0120101444
02-15-2012
Giani Sarah Valentino, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Giani Sarah Valentino,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101444
Agency No. 200H-0518-2009104640
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the February 3, 2010 final Agency decision (FAD) 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 FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Social Worker at the Agency’s Edith Norse Rogers Memorial VA Medical
Center in Bedford, Massachusetts. On December 22, 2008, Complainant
filed an EEO complaint alleging that the Agency subjected her to a hostile
work environment in reprisal for her prior protected EEO activity when:
1. From July 26, 2008 through August 15, 2008, she was asked to perform
duties outside the scope of her practice and her Chief failed to address
her concerns;
2. On August 5, 2008, she was asked to assure that there would be coverage
during her absence;
3. From August 8, 2008, through December 22, 2008, she was not provided
an updated position description;
4. From August 20, 2008, through August 28, 2008, her requests for annual
leave were not approved in a timely manner;
5. On August 29, 2008, her request to participate in the Commission for
Accreditation of Rehabilitation Facilities survey was not approved in
a timely manner;
6. Her September 10, 2008 request for two hours of Family Medical Leave
Act (FMLA) leave was not approved until September 16, 2008;
7. On September 12, 2008, she was informed that she was not allowed to
attend training in Albany;
8. On September 12, 2008, the Chief of Social Work did not respond to
her request that coverage be provided in her absence;
9. On September 12, 2008, Primary Care physicians requested that she be
reassigned, but the Chief of Social Work denied the request;
10. During the week of September 12, 2008, her team leader requested
that she carry her pager during lunch;
11. On September 15, 2008, she requested to meet with the director of
the facility, but the Director never responded;
12. On September 15, 2008, she was informed that she was being placed
on a performance improvement plan (PIP);
13. On September 16, 2008, she was asked to sign in and out everyday
via email;
14. As of September 16, 2008, she was required to work in a room that
was too hot, had no ventilation, and had an odor;
15. On September 22, 2008, she was charged 15 minutes of absence without
leave (AWOL);
16. On September 25 and 30, 2008, her previously approved leave request
was deferred to the group for the final decision on whether she would
be able to take the leave;
17. On September 26, 2008, her previously approved leave request for
October 14, 2008 through November 14, 2008, was denied;
18. On October 2, 2008, the chief of Social Work did not respond when
she asked him if she was still on a PIP;
19. On October 14, 2008, her performance appraisal did not acknowledge
letters of commendation from Regional Counsel and the Office of Inspector
General;
20. On October 14, 2008, her performance appraisal included information
regarding her PIP;
21. On October 14, 2008, her supervisor did not use her self-assessment
while preparing her performance appraisal;
22. From October 14, 2008, through November 14, 2008, her daily two-hour
leave requests were denied due to lack of coverage;
23. On or around October 15, 2008, her program manager called the Human
Resources office for information regarding her work assignments;
24. On October 17, 2008, her request for FMLA leave was denied;
25. On or around October 20, 2008, her supervisor did not complete a
CA-2 form;
26. On October 22, 2008, her program manager told her to contact patients
after her clinical privileges had been withdrawn and, when she refused,
he assigned her clerical duties;
27. On or about October 22. 2008, management provided inaccurate
information to the Reasonable Accommodation Committee;
28. On or about October 22, 2008, management provided inaccurate
information to the Office of Workers’ Compensation Program;
29. On October 24, 2008, the facilities reproduction center refused to
let her make copies of documents required for her accommodation request
and for ORM;
30. From approximately October 26, 2008, through November 4, 2008,
she was not provided access to her social work folder;
31. On November 3, 2008, her program manager walked by her office without
greeting her;
32. On November 4, 2008, she was informed that she was not a qualified
individual with a disability;
33. On November 5, 2008, she was placed on administrative leave and
required to check in with Police Services when entering the facility;
34. On November 26, 2008, she was told by Police Services that she was
a troublemaker because only troublemakers had to check in with Police
Services;
35. On November 28, 2008, a police dispatcher asked her if there were
any bombs in her package;
36. On December 1, 2008, she learned that her supervisor had forwarded
her CA-2 form without redacting her social security number;
37. As of December 22, 2008, her requests for leave had not been acted
upon in a timely manner;
38. On December 16, 2008, she discovered that all employees were invited
to attend the OIG/CAP Survey presentation during the week of December 9,
2008, but her request to attend was denied;
39. On December 24, 2008, she did not receive a performance award;
40. As of January 16, 2009, her requests to the director of the facility,
dated December 3, 2008, and January 10, 2009, regarding information on
her living arrangements, had not been answered;
41. On January 16, 2009, she was injured when she tripped outside of her
apartment (on Agency property) because the snow had not been properly
removed;
42. On February 20, 2009, she discovered that she had not received her
increase to Step 7;
43. On March 5, 2009, the director of the facility denied her request
for a hardship extension for her facility-owned apartment;
44. On March 5, 2009, her program manager stared at her as she spoke
with co-workers outside of police service; and
45. On April 7, 2009, she was informed that an inspection of the steam
traps in the facility housing quarters would be conducted on April
8, 2009.
Complainant amended her complaint in July 2009 to include the following
additional claims as part of her retaliatory hostile work environment
claim:
46. On April 20, 2009, her program manager followed her and spied on
her as she checked out of a supermarket;
47. On September 24, 2009, she requested a flex schedule but her program
manager never responded;
48. On November 25, 2009, she was informed that she still was required
to complete training which she had not completed in the past;
49. On May 19, 2009, her request to meet with the director of the facility
to discuss a hardship extension was ignored;
50. On May 22, 2009, she was offered time to move out of her facility
apartment if she dropped her EEO complaint;
51. On May 26, 2009, she was informed that her rent was raised on May
15, 2009;
52. On May 28, 2009, she received a notice to vacate the facility
apartment on July 7, 2009, no extension granted;
53. As of June 8, 2009, Social Work Service had not acknowledged her
retirement;
54. On June 15, 2009, Agency police threatened to cite her for
trespassing;
55. On January 23, 2007, the chief of Social Work loudly told her that
her anxiety was not due to her mental illness;
56. On February 25, 2007, she was the only staff member in her department
who did not receive new furniture;
57. From April 1, 2007, through April 15, 2007, the chief of Social Work
told her that social work was the wrong profession for her;
58. On April 16, 2007, the chief of Social Work launched an investigation
into her OIG activities;
59. In May 2007, the chief of Social Work told her that she should not
roller skate or bicycle on Springs Road;
60. In May, 2007, she was told not to communicate with her landlords;
61. On May 18, 2008, her previous program manager stopped talking to
her after she was reassigned;
62. On May 18, 2008, the chief of Social Work only allowed her 15 minutes
to have a dishwasher installed;
63. From June 1, 2008, through June 7, 2008, she was not allowed to keep
her previous phone extension after she was reassigned;
64. From June 1, 2008, through June 7, 2008, she was not allowed to keep
the furniture from her previous office after she was reassigned;
65. In July 2008, her supervisor did not allow her to leave to attend
an apartment inspection;
66. In July 2008, she was not invited to a birthday party for the chief
of Social Work;
67. In July 2008, she was granted only five minutes to attend a garage
inspection;
68. On May 27, 2009, she requested a policy memo regarding sign in/sign
out policy for retired employees but the request was ignored;
69. On June 12, 2009, the director's letter regarding her request for
an extension contained multiple inaccuracies;
70. On June 15, 2009, she was informed that she had to sign in with
Agency police;
71. On June 16, 2009, the EEO Investigator was informed that she had to
sign in with Agency police;
72. On June 17, 2009. she received a response to her Freedom of
Information Act (FOIA) request which indicated that she was not on an
official sign-in list for the Agency police;
73. On June 27, 2009, she received a letter threatening her with eviction
on July 7, 2009; and,
74. As of June 30, 2009, she had not been issued a check for her annual
leave balance.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) 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 FAD pursuant
In the FAD, initially, the Agency determined that Complainant had not
established a prima facie case of retaliatory harassment. Specifically,
Complainant alleged that the Chief was the only management official who
actually retaliated against her and that the rest of the management
officials simply mistreated her because they knew the Chief would do
nothing to help her. The Agency determined that Complainant specifically
asserted that her reprisal claim was “solely based” on the actions
of the Chief. As a result, the Agency determined that the actions of
the other management officials were not based on reprisal.
The Agency found that Complainant failed to show that she was subjected
to unwelcome personal slurs or other denigrating or insulting verbal or
physical conduct based on her prior protected EEO activity. When asked
why she felt her EEO activity was the cause for the Chief’s actions,
Complainant commonly responded that the Chief “just doesn’t like
[her],” that she constantly battles with him, and “that there is
not other reason not to like [her]” other than her EEO activity.
Complainant offered no evidence to corroborate this assertion. As a
result, based on the entirety of the record evidence, the Agency held
that Complainant failed to show that she was subjected to a retaliatory
hostile work environment.
As to Complainant’s disparate treatment claims, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, the
Chief affirmed that the problems Complainant experienced with having her
leave requests granted resulted from her refusal to arrange coverage for
the times she requested leave. Further, the Chief denied that Complainant
was asked to complete duties outside the scope of her practice; rather,
he took her concerns seriously, researched the issues, and determined
that using the software program in question was not outside the scope
of social work.
The Chief contended that he did not approve Complainant for the Albany
training because she expressed reluctance about going then developed
an eye infection the week before the scheduled training. Additionally,
he confirmed that he did not adjust Complainant’s position description
because it was already accurate. Further, the Chief maintained that he
did not deny a request by Primary Care physicians to reassign Complainant
because no such request was ever made. In addition, the Chief stated
that he met with Complainant to discuss placing her on a PIP; however,
a PIP was never implemented.
The Chief affirmed that he charged Complainant 15 minutes of AWOL in
September 2008, because she was late for work even after she had agreed
to sign in every morning as a remedy to her consistent tardiness.
He averred that he did not submit inaccurate information to the RAC
or to the Office of Workers’ Compensation Programs. Finally, the
Chief denied that he allowed other employees of the facility to treat
Complainant adversely or encouraged them to treat her adversely.
In attempting to show pretext, Complainant alleged that the Chief’s
obvious dislike of her is proof of reprisal because there is no reason
not to like her other than her prior EEO activity. In addition,
Complainant contended that many other employees of the facility all
treated her discriminatorily because they believed they could do so
without consequences from the Chief. The Agency found that Complainant
had presented no evidence in support of her allegations. As a result,
the Agency determined that Complainant had failed to show that the
Agency’s reasons were pretextual. Accordingly, the Agency found that
Complainant was not retaliated against as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the FAD ignored her submitted
evidence and believed management’s statements. Further, Complainant
contends that the investigation was flawed and unbalanced. In addition,
Complainant argues that there are creditability issues with the Agency’s
witnesses and that her arguments regarding pretext were ignored.
Accordingly, Complainant requests that the Commission reverse the FAD.
STANDARD OF REVIEW
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 9-15 (Nov. 9, 1999) (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”).
ANALYSIS AND FINDINGS
Hostile Work Environment
As an initial matter, the Commission is not persuaded by Complainant's
appellate arguments that the ROI is incomplete, biased, and one-sided.
The record does not reflect that the investigation of the subject
complaint was in any way unbalanced or incomplete. Thus, despite
the above referenced arguments, the Commission determines that the
investigation was properly conducted, and that Complainant has provided
no persuasive arguments indicating any improprieties in the Agency's
findings. Moreover, the Commission notes that Complainant requested a
FAD in lieu of a hearing, a process which would have afforded her the
opportunity to cure alleged defects in the record.
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 a protected basis, i.e., in this case,
reprisal for prior protected activity. Only if Complainant establishes
both of those elements, does the question of the Agency's liability for
harassment present itself.
Based upon a thorough review of the entire record, the Commission
finds that Complainant has not shown that she was subjected to unlawful
harassment. Specifically, the Commission finds that Complainant did not
prove, by a preponderance of the evidence, that the harassment complained
of was based on her prior protected EEO activity. The record reveals that
the working relationship between Complainant and the Chief had always been
difficult, even prior to Complainant’s prior protected EEO activity.
While the record strongly suggests that Complainant did not get along
with the Chief and others, EEOC regulations are not to be used as a
“general civility code.” Rather, they forbid “only behavior
so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
81 (1998). The Commission finds that Complainant failed to prove that
the Agency’s actions were taken because of her prior protected EEO
activity. While Complainant has cited various incidents where Agency
management took actions that were either adverse or disruptive to her,
the Commission finds that Complainant failed to show that these incidents
were unlawfully motivated.
In addition, to the extent that Complainant is alleging disparate
treatment with respect to the Agency's actions in this matter, the
Commission finds that she has not proffered evidence from which a
reasonable fact-finder could conclude that the Agency's reasons for its
actions were a pretext for discrimination. Accordingly, the Commission
finds that Complainant was not retaliated against or subjected to a
hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (Nov. 9, 1999).
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
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 15, 2012
Date
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0120101444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101444