
Complainant was trained prior to S2 counseling her for not completing her delinquent accounts.
Regarding the case assignments, Complainant stated that the “alpha split” assignments were
written on pieces of paper and placed in a bag. The team members selected their assignments by
pulling a piece of paper out of the bag. Complainant also stated that one coworker was assigned
letters I-N, and another T-Z. ROI at 165-6. We note that these assignments contain more letters
than Complainant’s assignment.

S1 provided a statement in support of Complainant’s allegations and noted that he did not know
if S2’s actions were due to Complainant’s race. ROI at 289. We find that Complainant only made
bare assertions that she was discriminated against based on her race, which is insufficient to
prove pretext. Accordingly, we find that Complainant has not established that the Agency
discriminated against her based on her race when S2 issued a verbal counseling, allegedly
assigned her a disproportionate amount of work, or issued her a written counseling.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of Complainant's employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of
harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
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liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998).

In this case, we find that Complainant belongs to a statutorily protected class based on her race,
and that she was subjected to unwelcome verbal conduct. However, we find that Complainant
has not shown that any of the complained of conduct was based on her race. We find that there is
no evidence in the record that ties S2’s conduct to Complainant’s race. As such, we find that
Complainant has not shown that the Agency subjected her to a hostile work environment based
on her race.

CONCLUSION

We find that the AJ properly issued a decision without a decision. We also find that Complainant
had not established that the Agency discriminated against her based on her race when she was
issued a verbal counseling, allegedly was assigned a disproportionate amount of work, or was
issued a written counseling; or that she was subjected to a hostile work environment based on her
race. Therefore, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final order fully
adopting the AJ’s 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.
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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 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 24, 2019
Date