Twanna C.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120143082 (E.E.O.C. Feb. 23, 2017)

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

Twanna C.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143082

Hearing No. 510-2014-00028X

Agency No. 200I-0733-2013100421

DECISION

Complainant filed an appeal from the Agency’s final order dated July 31, 2014, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

The record indicates that Complainant, an Insurance Verification Clerk, filed her complaint,
dated December 18, 2012. The Agency, undisputed by Complainant, framed the complaint as
whether she was subjected to harassment based on race (Black/African-American) and religion
(Baptist) when:

(1) On April 18, 2012, her then supervisor (S1) failed to inform her manager (M1) that she
was having computer problems, M1 approached her in a rude and unprofessional
manner;

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.
0120143082

2
(2) On May 11, 2012, during a private meeting, S1 spoke to her in a hostile and
argumentative manner; criticized, intimidated and insulted her; threatened to write her
up; and blamed her for other employees’ poor quality of work;

(3) On May 21, 2012, S1 approached her in a hostile and disrespectful manner while she
was having a discussion with a Lead Insurance Verification Technician waving a paper
and screaming; and, S1 continued ranting and raging when S1 came to her cubicle and
pointed at her;

(4) On May 23, 2012, her name was removed from the Global email list for a former
supervisor’s farewell celebration;

(5) On May 29, 2012, in response to her request to have her password reset, S1 sent her an
email that was rude and argumentative;

(6) Since July 10, 2012, and as recent as December 19, 2012, she was required to perform
work during her 10-minute breaks on an on-going basis, while other employees were
not required to work during breaks;

(7) On July 17, 2012, S1 interrupted her in a hostile and disrespectful manner in front of
her new supervisor (S2), and later when S1 came to her cubicle, S1 continued arguing
and pointed at her;

(8) On July 17, 2012, S1 sent her an email, instructing her to remove puzzle pieces from
her desk and the email also stated “this is a professional environment;”

(9) On July 17, 2012, S1 harassed, humiliated and taunted her when she walked by her
cubicle and stuck her head in to peek inside and, talking loud and interrupting her
without saying “excuse me;”

(10) On August 29, 2012, S1 yelled down the hall towards her while she was having
a discussion with a billing supervisor and when S1 approached them, S1 interrupted
without excusing herself beforehand;

(11) On September 4, 2012, S1 walked into a meeting between her and an Insurance
Verification Technician without excusing herself and told her to leave;

(12) On October 2, 2012, S2 initially told her that S2 was not going to approve her
leave request but later approved the request;

(13) On November 2, 2012, she received an unfair evaluation on her performance
appraisal for FY12;

0120143082

3
(14) Since November 5, 2012, and as recent as January 30, 2013, the Lead Insurance
Verification Technician, described in claim (3), continued to interrupt her from her
work almost daily; and

(15) On November 16, 2012, her leave request was denied.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On July 18, 2014,
the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s
final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
an Insurance Verification Clerk, GS-6, for the Agency’s Florida/Caribbean Consolidated
Patient Account Center in Orlando, Florida and she had been working in that office since
January 3, 2011. The record indicates that Complainant’s supervisor was S1 from April 22,
2012, to July, 2012, and S2 from July, 2012, to March, 2013; and her manager was M1 since
March, 2012. S1, S2, and M2 acknowledged that they were aware of Complainant’s race but
not religion.

With regard to claim (1), S1 indicated that S1 was not aware of the incident. Specifically, S1
stated that S1 was not Complainant’s supervisor at the relevant time period at issue.

0120143082

4
With regard to claim (2), S1 indicated that S1 merely attended the meeting which was arranged
by Complainant’s former supervisor. S1 denied the incident as alleged and stated that it was
Complainant’s former supervisor, and not S1, who talked about the problems the office was
having with Complainant.

With regard to claim (3), S1 indicated that on the date of the incident, S1 went to Complainant
to ask for work related information and she became very defensive asking S1 to lower S1’s
voice and started to raise her voice. S1 indicated that Complainant was a very difficult person
to approach. S1 acknowledged that the Lead Insurance Verification Technician, identified by
Complainant, did come over and advised S1 to walk away. S1 indicated that S1 then went to
talk to M1 who told S1 not to address anything with Complainant and M1 would work with
her.

With regard to claim (4), S1 denied any knowledge of the incident. M1 indicated that
Complainant’s former supervisor’s farewell celebration was held outside of work and the
Global email list was not used.

With regard to claim (5), S1, agreed by M1, indicated that the email about Complainant’s
password was not intended to be hostile.

With regard to claim (6), S1 and M1 indicated that the 10 minute breaks were according to the
union guide book and they were used for employees for a 10 minute rest time for anyone
working on the computer and employees were to continue working on non-computer duties.
S1 indicated that Complainant was the only one who used the 10 minute breaks.

With regard to claims (7) and (8), management stated that the incidents involved Complainant’s
working on a puzzle during her 10 minute eye rest. During the relevant time period,
management indicated that S1 merely asked Complainant to put her puzzle away and told her
she should not do her puzzle during a 10 minute break; S1 did not argue with her; S1 sent her
an email about the puzzle on her desk; and the email was not argumentative. Management
indicated there were no employees other than Complainant who did a puzzle while at their
cubicle.

With regard to claim (9), S1 indicated that S1 had no knowledge of the incident as
Complainant alleged.

With regard to claims (10) and (11), S1, M1 and S2 indicated that they had no knowledge of
the alleged incidents.

With regard to claim (12), management indicated that Complainant’s leave request at issue was
not denied. When Complainant initially requested for leave at issue, S2 asked her if she could
reschedule her appointment to Tuesday, Wednesday, or Thursday since her requested leave for
Monday or Friday was a very busy day for the office.

0120143082

5
With regard to claim (13), S2 rated Complainant as fully successful for FY12 because S2
found problems with the quality of her work. Specifically, S2 indicated that Complainant’s
work had a number of errors and she was not verifying all of her accounts.

With regard to claim (14), management indicated that the Lead Insurance Verification
Technician, identified by Complainant, was responsible for conducting a report in the
mornings and it was his job to see how the employees were doing, such as if they needed help
or they were falling behind. Management stated that the Technician did the same process for
all employees.

With regard to claim (15), S2 indicated that Complainant’s leave request was denied because
so many people were already off for Thanksgiving and only one-third of the staff could be off
at a time. The Agency stated that leave was granted on a first come basis and that all the leave
that could be approved had been approved at the time of Complainant’s request.

After a review of the record, we agree with the AJ that even assuming for purpose of this
decision that Complainant’s version of events were true, all of the allegedly harassing events
were in the nature of normal day-to-day supervisory instructions and interactions between an
employee and her supervisors and were simply ordinary tribulations of the workplace under the
particular circumstances presented and were not sufficiently severe and pervasive so as to
constitute a discriminatory hostile work environment. It appears that Complainant and her
supervisors did not get along well and disagreed about the way they conducted business. There
is no evidence that the Agency’s actions (or of the Lead Insurance Verification Technician)
were motivated by any discrimination as Complainant alleged. After a review of the record,
we find that Complainant failed to show that there were any similarly situated employees not in
her protected groups who were treated differently under similar circumstances with regard to
the alleged incidents. Based on the foregoing, we find that Complainant failed to show that the
Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
0120143082

6

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The 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 (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
0120143082

7
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

February 23, 2017
Date