Brittany N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 7, 2018

0120162477 (E.E.O.C. Sep. 7, 2018)

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

Brittany N.,1
Complainant,

v.

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

Appeal No. 0120162477

Agency No. 20DR-0006-2015104712

DECISION

On July 26, 2016, 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
June 23, 2016, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 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 a Human Resources
Specialist, GS-14, in the Office of Labor Management Relations (LMR), Veteran Affairs Central
Office (VACO). On September 1, 2015, Complainant filed an EEO complaint alleging that the
Agency subjected her to disparate treatment and a hostile work environment based on race
(African-American), sex (female), age (40), and reprisal (informal EEO activity related to this
complaint) when:2

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.
2The numbering of the claims is different from the Report of Investigation and the Agency’s final
decision. Claims 1-6 herein are Complainant’s disparate treatment claims and Claims 1-25
comprise Complainant’s harassment claim.
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(1) from September 2013 to present, Complainant’s request to telework Mondays and
Fridays was denied;
(2) on July 9, 10 and 20, 2015, Complainant’s request for overtime was denied;3
(3) on August 18, 2015, Complainant was issued a Letter of Counseling (LoC);
(4) on March 10, 2016, S1 issued Complainant a Letter of Reprimand for Inappropriate
Conduct in the Workplace (LoR);
(5) from November 9 - 13, 2015, Complainant was not allowed to take annual leave in lieu
of sick leave;
(6) on November 5, 2015, Complainant was not allowed to work from home in lieu of
taking sick leave;
(7) since May 2013 to present, Complainant’s first-line supervisor (S1) (Black, male, 52
years old, prior EEO activity) has failed to give Complainant the opportunity to attend
the National Partnership Council and National Training and Education Committee
meetings;
(8) from March 2015 to present, Complainant’s second-line supervisor (S2) (African-
American, female, 49 years old, prior EEO activity) ceased all communications with
Complainant because during a meeting with the National Center for Organizational
Development, she challenged management on the dissemination of information to staff;
(9) on June 25, 2015, an Executive Officer/Assistant (EO) (Black, female, 47 years old,
prior EEO activity) accused Complainant of being the reason her coworker was not
allowed to telework and the reason why another coworker may be removed from his
virtual position;
(10) on June 25, 2015, EO sent a threatening and demeaning email to Complainant and
staff members pertaining to signing a telework agreement and other work related
issues;
(11) on or about June 29, 2015, S1 and EO chastised and criticized Complainant about
the notes posted on her cubicle walls which have been there for over two years;
(12) on July 28, 2015, EO sent Complainant a belittling and demeaning email about a
trip package, informing the Complainant that she was the “only person who had a
problem” with the package;
(13) on or about July 29, 2015, S1 failed to take any action when a Labor Relations
Specialist (C1) (White, male, age 54, prior EEO activity), sent a humiliating and
demeaning email to Complainant and other staff members, which reprimanded
Complainant for reaching out about the intervention program;
(14) on August 13, 2015, EO sent Complainant and other staff members a distressing
and demeaning email that directed them to answer the front office desk telephone;
(15) on August 14, 2015, EO requested information about a staff meeting from a Labor
Relations Consultant (LRC1), which was later used against the Complainant in the
LoC;

3 Complainant clarified in testimony that this claim is incorrectly framed and should state that S1
delayed the approval of the overtime that she worked on July 9, 2015, despite her efforts to follow
up with such request on July 10 and 20, 2015.
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(16) on August 17, 2015 and October 13, 2015, S1 failed to process Complainant’s
travel voucher in a timely manner;
(17) on August 17, 2015, S1 accused Complainant of not attending a scheduled meeting,
when he knew she was on annual leave;
(18) on or August 21, 2015, S1 sent Complainant an email in support of EO’s harassing
email, instructing employees to complete a training report;
(19) on August 27, 2015, EO sent Complainant and other staff members a demeaning e-
mail demanding unspecified receipts upon return from travel;
(20) on September 4, 2015, EO sent Complainant and other staff members a demeaning
e-mail that instructed them to complete their voluntary self- assessments for the FY
2015 rating period no later than September 25, 2015;
(21) on October 13, 2015, S1, failed to process Complainant’s travel voucher in a timely
manner;
(22) on October 16, 2015, EO sent Complainant and other staff members a demeaning
e-mail directing them to submit compensatory time for travel requests in an unapproved
email format for supervisory approval;
(23) on November 12, 2015, S1 allowed a Staff Assistant (SA) (Caucasian, female, age
32, prior EEO activity) to enter Complainant’s sick leave in the time and attendance
system (VATAS) without her knowledge and allowed EO, who has no leave authority,
to approve the request;
(24) on October 14, 2015, to present, S1 and EO denied Complainant’s request for an
additional computer screen within her workspace; and
(25) on September 29, 2015, S1 failed to communicate with Complainant that a new HR
Specialist had been assigned to work with her.

After 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.
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.

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”).

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
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Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing 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 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, 441 U.S. at 802 n. 13. The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason
proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was
subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000); Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318.
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep't of Veteran Affairs, EEOC
Request No. 05960473 (Nov. 20, 1997). The Commission’s policy on retaliation prohibits any
adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a
complainant or others from engaging in a protected activity. See EEOC Enforcement Guidance
on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016).

The prima facie inquiry may be dispensed with where, as here, the Agency 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); Pavelka v. Dep't of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Disparate Treatment, Claims 1-6

Non-Discriminatory/Retaliatory Explanations

Management officials articulated legitimate, non-discriminatory/retaliatory reasons for the
employment actions set forth above as follows.

Claim 1

A Labor Relations Specialist (C2) (White, male, age 42, prior EEO activity) testifies that in 2013,
VACO policies prohibited consecutive telework days, and Complainant’s request to telework
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Mondays and Fridays was denied for this reason. Complainant does not indicate that she made
any telework request since September 2013.4

Claim 2

Complainant clarifies that she worked over her tour-of-duty on July 9, 2015 because she was called
as a witness in an EEO matter. She made follow-up inquiries on July 10 and 20, 2015.
Complainant states S1 asked her to show proof of attendance. S1 confirms that he requested
evidence that Complainant was at the EEO hearing past her scheduled tour of duty. He also asserts
that shortly after receiving this information, her request for overtime was put into VATAS.
Beyond this information, S1 does not know why the request was not formally approved until
November 14, 2015.

The record shows that Complainant contacted a Staff Assistant (SA1) (African-American, male,
age 27, prior EEO activity) who performed timekeeping duties and provided him with a copy of
verification of her overtime. SA1 entered her request into VATAS on July 28, 2015. SA1 then
sent an email to S1 notifying him of the request and seeking approval. SA1 also testifies that once
these requests are put into the time and attendance system, it can take several weeks for them to
be approved. The record indicates that the request was approved by EO on November 13, 2015.

Claim 3

S1 testifies that he issued the LoC because Complainant had missed an important meeting with
union representatives. S1 states that although Complainant was on unexpected leave that week,
she made no effort to review her calendar prior to taking this leave and did not reschedule the
meeting or take steps to have a co-worker take her place to cover the meeting. For that reason, he
believed the LoC was appropriate.

Claim 4

S1 testifies that Complainant was issued a LoR on March 10, 2016, because of her poor conduct
in the workplace on February 25, 2016. According to S1, on that date, several coworkers witnessed
Complainant slam a folder on her desk and yell obscenities. S1 produced email statements from
these witnesses, which were considered when issuing the LoR. In her testimony, Complainant
admitted to tossing a folder and making an inappropriate statement at work. S1 does not believe
the LoR was inappropriate, given Complainant's conduct.

Claims 5 and 6

The record shows that Complainant submitted a doctor’s note to S1 reflecting that she needed to
be absent from the office, from November 9-13, 2015, due to an ongoing illness. At that time,

4 We note that S1 testifies that he does not specifically recall Complainant's September 2013,
request, but that Complainant currently teleworks Wednesdays and Fridays.
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Complainant requested telework in lieu of sick leave, explaining that her sick leave was being
depleted due to the illness and that her doctor had approved working from home.5 Complainant’s
message to S1 also indicated that her medication regimen inhibited her ability to drive. S1 denied
telework but approved sick leave. Complainant also asked to use annual leave instead of sick
leave, which S1 denied because Complainant had sick leave available to cover the requested dates.

S1 testified that for November 9-13, 2015, Complainant had sick leave sufficient to cover her
absence, which Complainant attributed to illness. S1 states Complainant’s leave was therefore
recorded as sick leave. An Employee Relations/Labor Relations Specialist (African-American,
female, age 27, prior EEO activity) (SME) testifies that she received an email from Complainant
on November 9, 2015, wherein Complainant asked to invoke her entitlement to leave under the
Family Medical Leave Act (FMLA) for an ongoing medical condition. According to SME,
Complainant described her medical condition as a persistent cough. SME states that she consulted
with the Office of General Council to ascertain FMLA coverage. Once FMLA coverage was
established, SME sent Complainant an email dated December 9, 2015, advising that her request
for FMLA had been approved for the time-period of November 5-13, 2015. SME also testifies
that she informed Complainant at that time that she had spoken to S1 who agreed to change
Complainant’s sick leave to annual leave for the time-period of November 9-13, 2015. SME also
explained that she advised S1 on the policy regarding telework; informing him that if Complainant
requested FMLA, then she could not telework. SME explained that telework is an active duty
work status and should not be used in lieu of requesting sick leave for legitimate sick leave
purposes.

Pretext

We agree with the Agency in concluding that Complainant fails to establish that the Agency’s
legitimate, non-discriminatory/retaliatory explanations for the employment actions were pretext or
otherwise motivated by discriminatory or retaliatory animus. We note that, contrary to
Complainant’s assertions, the record is devoid of evidence to establish that her 2013 telework
request was ongoing or that any management official viewed it as such. While the overtime
approval seems unreasonably delayed, the record is devoid of evidence to indicate that such delay
was intentional or motivated by discriminatory/retaliatory animus. We do not find Complainant’s
assertion that she failed to remember the union meeting because she was not allowed to telework
to be sufficient evidence of pretext. Prior to taking leave, it is reasonable that supervisors expect
employees to communicate meetings and projects that may be impacted by their absence so that
coverage can be arranged.

With respect to the events of November 9-13, 2015, we agree with the Agency that aside from
Complainant’s bare, uncorroborated assertions, the record is devoid of evidence to establish
pretext or discriminatory/retaliatory animus. We also find the record devoid of evidence to
demonstrate that S1 was motivated by discriminatory/retaliatory bias, when he issued the LoR on

5 There is no reasonable accommodation claim raised herein.
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March 10, 2016. Accordingly, for the reasons stated above, we find that the Complainant failed
to prove discrimination/retaliation with respect to her disparate treatment claims.

Harassment Claim

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that 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).

Much of Complainant’s harassment claim deals with EO, who Complainant believes is subjecting
her to harassment because she sends out emails regarding administrative matters, despite having
no supervisory control over Complainant. S1, S2, and EO testified that EO assists S2 in managing
the LMR office, including sending out instructions, reminders and other communications, on
behalf of S2. All three testified that sending these emails is part of EO’s job, and that it is done at
S2’s request. EO also performs other administrative functions, such as approving equipment
requests, or sending emails on behalf of S1. Complainant also asserts that S1 improperly delayed
approving her travel vouchers for one to two weeks after she returned from work travel.

We agree with the Agency in concluding that much of Complainant’s harassment allegation
centers on the administrative functioning of the LMR office and the record shows that there are
some interpersonal conflicts between EO, Complainant, and other employees in the office, who
appear to resent taking direction from EO, who is not a formal supervisor. However, we agree
with the Agency in concluding that the content of EO’s emails are not objectively harassing or
inappropriate. In addition, we agree with the Agency that the delay in approving Complainant’s
travel vouchers was not so lengthy or egregious as to give rise to an inference of discriminatory
intent. These allegations, as well as Complainant’s assertions that she was denied a second
computer monitor, and not appropriately informed that a new employee was coming to the LMR
office, are not sufficiently severe or pervasive as to constitute harassment. We also find
insufficient evidence to establish that any responsible management official was motivated by
discriminatory or retaliatory animus with respect to any of the incidents raised by Complainant.
Therefore, we agree with the Agency and find that Complainant has failed to prove, by a
preponderance of the evidence, that she was subjected to unlawful harassment.

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 that Complainant has not proven
her claims of discrimination or retaliation as alleged.

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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).
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.
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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

September 7, 2018
Date