[Redacted], Sueann C., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 14, 2020

Appeal No. 2020000220 (E.E.O.C. Dec. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sueann C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000220 Hearing No. 430201800094X Agency No. 200406522017101866 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 5, 2019 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Administrative Officer (“AO”), GS-11, Geriatrics and Extended Care Services (“G&EC”) at the Richmond VA Medical Center, in Richmond, Virginia. On April 11, 2017, Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment/hostile work environment by the Agency on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity2 when: 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. 2 Complainant provides three instances of underlying EEO activity: (1) on June 5, 2013, she filed an EEO Complaint (Agency Case No. 200406522013103335) alleging discrimination by her 2020000220 2 1. On unspecified dates, between 2016 and 2017, her first level supervisor (“S1”), the G&EC Associate Chief of Staff, GS-15, (white, female), isolated Complainant from direct and ongoing day to day involvement in important aspects of Medical Center Operations, making it impossible for her to perform her job, and, effectively prevented her from having access to vital internal company data and/or information involving in a decision-making process, 2. In July 2016, S1 deliberately excluded Complainant from a meeting, where she was ridiculed and belittled, 3. In May 2016, S1 placed Complainant in an administrative supervisory role yet failed to recognize her work and contributions, 4. On September 20, 2016, S1 sent Complainant a harassing email demanding that she submit her self-assessment 16 days earlier than her co-workers, 5. In November 2016, Complainant applied to four GS-0301-12, Program Specialist Control Substance Coordinator positions (all posted in October and November 2016 under Vacancy Announcement No. VHA65217LS1874566BU), but she was not selected, 6. Between October and December 2016, Complainant reported to Management that S1 monitored and second-guessed her, and scrutinized her assignments to a greater extent than she did with the white staff, but Management ignored her, 7. In November 2016, Complainant learned that she was not selected to participate in the hiring process for new employees, while one of her coworkers (“C1” female), was allowed to participate in the process, 8. In November 2016, S1 made disparaging comments about Complainant, accusing her of not performing her duties as an AO, and stating that Complainant’s staff was "struggling due to her lack of leadership," 9. Between November 10, 2016 and April 3, 2017, S1 scheduled meetings with Complainant, then canceled without notice, 10. On November 18, 2016, S1 made an inappropriate remark in front of Complainant’s peers and leadership, that Complainant was a difficult person to work with, supervisor (“S1”), which was filed on July 11, 2013, and resolved via settlement agreement on September 12, 2013, (2) in October 2015, she served as an EEO witness for a co-worker (black, female) who also alleged discrimination by S1, and (3) on February 14, 2017, she initiated EEO contact for the instant complaint. 2020000220 3 11. On November 28, 2016, S1 excluded Complainant in the management and the operations of Geriatrics that Complainant provided AO coverage for, 12. On January 13, 2017 and February 14, 2017, Complainant was denied a requested reassignment, 13. On January 20, 2017, S1 did not include Complainant as a recipient of an email notifying everyone in G&EC of her absence, 14. On January 27, 2017, S1 tried to trick Complainant into signing a Performance Plan for 2017 that contained new duties that were completely different from her duties in 2015 and 2016, 15. In February 2017, during a meeting, S1 and another management official accused Complainant of instigating an employee to file a grievance, 16. From February 10, 2017 to February 21, 2017, Complainant was not provided with her performance standards, 17. On February 13, 2017, the Chief of Human Resources (“HR”), sent Complainant a harassing email saying, "If you feel that you are in a hostile work environment, please contact EEO office for actions, thanks," 18. On February 17, 2017, Complainant received her Performance Appraisal (“PA”) and discovered that she received a rating of "Fully successful" rather than "Excellent," for the performance period of October 1, 2015 through September 30, 2016; S1 ignored Complainant’s request to discuss her rating, 19. On February 17, 2017, Complainant emailed S1 to ask why she did not receive a higher rating or a cash award, and S1 later told Complainant that her performance was rated Fully Successful, "because it's fully successful," 20. On February 21, 2017, Complainant did not receive a performance award due to her "fully successful" rating, 21. On February 21, 2017, S1 did not use Complainant’s submitted self-assessment when reviewing her PA, 22. On March 14, 2017, S1 demanded that Complainant obtain TMS privileges for an employee that Complainant does not supervise, and held Complainant accountable when things were out of hand or happened during her absence, 2020000220 4 23. On March 24, 2017, Complainant became aware that she was not selected for the position of GS-0301-11, Program Specialist Control Substance Coordinator, (Vacancy No. VHA65217LS1874566BU), 24. On May 23, 2017, S1 cancelled a detail at the Agency’s Central Office in Washington, D.C., to which Complainant had been assigned, causing her to use leave on May 23, 2017, 25. On April 25, 2017, S1 denied Complainant overtime, and, 26. On May 4, 2017, Complainant learned that she was not selected for a position as a GS-0301-12 Supervisory Program Specialist (Customer Service Manager/Program Advocacy (Vacancy No. VHA65217PAD1937962). After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The parties engaged in discovery, and a hearing was held. Prior to the hearing, the AJ issued a summary judgment decision in favor of the Agency for Claims 5, 23, 25, and 26. The AJ also affirmed the Agency’s dismissal of Claims 8, 12, and 16 on procedural grounds. The hearing, held on July 18, 2019 and August 5, 2018, addressed Complainant’s hostile work environment complaint, and the discrete actions related to her performance appraisal (Claims 18, 19, 20, 21) and the canceled detail (Claim 24). The record includes the following facts: In February 2014, Complainant began working as an AO, becoming S1’s direct report. It is undisputed that from early on in this position, Complainant and S1 had a continuously “tense” working dynamic. Performance Appraisal On September 14, 2016, at S1 granted Complainant’s request for approval to send an email to Providers and Administrative Staff to submit their self-assessments, which would be used for completing their performance appraisals, by September 28, 2016. On September 20, 2016, S1 provided Complainant with the self-assessment form and asked her to complete and submit her self-assessment by September 28, 2016. Complainant responded, reminding S1 that the deadline for AOs to submit their self-assessment was October 14, 2016. Complainant submitted her self- assessment in accordance with the October 14, 2016 deadline. On October 23, 2016, Complainant received her Performance Appraisal (“PA”) for Fiscal Year 2016 (“FY16”) and saw that her overall rating had decreased from “Excellent” in FY15 to “Fully Successful.” The full FY16 PAs were under review with HR, so she had no explanation. 2020000220 5 On October 24, 2016, and again on October 26, 2016, after S1 did not reply, Complainant emailed S1, expressing her confusion over her lowered rating and requesting to meet and discuss her FY16 PA. Calendar records show that S1 scheduled meetings with Complainant to review her FY16 PA on November 2, 7, and 14, 2016. S1 testified that she could not recall why she and Complainant did not meet on November 2, or 7, 2016, but states that they did not meet on November 14, 2016 because Complainant did not show. On December 22, 2016, over a month after the deadline to submit the ratings to HR, and after S1 met with her other direct reports, S1 met with Complainant, who was accompanied by her union representative. Afterward, S1 determined that she would not change Complainant’s rating. The AJ took judicial notice that on November 10, 2016, S1 changed the overall rating of another one of her direct reports (white, female) from “Fully Successful” to “Excellent” after that employee expressed disagreement with the rating and they met and discussed it. On February 17, 2017, the PAs for FY16 were distributed again, after rating supervisors added notes and HR processed the ratings and corresponding cash awards. Complainant’s FY16 PA reflected that she scored “Fully Successful” on all six of her performance elements. S1’s sole comment was “continues to demonstrate practices to organize processes and sustainable service needs and SOPs.” The section of the FY16 PA reserved for an explanation for a change in overall score was blank, despite the change in Complainant’s overall score. When Complainant asked S1 for an explanation again, S1 responded with a generalized definition of “Fully Successful” consistent with the HR definition. Complainant did not receive a cash award for FY16 because the Director did not approve monetary awards for employees with overall ratings of “Fully Successful” that year. The decision was within the Director’s purview, and made before the FY16 PAs were issued. Canceled Detail On May 22, 2017, Complainant saw an opportunity for a 120-day detail as a GS-11/12 Client Relations Specialist at the Office of the Secretary’s White House Veterans Hotline. The detail was located two hours away in the Agency’s Central Office in Washington, DC, and scheduled to start two days later, on May 24, 2017. Complainant requested approval from S1, who provided it a few hours later. S1 contacted S2 and HR. HR asked S1 to provide her with a “detail memo” containing critical logistical information, such as which office (the Richmond VAMC or the Central Office) would pay Complainant, and whether Complainant, a GS-9, would be temporarily promoted. The Director of the VHA Office of Client Relations (“D1”), who was the point of contact for processing the detail at the Central Office, as well as the Director of Client Relations in the Office of the Secretary (“D2”) who was managing the detail, along with other parties from both offices, emailed extensively with HR, S1, and Complainant about the logistics of the detail throughout May 22, 2017 and May 23, 2017. 2020000220 6 On May 23, 2017 at 9:00 am, D2, emailed Complainant congratulating her on her selection for the White House Veterans’ Hotline. Complainant departed for Washington, D.C. around noon. HR, S1, D1, and D2 were still emailing back and forth (copying Complainant) to confirm logistics and process the detail in time for Complainant to report the next morning. HR notified Complainant and S1 that she confirmed the funding for the detail, and that a “written detail memo is forthcoming from [D1’s] office,” in an email at 4:38 PM. While Complainant was on the road, she received a call from D1’s Deputy Director rescinding the detail because her application had not been processed in time. Complainant emailed HR, S1, and others that “due to a delayed response to VHA Office of Client Relations” the detail was filled by another candidate. HR responded that she and S1 had been in communication with the Office of Client Relations to obtain the logistics, and that they “fully support detail opportunities and will continue to do so.” According to Complainant, S1 deliberately delayed conveying the necessary information to D1, causing the cancellation. Hostile Work Environment According to S2, in or about 2014, “fairly early on in her employment” with G&EC, Complainant came to her because she was having difficulties assisting S1. S2 further testified that this occurred multiple times, and that Complainant said she had a hard time understanding what S1 wanted, and she felt S1 did not appreciate her. S2 also testified that “early on,” S1 came to her and complained about Complainant’s problem-solving abilities and understanding of the position. According to Complainant, in 2016, she became S1’s “target, and suffered continual harassment” following her 2013 and 2015 EEO activity. Complainant alleges that S1’s decisions regarding her work assignments, her communication, and micromanaging, were all intended to undermine her performance and embarrass her. Testimony from one of Complainant’s colleagues, who was present during the weekly meetings, where S1 would review projects with Complainant, described S1 as critical of Complainant, and creating a generally uncomfortable atmosphere, as though they were “airing their dirty laundry.” She also recalled that S1 was less friendly with Complainant than her colleagues. Based on the evidence developed during the hearing and in the report of investigation, the AJ issued a decision in favor of the Agency on September 3, 2019. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Claims Dismissed or Decided by Summary Judgment The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 2020000220 7 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 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) see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (rev. 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Complainant did not establish such a dispute with respect to Claims 5, 23, 25, and 26, and the procedural dismissals of Claims 8, 12, and 16. On appeal, Complainant has not offered any argument or evidence to show that an issue of material fact exists for these claims to warrant a hearing. Hearing Decision Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9 § VI.B. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder 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). 2020000220 8 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission has long held that the Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259, Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997), see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31, 2013). Performance Appraisal For Claim 18, the AJ found that S1 credibly testified legitimate non-discriminatory reasons for Complainant’s PA for FY16. Specifically, the decrease in Complainant’s overall rating from “Fully Successful” to “Excellent” was due to Complainant showing less engagement, continuing to require oversight, and making errors in her work. S1 also noted that when she scored Complainant’s FY15 PA, she took into consideration that Complainant had been in the AO position for 7 months and was new to the work. Later in her testimony S1 noted that in FY15, Complainant “reaped” the credit for the projects that were started before Complainant became an AO, but such projects were not available in FY16. S1 acknowledges that Complainant was not behind on any of her projects, but testifies that Complainant made frequent errors. S1 testified that she did not formally document the errors, or include them on Complainant’s mid-year review or PA because “because those were things that we’ve constantly talked about throughout the year.” S1 testified that she tried to “push” Complainant to meet the “Excellent” level, but Complainant “wasn’t very receptive to a lot of the feedback.” S1 cited the weekly meeting as an example of when she provided verbal feedback and “pushed” Complainant to do “Excellent” level work. Complainant’s FY15 PA reflected that Complainant scored “Fully Successful” on two elements, and “Excellent” on the remaining four elements. In the FY15 PA, S1 included notes describing Complainant’s positive contributions in the three Core Competencies where she received an “excellent” rating. For the FY16 PA, Complainant testified that throughout FY16, S1 did not tell her she was behind on anything, but recalls that S1 often used the word “struggling” in relation to Complainant’s work, or that staff were “struggling” because of Complainant. 2020000220 9 For Claim 19, the record supports that S1 could have addressed Complainant’s requests for feedback on her FY16 PA and her alleged mistakes in a more constructive manner, and that she failed to provide an explanation for the decreased overall rating in the FY16 PA form. We note that S1 expended minimal effort explaining her actions during the EEO investigation, as she simply used the Agency’s HR Policy definition of “fully successful” performance as her response for each of the EEO Investigator’s questions related to Complainant’s decreased PA score. However, during the hearing, the AJ found that S1 credibly testified that she addressed reasons for the decrease with Complainant throughout the year in emails and discussions, and that she was not required to provide comments for scores of “Fully Successful.” Both Complainant and witnesses support S1’s testimony that she addressed mistakes during the weekly meeting. Testimony about the toxic nature of the weekly meeting as an “airing of dirty laundry,” S1’s poor communication with Complainant, and her apparent deficiencies in leadership do not in themselves evince discriminatory motivation. For Claim 20 the AJ found that S1, S2, and HR credibly testified that Complainant did not receive a cash award for her performance because the Director did not approve monetary awards for employees with overall ratings of “Fully Successful” in FY16. For Claim 21, S1 disputes Complainant’s allegation that she did not consider her self-assessment when scoring her FY16 PA, and provides legitimate nondiscriminatory reasons for relying on other data when assessing Complainant’s performance. S1 testified that she reviewed the self- assessment, and determined that it lacked sufficient detail, and found that she disagreed with Complainant’s characterization of her role on assignments (for example “leading” versus “organizing”). S1 states that, among other things, she took some of the projects that Complainant “actively participated in” and used those to form her assessment. For instance, S1 refers to “several errors on the HR sheet.” While we note Complainant’s point, that S1 granted multiple individuals access to edit the HR sheet, resulting in mistakes, it is undisputed that this project was discussed on a weekly basis, and that it fell under Complainant’s responsibilities. Unless there is discriminatory and retaliatory motive, a Complainant’s disagreement about a supervisor’s methodology in rating their performance concerns business judgment outside the purview of this Commission. In other words, it is at the Agency’s discretion which projects and achievements to emphasize, and the extent to which an employee’s self-assessment receives consideration. Similarly, S1 acted within her business discretion when did not change Complainant’s overall rating of “Fully Successful,” as she did for Complainant’s colleague, because, unlike her colleague, Complainant did not bring any new information or data to support to their meeting to support an increased rating. On appeal, Complainant challenges S1’s credibility, which the AJ heavily relied on in reaching a finding in the Agency’s favor. However, Complainant has not offered documents or other objective evidence that so contradicts S1’s testimony, or demonstrated that S1’s testimony so lacks in credibility, that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9 § VI.B, supra. 2020000220 10 Canceled Detail For Claim 24, the Agency’s legitimate nondiscriminatory reason for the cancellation of Complainant’s Client Relations Specialist detail at the Office of the Secretary’s White House Veterans’ Hotline, was that it was unable to work out the logistics to process the detail within the 2 day time frame provided. The AJ found that HR credibly testified that based on her 30 years of experience, details such as the one requested required at least two weeks to obtain approval from Headquarters. Even assuming that this detail could have been processed in two days, Complainant’s argument that S1 caused her detail to be canceled by deliberately slowing its processing is not supported in the record. S1 approved Complainant’s detail, and S2 testified that late afternoon on May 22, 2017, S1, who was responsible for signing Complainant’s time cards, sought her out and asked how to handle Complainant’s payment while on detail, and S2 directed S1 to HR. HR testified (and email evidence supports) that S1 asked for assistance in processing Complainant’s detail request shortly after. S1’s prompt response times in emails regarding the detail on May 22 and 23, 2017 were typically within minutes, never more than several hours. Complainant testified that she called D1 and asked what happened, as she was accepted for the detail that day. D1 responded that he couldn’t get anyone to call him back, and (as it was the evening before the start date) he was working with an “aggressive” time frame. Complainant called S1, who allegedly claimed not to know what Complainant was talking about, and simply responded “huh-uh” when Complainant asked if she called anyone in reference to the detail. Since Complainant was out of the office, she asked S1 if she could call HR for more details. S1 repeated that she did not know anything about the rescission, and that as it was almost 4:30, and HR may have left already. At Complainant’s insistence S1 agreed to call HR and ask what happened, but S1 never called back. The Hearing Transcript reveals that Complainant alleges that when she received the call rescinding the detail, the Deputy Director stated, “I hate to tell you this but [S1] called every and anyone she could possibly speak to [at the detail site] that she is not going to pay your salary,” and that S1 rescinded approval because she “needed” Complainant. However, these alleged statements by S1 contradict Complainant’s and other witness testimony that S1 demonstrated a lack of confidence in Complainant’s work by constantly checking it with other AOs. Moreover, it is undisputed that S1 promptly approved Complainant’s detail request. In testimony deemed credible by the AJ, S1 explained that she was very busy that day and asked HR to call D1, and references the 4:38 PM email in the record from HR confirming that she spoke with D1 and that the paperwork was “forthcoming.” Complainant offers no evidence on appeal to show that S1, who approved the detail, intentionally sabotaged the processing. We find that the record supports the Agency’s legitimate nondiscriminatory reasons, timing and logistics, for the cancellation of Complainant’s detail. 2020000220 11 Harassment/Hostile Work Environment 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 race or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996), Henry v. United States Postal Service, EEOC Request No.05940695 (Feb. 9, 1995). We also note 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." See Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 81 (1998). The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. As a preliminary matter, we have excluded Claims 18, 19, 20, 21, and 24 from our harassment analysis because the Agency successfully provided legitimate nondiscriminatory reasons for its actions related to Complainant’s performance appraisal and cancelled detail. We analyzed Claim 17 separately because it identifies HR as the individual responsible for the alleged harassment, while the remaining claims all concern S1. In this instance, the alleged harassment is a short response email from HR to Complainant stating that the proper venue to pursue a hostile work environment allegation is the EEO office. This was a correct and relevant response that Complainant would have found useful, as, in addition to HR, she appears to have reached out to multiple non-EEO individuals about experiencing a hostile work environment before initiating the instant complaint. 2020000220 12 We find that an email consisting entirely of accurate advice, in response to a related inquiry, is sufficiently severe or pervasive to constitute harassment, even if it was written in a brusque tone. Claims 1, 3, 4, 7, 11, 14 and 22 concern S1’s decisions and instructions regarding Complainant’s work assignments. The EEOC has long held that routine instructions from a supervisor are common workplace occurrences, which, while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). While an employee may prefer certain assignments over others, or have a different idea about how operations should be run, “these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved.” Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). Complainant contends that S1 “isolated” her from “ongoing day to day involvement in important aspects of Medical Center Operations” (Claim 1), did not recognize her contributions after placing her in supervisory role in May 2016 (Claim 3), provided her with an earlier deadline to submit her self-assessment (Claim 4), selected Complainant’s coworker to assist with hiring a new employee, even though it would have made more sense to include Complainant in the hiring process (Claim 7), and improperly excluded her from G&EC management and operations meetings (Claim 11). Claims 14 and 22 reflect Complainant’s opposition to assignments and instructions issued by S1. Complainant felt that S1 attempted to “trick” her into signing a new Performance Plan on January 27, 2017, based on the changed description of her duties (Claim 14) and that S1’s instruction that she obtain TMS privileges for an employee that was not under her supervision was improper (Claim 22). These common workplace occurrences amount to a reflection of Complainant’s disagreement with S1’s decisions concerning day to day operations, so they do not constitute harassment. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). Claim 6 alleges that S1 subjected Complainant to micromanagement, which we have long held to be a common workplace occurrence. See, e.g. Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (finding the complainant’s allegation that on daily basis, her supervisor monitored her work duties and time in and out of the office more closely than her coworkers amounted to a common workplace occurrence). Similarly, a supervisor questioning an employee about her duties is a common workplace occurrence. Odis D. Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Among other things, the alleged micromanagement includes S1 publicly critiquing Complainant’s work, and checking Complainant’s work with her peers, which was understandably caused Complainant to feel embarrassed and undermined. However the micromanagement she describes falls within the scope of S1’s authority and is a common workplace occurrence. For Claims 9 and 13 a review of common workplace occurrences is unnecessary, as the evidence of record precludes a finding of discriminatory or retaliatory intent. 2020000220 13 Regarding S1 “refusing” to meet with Complainant, or canceling the meetings she scheduled with Complainant without notice (Claim 9), S1’s November calendar appointments in the record, and the December 22, 2016 meeting to discuss Complainant’s FY16 PA are sufficient to show that S1 did not refuse Complainant’s meeting requests. As for cancellations, Complainant testified that “[S1] double books meetings, then regularly cancels them,” and “[S1] has the tendency to double book even though someone schedules her appointments.” Complainant acknowledged that she was not the only one impacted by S1’s regular cancellation of meetings. For instance, she testified that S1 was out of the office when she was scheduled to meet with Complainant and an HR Specialist, GS-11, (male, race not specified), then claimed to have been in the office, blaming Complainant’s failure to knock for her missing the meeting. Complainant indicated that S1 had made similar excuses for missing other meetings with individuals. By Complainant’s count, S1 canceled meetings without notice 10 to 20 times between November 10, 2016 and April 3, 2017. S1 testified that she was exceptionally busy during this time frame. Complainant explains that S1 professionally undermined her on January 20, 2013, by failing to include her on an email notifying her colleagues of her upcoming absence (Claim 13), even though Complainant required the information, as the point of contact for S1 in S1’s absence. She also indicates that S1 leaving her off of emails regarding her whereabouts is not an isolated incident, yet does not offer supporting evidence. Moreover, the AJ found that S1 credibly testified that leaving Complainant off of the email had been unintentional. With respect to S1's alleged comments in Claims 2, 10, and 15, the Commission has repeatedly found that a few isolated incidents of alleged harassment are usually insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995). A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). S1’s remarks during a meeting about Complainant’s work (Claim 2) occurred on July 2, 2016, with the next instance of harassing remarks by S1 on November 18, 2016, when S1 remarked that Complainant was “difficult to work with” in front of her peers and leadership (Claim 10). The next instance of alleged verbal harassment was in February 2017, when S1 allegedly accused Complainant of causing an employee to file a grievance (Claim 15). None of these alleged actions were accompanied by a concrete agency action or resulted in tangible harm to Complainant. See Backo. We find Complainant’s claims, are all common workplace occurrences or isolated incidents, so that even when considered together, they are not sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). In reaching this finding, we note that the terms “isolated incident” and “common workplace occurrence” are terms of art in a Title VII harassment analysis, and not intended to minimize the embarrassment, hurt, and stress Complainant describes as resulting from S1’s alleged actions. 2020000220 14 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 Final Order adopting the AJ’s finding that no discrimination occurred as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000220 15 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 December 14, 2020 Date