Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 26, 2014

0120131757 (E.E.O.C. Aug. 26, 2014)

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

Complainant,

v.

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

Appeal No. 0120131757

Agency No. 2003-0589-2010104116

DECISION
On March 18, 2013, Complainant filed an appeal from the Agency’s February 25, 2013 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency’s final decision.

At the time of events giving rise to this complaint, Complainant worked as an education
technician, GS-1702-09 within the education service of the agency’s medical center in Kansas
City, Missouri. On August 24, 2010, Complainant filed an EEO complaint in which she set
forth two claims of employment discrimination. In her first claim, Complainant alleged that
her immediate supervisor, the Chief of the Education Service (S1) and her second-line
supervisor, the Associate Director of the medical center (AD) discriminated against her on the
bases of race (African-American) and sex (female) by not promoting her to the position of
administrative officer (AO), GS-0341-11 on July 21, 2010. In her second claim, she alleged
that, because of her race, sex and prior EEO activity. S1 subjected her to a hostile work
environment between November 2009 and August 2010.

The Agency investigated both claims and provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge. On February 25, 2011, Complainant requested a final decision. Prior
to issuing its decision the Agency conducted a supplemental investigation on the non-promotion
claim but failed to provide Complainant with a copy of the supplemental investigative report
(SIR), or otherwise notify Complainant of her right to request a hearing at that juncture. The
agency subsequently issued its final decision finding no discrimination, and Complainant
appealed. In v. Department of Veterans Affairs, EEOC Appeal No. 0120121105
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(May 22, 2012), request for reconsideration denied

EEOC Request No. 0520120480 (October
24, 2012), the Commission vacated the Agency’s final decision and ordered the Agency to
provide Complainant with a copy of the SIR and to afford Complainant notice of her right to
request a hearing. The Agency did so, and in accordance with Complainant’s request, the
agency issued its final decision for the second time, again concluding that Complainant failed
to prove that the Agency subjected her to discrimination and reprisal, as alleged.
Non-promotion

The record includes documentation pertaining to two desk audits. The first audit was for an
AO position in the education service dated August 19, 1984, and signed by S1’s predecessor,
the former education chief. IR 189. The position classification was approved by a human
resource specialist with the notation that the position was properly classified as an
administrative officer, GS-341-9. IR 197. According to an email from the facility’s EEO
program manager dated August 24, 2011, and included in the SIR, the position was never
filled. The supplemental investigation also revealed that a desk audit had been performed on
Complainant’s education technician position in March 2005, in order to determine whether the
position classification could be reclassified as an AO. This audit was also signed by the former
education service chief. At that time, Complainant’s position was at grade GS-7. According
to the results of the desk audit, the position was upgraded from GS-7 to GS-9 as a result of
accretion of duties, but remained classified as an education technician. The EEO program
manager noted in her email that an upgrade to GS-11 was not approved.

In her affidavit, Complainant stated that on May 17, 2010, she submitted a draft position
description to the AD in order to have her position upgraded from GS-9 education technician to
GS-11 AO. Complainant also averred that at a meeting between her, S1, and the AD that took
place in the AD’s office on July 21, 2010, S1 and the AD denied her request for the upgrade.
IR 107-109. When asked why she thought S1 did not change her title, she replied, “(S1’s) got
a thing about keeping certain people lower [but] * * * I don’t know why.” When asked why
she thought S1’s decision not to change her position description was based on her being a
female, Complainant replied, “Because I don’t think she thought that anybody else was going
to do anything about it.” IR 113.

S1 averred she informed Complainant that she did not have the authority to promote her to a
GS-11 AO position because the education service did not have an AO. She stated that she
explained this situation to Complainant and encouraged her to prepare a position description to
take to the AD. She also stated that she found the position description for an AO dated August
19, 2004, and that she showed it to Complainant in order to counsel her as to how she could go
about getting the promotion she wanted. S1 informed Complainant that her options were to get
another desk audit or wait for an AO position to be announced so that it could be open to
competition. S1 further averred that at the July 21 meeting, the AD informed Complainant
that the position would remain classified as an education technician, but that she and S1 should
work with human resources to get the position upgraded to GS-11. IR 144-48. S1 pointed out
that Complainant had been trying to get promoted for a long time, and that she stepped in to
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try to help Complainant achieve her promotion. IR 165. She also characterized Complainant
as an exceptional employee, noting that every year she had been her supervisor, Complainant
had gotten an outstanding performance evaluation. IR 164.

The AD averred when Complainant and S1 came into the meeting, he told them that it was
S1’s responsibility to work with human resources to determine whether Complainant’s position
needed to be reclassified or upgraded. He urged them to send Complainant’s position
description to human resources, and that he would support the classification and grade that
human resources deemed appropriate. The AD also emphasized that there had never been an
AO in the education service, and that based on his understanding of the organization, there was
never a need for an AO. IR 169-71. Consequently, the AD told Complainant to write the
position description for the education technician position, not the AO position. IR 164.

A specialist in the human resources office who had conversed with S1 on the matter stated in
her affidavit that S1 was very supportive of Complainant and was eager to get Complainant’s
request processed. IR 184. There are no indications in the record, however, that a desk audit
on the upgrade and reclassification of Complainant’s position to GS-11 AO was ever carried
out. Both the AD and the human resource specialist stated that Complainant had changed her
mind a number of times as to whether she wanted the AO title. IR 175, 184.

When asked whether she ever heard S1 make a racial comment, Complainant stated that S1
remarked that there was an Asian employee in the office who wanted to be White, but
acknowledged that S1 made this remark in 2008, before she became Complainant’s supervisor.
IR 105-06. S1 averred that she could not recall the incident. IR 150. Complainant also
averred that the previous education service chief tried to block her promotion because she was
a black female. IR 110-11. She stated that the former chief told her that as a black female she
made enough money and didn’t deserve more promotions because of her being black and
female. IR 106-07. Complainant stated that this individual retired in 2008. IR 105. S1
averred that Complainant’s ongoing efforts to get a promotion were an issue with her
predecessor as well. She stated that she was aware that Complainant had accused the former
education service chief of making a racial comment, but that she looked at her predecessor as
being “a little arrogant,” but not racially motivated. IR 165. She also expressed shock that
Complainant would accuse her of discrimination. IR 165.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination or reprisal. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with, however, since the Agency has
articulated a legitimate and nondiscriminatory reason for not promoting Complainant to the
position of GS-11 AO. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-
17 (1983). According to S1 and the AD, there was no AO position at grade GS-11 within the
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education service, nor was there a need for such a position. There was an AO position at GS-
9, but neither the AD nor S1 saw a need to have that position filled.

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. 143 (2000); Shapiro v. Soc. Sec. Admin.

, EEOC Request No. 05960403
(Dec. 6, 1996). Here we find that, far from being biased against Complainant, S1 was in her
corner, acknowledging her sustained outstanding performance and trying to assist her in
obtaining a promotion to GS-11 as an educational technician, not an AO. S1’s statement that
she attempted to help Complainant obtain a promotion to GS-11 was corroborated by the
affidavit of the human resource specialist. The AD too expressed support for Complainant
getting promoted, but followed established procedures in urging Complainant and S1 to work
with human resources to make it happen. Complainant has not presented any documents or
sworn statements other than her own that contradict the statements made by the AD and S1 or
undermine their credibility. The only evidence of discriminatory intent that Complainant
submits are her uncorroborated assertions regarding comments allegedly made by S1 and her
predecessor. As to S1’s alleged comment about an Asian trying to be white, even if S1 did
make that statement, it was long before she became Complainant’s supervisor and the
connection to Complainant being promoted is tenuous. Regarding the comment allegedly made
by the former education services chief, S1 opined that she did not think that her predecessor
harbored any animosity toward Complainant because of her race or gender. Moreover, the
fact that the former chief signed both the 2004 desk audit for the AO position and the 2005
desk audit for the education tech position which resulted in Complainant getting promoted from
GS-7 to GS-9 further undermines her contention that this individual was motivated by a
discriminatory animus. Even if the former chief said what Complainant claimed he said, there
is not a scintilla of evidence connecting him to the non-promotion at issue in the instant
complaint. Accordingly, we agree with the agency that Complainant has not met her burden of
proof on the issue of her failure to obtain a promotion to GS-11 AO.
Hostile Work Environment

In order to establish a claim of hostile work environment, Complainant must show that: (1) she
belongs to a statutorily protected class and/or engaged in prior EEO activity; (2) she was
subjected to unwelcome verbal or physical conduct; (3) the unwelcome conduct complained of
was based on her protected bases and/or prior EEO activity; (4) the unwelcome conduct
affected a term or condition of employment and/or had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to the employer. EEOC
Appeal No. 0120084008 (June 6, 2014). The conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Sys. Inc.

, EEOC Notice No. 915.002 at 6 (March 8, 1994).
Complainant identified the following incidents in support of her claim of hostile work
environment:
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1. In November 2009, S1 sent complainant threatening emails;

2. In March 2010, S1 did not allow complainant to approve training requests;

3. On May 17, 2010, S1 taunted and was combative with Complainant during a
meeting with the Associate Director (AD) of the facility;

4. On May 18, 2010, S1 told Complainant not to attend morning meetings unless
requested;

5. On May 18, 2010, S1 did not allow Complainant to be the education service point
of contact for a patient-centered grant;

6. On July 7, 2010, S1 did not offer Complainant contact technical representative
(COTR) training;

7. On July 26, 2010, S1 removed Complainant from the AO mail group; and

8. On August 18, 2010, Complainant found out that S1 had excluded her from the
budget process.

Complainant has established she is a member of two statutorily protected groups. With respect
to incidents (7) and (8) Complainant added reprisal as a basis, claiming that S1 retaliated
against her as soon as she had become aware that Complainant had contacted an EEO
counselor in connection with the instant complaint. IR 106-07, 143. She has therefore
satisfied the first prong of the hostile environment analysis. We will assume, for purposes of
analysis, that Complainant satisfies the second prong as well. We will now look at each
incident individually as well as collectively in order to ascertain whether she can satisfy the
remaining prongs.

November 2009 emails: Complainant averred that S1 sent her two emails which she
characterized as threatening. IR 114-16. The first had on its subject line, “per our
conversation,” and the second had, “education” or “AO for education.” In an email addressed
to Complainant under the subject, “RE- Per Our Conversation,” and dated February 12, 2010,
S1 stated that her appraisal did not reflect anything negative and that all she had ever conveyed
to Complainant were positive remarks. IR 211. In an email to Complainant dated December
9, 2009, under the subject heading, “RE: Edu Tech or AO for Education,” S1 indicated that
she would follow up on Complainant’s request to ensure that her position description
accurately reflects her duties and responsibilities. S1 stated in the email that she would send
what Complainant had submitted to PMC and see how it turns out. IR 213. When asked by
the investigator why she considered these emails to be threatening, Complainant replied,
“because they were threatening.” IR 115. When asked to provide other examples of
threatening emails, complainant did not do so. IR 116. When asked about race and sex,
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Complainant stated that S1 was a powerful woman in a powerful position and that S1 felt she
could get away with it because Complainant was a black female. IR 119.

March 2010 Training Requests

: Complainant averred that S1 had taken the task of approving
training requests away from her and that this action would hinder her chances of promotion. IR
121-22. She maintained that S1 had given the authority to approve training requests to a GS-6
education technician. IR 123. S1 responded that she had asked the other education technician
to assist Complainant in processing some of the requests, pointing out that on more than one
occasion prior to the other technician coming aboard, there were instances of class participants
being dropped because Complainant did not properly process their paperwork. IR 153-56.
Moreover, S1 denied that her action would have any impact on Complainant’s chances of being
promoted. IR 156.
May 17, 2010 Taunting

: Complainant averred that after the meeting with the AD,
Complainant returned to her office to work on the position description when S1 came in and
said, “let’s see if it works,” and that Complainant considered S1 to be taunting and combative.
IR 126. S1 remembered the occurrence differently. She stated that after the meeting she
asked Complainant how she thought the meeting went, and that Complainant replied that she
thought it went okay. S reiterated that she did not mean anything negative. IR 157. The AD
averred that both S1 and Complainant behaved professionally in their responses to his
questions during the meeting that took place in his office that day. IR 171-72.
May 18, 2010 Morning Meetings

: S1 had sent Complainant an email on May 18, 2010, in
which she stated, “unless I ask you specifically, there is no need for you to attend these
morning meetings, especially if I am there.” IR 128-29, 217. S1 and the AD both stated that
the morning meeting was for services chiefs and managers, and that S1 would ask one of her
staff members to go whenever she could not attend. IR 158, 173. She also stated that she
would try to rotate people as a point of contact, asking them if they could attend, and that
Complainant had attended two or three of these meetings. S1 reported that Complainant had
told her that she liked those management meetings and that she would keep going. It was at
that point that S1 sent Complainant the email telling her that it was not necessary for her to go
to the management meetings. IR 158-59.
May 28, 2010 Point-Of-Contact

: Complainant averred that S1 did not allow her to serve as the
education service’s point of contact for a very large grant slated for patient care. IR 129-30.
S1 responded that the only tasks required for disbursing the grant money were clerical in
nature, and that she asked one of the instructors to do it. IR 161-62. When asked by the
investigator whether not allowing Complainant to do this work would affect her chances for
promotion, S1 replied that it would not have affected anyone’s chances of being promoted. IR
161.
July 7, 2010 Denial of COTR Training: Complainant averred that S1 did not offer her COTR
training. IR 132. S1 responded that she did not have the authority to approve or disapprove
training, and that the business office made that decision. IR 162-63.
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July 28, 2010 Removal from AO Mailing Group: Complainant averred that S1 had her
removed from the AO mailing group, and that this action affected her career. IR 134-35, 218.
Complainant had been on the AO mailing list until July 26th, under the assumption that HR
might be able to reclassify her position and upgrade it to GS-11. On July 26th

, Complainant
found out that she would no longer be considered an AO. IR 164. S1 stated that Complainant
told her at that point that she no longer wanted to be an AO, and accordingly, S1 had her
removed from the AO mailing group so that she would not be privy to information not related
to her job performance. IR 163-64.
August 18, 2010 Removal from Budget Process

: Complainant averred that S1 excluded her
from the education service’s budgeting process. IR 136-39. S1 responded that she was
responsible for the budget, not Complainant, and that Complainant and the other staff members
were supposed to provide her with the necessary information, and that sometimes she would
ask Complainant to attend budget meetings with her in case she had a question. IR 149, 153.
164-65. When asked by the investigator why Complainant felt that she was the budget person,
S1 replied that at one time, Complainant had tried to get upgraded as a budget analyst, but the
classifier in human resources said that she was not a budget officer. IR 165.
After reviewing Complainant’s hostile environment claim it its entirety, we find no evidence
that any of the incidents described in this complaint are connected with Complainant’s race or
gender. As to reprisal with respect to the incidents that took place after the July 21st non-
promotion, we will assume that Complainant satisfied the third prong of the hostile
environment analysis. However, we can find nothing about any of S1’s actions toward
Complainant in all of the incidents, either individually or collectively, that could be interpreted
by a reasonable person in Complainant’s circumstances as engendering a hostile work
environment. The emails that Complainant characterized as threatening appeared to be
encouraging. As to the training requests incident, S1 had apparently given Complainant some
logistical support in the form of her co-worker. After the meeting on May 17th, S1 encouraged
Complainant to continue to try and get the upgrade she wanted. As to the incident on May
18th

, S1 merely advised Complainant that her presence was not required at management
meetings. Concerning the patient care grant, S1 had determined that the distributions of
funding from the grant was clerical in nature and did not require the services of an education
technician. With respect to COTR training, S1 was not involved in the decision to approve or
disapprove training; that responsibility fell to the business office. As to the last two incidents,
Complainant has not presented any documents or sworn statements tending to show that she
was entitled to remain on the AO mailing group or be centrally involved in the budget process
for the education service.
Complainant had expressed concern at several points in her affidavit that S1 was taking job
responsibilities away from her in a way that would negatively impact her chances for getting
promoted. But S1 denied that this was the case, and had already acknowledged that
Complainant was an exceptional employee. Complainant has not shown that any of S1’s
actions in these incidents would have undermined her chances for promotion. None of these
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incidents reflect an express or implied threat on the part of S1 to harm a term, condition,
benefit, or privilege of Complainant’s employment. We therefore find that Complainant was
not subjected to harassment.

CONCLUSION
Based on a thorough review of the record and for the foregoing reasons, we AFFIRM the
Agency’s final decision finding no discrimination or reprisal.

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 (November 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.
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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

Date
August 26, 2014