EEOC Appeal 2020000750

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mirta L.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000750
Hearing No. 430-2018-00019X
Agency No. 2004-0730-2016104582
DECISION
On October 8, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 26, 2019 final order concerning an equal employment opportunity (EEO)
complaint claiming 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
During the period at issue, Complainant worked as a Facility Revenue Technician, GS-7/5, at the
Agency’s Mid-Atlantic Consolidated Patient Account Center (“CPAC”), VA Medical Center
(VAMC) in Salisbury, North Carolina.
On November 3, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her on the bases of race (African-American), sex (female), and
in reprisal for protected EEO activity 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.

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1. 	on September 26, 2016, the CPAC Manager (“Manager”) conducted a verbal
counseling session for Complainant staying past her tour of duty on August 26, 2016.
Complainant alleged that the Manager gave her permission on August 26, 2016, to
complete her First Party (FP) and Third Party (TP) Fee encounters before going on
leave the following week;
2. 	on September 23, 2016 the Manager completed a co-worker’s FP Fee Basis assignment
and did not require him to complete the assignment when he returned to duty.
Complainant claimed the Manager did not assign Complainant’s work assignments to
her staff while she was on leave;
3. 	on September 21, 2016, the Manager walked into her office stating that she was sick
and would reschedule the counseling session for September 26, 2016. 	Complainant
claimed that she asked the Manager what the counseling session was about and received
no response.
4. 	on September 12, 2016, the Manager sent an email about the verbal counseling session
scheduled for September 21, 2016. 	Complainant claimed the Manager intentionally
sent her the email and immediately left the office for annual leave before she could
send a response;
5. 	on September 7, 2016, Complainant claimed that as soon as the Manager found out that
Complainant called the police about an incident that occurred on August 24 and 26,
2016, she concluded the second verbal counseling on September 26, 2016, out of
harassment and retaliation;
6. 	on September 2, 2016, the Manager assisted black males that she calls her work
husband even though she stated that on July 28, 2016, she was not going to assist
anyone to complete their work assignments;
7. 	on September 1, 2016, Complainant claimed that while she was on leave from August
29, 2016 to September 6, 2016, the Manager sent several emails telling her to complete
her delinquent assignments by a certain timeframe;
8. 	on August 29, 2016, the Manager sent an email to a co-worker asking him to complete
Complainant’s delinquent assignments. Complainant claimed that she informed senior
management that she was overwhelmed with a backlog of work assignments because
the Manager refused to provide her with coverage while she was on leave;
9. 	on August 26, 2016, Complainant claimed that the VAMC police was in the office to
follow up with an incident that had occurred on August 24, 2016. Complainant stated
that the Manager and her husband walked through the main entrance upstairs where her
office was located and after the VAMC police left, the Manager’s husband walked
down the hallway rattling his keys while making the following comments “I’m not the

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police,” “I’m not going to arrest you” and continued to make slur remarks as he
continued to walk down the hallway to [Manager’s] office. 	Complainant stated that
senior management was made aware of the incident and refused to remove her from
under the Manager’s supervision;
10. on August 24, 2016, the Manager sent her an email about time spent away from her
desk;
11. on August 24, 2016, the Manage continued to send her harassing emails, telling her to
complete the work assignments that should have been completed while she was on
leave from August 12, 2016 to August 22, 2016;
12. on August 11, 2016, the Manager continued to send her harassing emails telling her to
complete the assignments and to let her know when she was done completing the
assignments;
13. on August 4, 2016, Complainant stated that she continued to work on the backlog and
delinquent work assignments and notified the Manager as assignments were completed.
Complainant stated that she was constantly playing “catch up” because she does not
have enough coverage while she was on leave, and that’s why she was delinquent and
over worked;
14. on August 3, 2016, the Manager emailed Complainant that she needed to review a
Cancellation, FRM-Pending, and FRM-Review on a daily basis to ensure the requests
were not delinquent;
15. on August 2, 2016, she stated that while she was on leave, the Manager sent her an
email message that she needed to review a Cancellation, FRM-Pending, and FRM-
Review on a daily basis to ensure the requests were not delinquent. She alleged that
the Manager required her to have additional training on this process and asked for her
to provide a time and date she was available for training. Complainant stated that she
replied to the mail stating she was constantly playing catch up due to because she had
no one to cover her while she was on approved leave;
16. on July 29, 2016, she claimed while she was on leave from July 29, 2016 to August 2,
2016, the Manager sent her an email stating she needed to complete the delinquent
assignments by August 3, 2016 that was pending on July 29, 2016. 	Complainant
claimed that on July 28, 2016, the Manager made the comment in front of other co-
workers she denied her leave request;
17. on July 27, 2016, the Manager sent her an email telling her to complete an assignment
by 10:00 a.m. knowing that she did not report to work until 8:00 a.m.;

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18. on July 26, 2016, Complainant claimed that the Manager did not want an identified co-
worker assist with completing Complainant’s assignments while she was on leave;
19. on July 25, 2016, the Manager called her into the office to conduct a verbal counseling
less than 30 days of her becoming her supervisor;
20. on July 22, 2016, Complainant asserted that she was called into a meeting, and was
accused of being insubordinate by the Manager;
21. on July 21, 2016, Complainant alleged she emailed the Manager twice, respectfully
asking her to provide details in regard to the insubordinate actions that occurred prior
to the session. She claimed that she told the Manager it was her right to know so she
could defend the defamation of her character, reputation, and employment record.
Complainant noted that the Manager replied each time stating she would find out the
details of her insubordinate actions at the mandatory session; and
22. on July 8, 2016, Complainant claimed she was working overtime when the Manager
accused her of being insubordinate, and she asked her how she was being insubordinate
and the Manager did not reply to her.
After its investigation of the formal complaint, the Agency provided Complainant with a copy of
the report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. Thereafter, the AJ notified the parties sua sponte of an intent to issue a
decision without a hearing. The Agency responded to the notice. While Complainant’s response
was untimely, the AJ reviewed and considered the substantive content of her reply. 	The AJ
subsequently issued a decision by summary judgment in favor of the Agency. 	The Agency
thereafter issued the instant final order implementing the AJ’s decision.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
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
(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) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s

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determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
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. Here, however, Complainant did not establish such a dispute.
Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
During the relevant period Complainant was a Ramp Clerk at the Agency’s Mid-Carolina P&DC
in Charlotte, North Carolina.
The Manager (Caucasian female) denied subjecting Complainant to harassment. She also noted
that Complainant did not tell her that she felt she was being subjected to harassment.
Regarding Complainant’s allegation that she received a counseling through email, the Manager
asserted that she does not actually “have an official counseling regarding this time spent away.
There’s no official counseling. There was an actual e-mail sent to her on why she had been away
from her desk for 60 minutes…and at no one time during this period had she asked permission to
be away from her job that she is required to do. So that’s the reason I had asked her where she
was that day.” 	The Manager noted that Complainant told her that she was in another staff
member’s office.
In addition, the Manager noted that Complainant informed the Regional Revenue Manager that
she was subjected to harassment by her, and he informed Complainant “that I was not harassing,
discriminating or being hostile to her at all.”
Regarding Complainant’s assignments, the Manager stated that it was her responsibility to ensure
that Complainant is capable of doing her position. 	She stated that the email she sent to
Complainant to complete delinquents “that were needed to be processed were only part of her
facility revenue duties. In regard to asking Complainant to complete her task, the Manager stated
that she is required up to five hours to complete. The Manager further stated that she did not feel
that it was an unreasonable timeline for Complainant to complete her delinquent assignment.
The Manager further noted that while Complainant was on leave from July 29, 2016 to August 2,
2016, she emailed Complainant, asking her to complete her delinquent assignments by August 3,
2016. She stated that she did not see this as an unreasonable assignment as well, and “I feel that
if the facility revenue technician is competent at the job that she or he does, this assignment is not
unreasonable carrying out her job, her duties as the facility revenue technician.”

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The Manager acknowledged giving Complainant a verbal counseling in July 2017. She explained
that she had emailed Complainant to see if she could get out of the program “that I was trying to
get into at that time and that’s what prompted me to pick up the phone to call her. When I didn’t
get a response from the phone call, I actually walked down to knock on her - - knock on her door.
She did not respond at that time. 	I came up and tried to call her again. 	So there - - there was
several attempts at trying to get in touch with this staff member at that time on July 8 th [2017].”
Specifically, the Manager stated that regarding 	this program, she was responsible for sending
documentation to an insurance company to receive information in order to bill claims. She noted
it is a shared job “among all the staff to include me. And I was attempting to copy the data and
make a spreadsheet to send to the carrier. I could not do that because I couldn’t get in touch with
[Complainant] to get out of the - - the shared drive that all staff in here share.” The Manager stated
that she felt that it is an employee’s responsibility to answer to her or his supervisor “at that time.
When there was no answer from [Complainant], that’s where the insubordination came into play.
Now, I did not discriminate against - - towards her at all. I would not ask her to do anything that
I would not ask any other employee in this establishment.”
The Manager noted Complainant’s claim that the Manager’s husband made remarks which made
Complainant feel fearful for her safety. However, the Manager stated that on August 26, 2016,
her husband called stating that he wanted to have lunch at the facility “which I agreed. He came
up to see me, entered the door, came straight to my office, went to my office, we talked about
where we were going to eat. We exited the office, exited the building and went to the facility for
lunch. At no one time did he make any kind of comments regarding any employees on this hallway
at all…because of the building, the way it is, it’s a very old building. So therefore, when you do
talk down the hallway, your voice echoes. At one time did I hear my husband make any kind of
comment towards any of my staff.”
Furthermore, the Manager stated that she became aware of the fact that Complainant had called
the VA Medical Center Police Department and that the Sergeant “did tell me that that police report
was strictly administrative. So, therefore, I was not aware of anything after that was made.”
With respect to Complainant’s allegation that on July 3, 2017, she overheard unfavorable
comments made by the Manager and a named female employee, while laughing and talking quote,
“we got rid of one. One down. One more to go,” making references to her, the Manager stated “I
do not have an answer to that question. I can only be responsible - - for my actions in helping that
employee that day and hoping that all my staff in here have available equipment to do their
jobs…being able to give you an answer on that question, I don’t have an answer.”
The AJ noted that the Regional Revenue Manager (African-American male) stated that during the
relevant period, he was Complainant’s second-line supervisor (“Supervisor 2”). He stated that on
August 24, 2016, he received several emails from the Manager counseling Complainant about time
spent away from her desk. Supervisor 2 explained that working for the federal government “you
get two 15-minute breaks and then you get your 30-minute lunch period…I can kind of understand
why… [Manager] was looking for [Complainant].

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And I can kind of understand why she was wondering not only - - in a negative way, but just being
concerned about her, making sure that nothing happened to her.”
With respect to Complainant’s allegation that on September 26, 2016, she received a verbal
counseling for staying past her tour of duty on August 26, 2016, Supervisor 2 stated “my
knowledge of that was an email was sent saying that she had worked past her normal duties, her
normal tour, which… whenever they do that, you know they have to clear that with the - - with the
managers.” He noted that Complainant did not notify the Manager that she was working past her
normal tour. Supervisor 2 stated because Complainant worked past her normal tour, “we ended
up having to pay her overtime for that.”
Moreover, Supervisor 2 noted that everything that the Manager did, Complainant “complained that
she was subjected to a 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 a protected basis – in this case, her race, sex and/or prior EEO activity. Only
if Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
After careful consideration of all Complainant’s claims and the evidence of record, there is
adequate support the AJ’s determination that the responsible management officials clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare
assertions, Complainant has simply provided no evidence to support her claim that her treatment
was the result of her race, sex and/or prior EEO activity. A case of discriminatory hostile work
environment is precluded based on our findings that Complainant failed to establish that any of
the actions taken by the Agency were motivated by her protected basis. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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.

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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
September 29, 2020
Date