0520120083
02-02-2012
Penny Seward, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Penny Seward,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Request No. 0520120083
Appeal No. 0120113302
Hearing Nos. 490-2009-00173X & 490-2009-00002X
Agency Nos. 200L-0598-2009100979 & 200L-0598-2009104521
DENIAL
Complainant timely requested reconsideration of the decision in Penny
Seward v. Department of Veterans Affairs, EEOC Appeal No. 0120113302
(October 21, 2011). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(b).
In the appellate decision, Complainant alleged that the Agency
retaliated against her when on December 4, 2008, the Agency issued
Complainant a performance rating of “fully successful” on her Fiscal
Year 2008 performance evaluation; and when she learned that she was
ineligible to receive a higher performance award because of her rating.
Complainant filed a second complaint where she alleged that she was
subjected to retaliatory harassment from January through July 2009.
The alleged harassment included three instances of written counseling,
Complainant’s receipt of an email that Complainant felt disparaged
her performance and character and an allegation that her supervisor
undermined her advice. Complainant requested a hearing before an
EEOC Administrative Judge (AJ). With respect to the first complaint,
the AJ found that there were no material facts at issue so a decision
without a hearing was produced. The AJ determined that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions,
namely, Complainant received the rating that her supervisor deemed
appropriate based on her performance. The AJ found that Complainant
failed to demonstrate that she should have received a higher rating,
that similarly situated coworkers received higher ratings, and that
the level of her rating had not changed subsequent to her EEO activity.
It was determined that her rating had been consistent for many years.
With regard to claim two, the AJ held a hearing and found that with
respect to Complainant’s retaliatory harassment claim the events
described by Complainant were not sufficiently severe or pervasive
to constitute retaliatory harassment. As such, the AJ found that
Complainant failed to demonstrate that she was discriminated against.
The Commission affirmed the finding of no discrimination.
REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant repeats many of the
arguments previously made on appeal. She also maintains however,
that she was not allowed to submit into evidence, during the hearing,
a February 9, 2009, settlement agreement which demonstrated the level
of workplace harassment that she was experiencing. The settlement
agreement required that Complainant not seek, make application, or accept
employment or engagement as an employee or independent contractor with
or for the Agency for a period of ten years. Complainant contends that
the normal time period for not applying to an Agency is three years and
yet they did not want her to try to come back for a period of ten years.
Complainant also contends that she was counseled by her supervisor even
though the supervisor refused to get to the bottom of the matter to find
what the true facts were.
Further, she asserts that she repeatedly asked for information regarding
what she had to do to obtain an excellent or outstanding rating but such
requests were ignored by her supervisor. Complainant also argues that the
counseling that she received for using government postage and envelopes
was unwarranted as she was not aware that use of those items for her MSPB
claim was prohibited. Additionally, she maintains that her supervisor
undermined her advice to the units she serviced, and lied about it in
her testimony to cover up her mistake. Complainant maintains that the
retaliation continued when she received an admonishment for providing
training and information to her coworkers. Complainant indicates that
she was perceived as being disrespectful even though she was just trying
to convey information. She also maintains that she received slanderous
emails from management. She contends that all of these things combined
caused her to experience a significant amount of stress, so much so
that she was forced to take medication in order to deal with her hostile
work place.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that Complainant failed to show that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. Like the AJ, we find no persuasive evidence has been presented
which suggests that discriminatory animus was behind complaint 1 or the
workplace interactions experienced by Complainant. Further, we find that
the incidents accepted for complaint 2, even when considered together are
not severe or pervasive enough to establish a hostile work environment.
Additionally, with respect to the settlement agreement, Complainant
admits that it was excluded because she failed to submit it as evidence
within the established time frames. As such, we do not find that AJ
erred in not considering it as evidence. Accordingly, the decision
in EEOC Appeal No. 0120113302 remains the Commission’s decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
___2/2/12_______________
Date
2
0520120083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120083