EEOC Appeal 2020000629

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eura B.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000629
Hearing No. 560-2018-00235X
Agency No. 200J-0647-2017103463
DECISION
On September 17, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 16, 2019, final decision (FAD) concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Technician,
GS-5, at the Agency’s John J. Pershing Medical Center, facility in Poplar Bluff, Missouri.
On August 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability2 (vision and hearing impaired), age (53), and reprisal for prior
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.
2 For purposes of this decision the Commission assumes without finding that complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).

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1. On June 1, 2017, Complainant learned she would not receive a cash award for her
2015/2016 performance evaluation; and
2. Between April 16, 2017 through May 16, 2017, Complainant did not receive timely
performance standards, her performance standards did not reflect her job duties,
and she was told to sign a blank sheet of paper in lieu of her 2017 performance
standards.
At the conclusion of the investigation, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged. Specifically, the Agency found that Complainant’s supervisor (no
claimed disability, 61 years) averred that, with regard to the cash award, Complainant received a
“Fully Successful” evaluation and only employees receiving a rating of “Excellent” received
awards. With regard to claim 2, the supervisor averred that the delay in Complainant’s performance
standards was due to “procedural reviews” and not discrimination, that the standards did reflect
Complainant’s duties and that Complainant was not told to sign a blank sheet of paper. The Agency
further found that Complainant failed to establish that the Agency’s articulated reason for its
actions were pretextual.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

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This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant
established her prima facie case of discrimination.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action. With
regard to claim 1, Complainant’s supervisor averred that the factor she used to determine whether
employees received cash awards was whether they went “above their assigned duties.” We note
that the investigator did not ask the supervisor why Complainant did not receive an award, but
instead asked the supervisor to “[p]lease name any and all employees who received a cash reward
in 2014/2015 and 2015/2016 for a performance rating of ‘Fully Successful’,’ to which the
supervisor replied, “none that I am aware of.” The supervisor subsequently provided an unsworn
statement wherein she stated that, “since I have worked for the department (18 years) if money
was given for an award it was only given for excellent and outstanding evals. Never has a fully
successful evaluation received money.”
With regard to claim 2, the supervisor averred that Complainant’s performance standards were
given to Complainant “at the time of her evaluation” and that the performance standards are written
so that they can apply to multiple positions, “example Technologist, MSA, Health Technician.”
The supervisor further averred that “several” of Complainant’s listed duties “no longer apply.
Changes are due to automation,” giving as an example the listed duty of signing students in and
out, S explained that “radiology students . . . sign their self in on their computer,” and that
Complainant “does the duties she is assigned well. She was a darkroom/file room technician for
years. But with the ever-changing technology her duties have decreased.” Finally, the supervisor
denied that Complainant was told to sign a blank sheet of paper in lieu of her 2017 performance
standards.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record, we find that Complainant has failed to
meet this burden. With regard to claim 1, Complainant averred that, “[a]ll of these employees in
my department I think received bonuses. . . . I'm the only employee left, in the department, I believe
that did not get one.” The record shows, however, that besides Complainant, three other employees
out of a total of fifteen working under her supervisor’s supervision also did not receive awards.
We note that Complainant did not claim that otherwise similarly situated employees outside of her
protected bases received cash awards for “fully successful” ratings and we further note that in her
rebuttal statement, Complainant admitted that only employees rated “exceptional” received cash
awards. When asked why she believed she did not receive a cash award for her two most recent
evaluation periods, Complainant averred that the supervisor:

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[W]as too busy seeking way to abolish my job. Continually changes [sic] to my
evaluation standards without informing me or the Union of the changes. [S] refuses
to present me with an accurate Position Description to evaluate me on. When I
pulled my evaluations from my eOPF (electronic personnel file) dating back to
2012, I noticed, my 2013 was not uploaded in my eOPF, it was not signed and all
of my evaluations since that time frame were reflective of discrimination towards
me. 2013/2014-The date signed on all the evaluations, the Front Page, the mid-
term, and the end of year evaluation all have the same date 12/4/14. She kept the
evaluations past the 45-day contesting period to prevent me from be able to contest
them. 2014/2015-Evaluation mid-term and end of year were both signed the same
date, 10/30/2015. 2015/2016 Evaluation has no mid-term signed only end of year
evaluation on 11/21/2016. All evaluation elements continue to change with no job
description to rate me on. All ratings are subjective and I have no way to attain an
"exceptional rating” or to know how an exceptional rating is attainable.
Complainant further testified that despite the supervisor’s testimony that Complainant could
receive a cash award if she performed “special projects,” Complainant averred that;
I'm not aware of any employee doing a special project to receive a cash award. Even
in 2014/15, I imported patients' images CD a box of them. We got a new program
to upload patients' CD to. [The supervisor] told me it was part of my job, in the
evaluation. Importing was never a part of my job. This is going above and beyond
my P.D.”
With regard to the timeliness of Complainant’s performance standards, we note that Complainant’s
rebuttal affidavit wherein she pointed to the supervisor’s statement that she could not provide the
dates the signed and provided to Complainant each of her employee evaluations because “HR has
these. I do not. Sorry,” does not rebut the supervisor’s testimony, which was that she gave
Complainant her performance standards at the time she gave Complainant her evaluation.
With regard to whether Complainant’s performance standards reflected her job duties,
Complainant averred that the supervisor:
[H]as taken many of my job duties away from me without consultation and gives
these duties to younger, non-disabled, higher paid, employees, including giving my
Schedule A job duties to the assistant supervisor. This means she is taking my
bargaining unit duties away from me and is giving them to a higher paid assistant
supervisor. . . . A younger employee and assistant supervisor - was given my PACs
System duties, including importing outside images into the Computer System, my
VISTA imaging correction package, and my TMS education coordinator duties
were given to the assistant supervisor. . . . [In] March 2016 [the supervisor] worked
with HR to produce a false job description that made it appear I no longer had any
duties within the radiology department. This job description was never graded but
she told me it would not grade out to a GS4 level. This is another lie. [The

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supervisor] never submits any accurate job descriptions. The union, my supervisor
and myself jointly drafted an accurate job description, all three of us initialed the
final document, and [the supervisor] was supposed to send off for grading, but she
never did. . . . As of 2015, [the supervisor] uses ungraded email versions of job
descriptions to support her claims.
Complainant further provided examples of her 2017 performance standards that, according to
Complainant, showed changes made by the supervisor after Complainant had received them from
S. Finally, Complainant provided affidavits from various coworkers who averred that Complainant
performed duties outside of her performance standards. Complainant further submitted
contemporaneous email exchanges between herself, the supervisor, and union officials addressing
Complainant’s contention that her performance standards did not reflect her job duties.
Following a review of the record we find that Complainant has not shown, by a preponderance of
the evidence, that discrimination or reprisal occurred. The record shows that for a number of years,
Complainant has felt that her actual job duties are not reflected in her position description and that
the supervisor’s evaluations of her work are not based on the work Complainant actually performs.
Complainant further believes the supervisor is removing duties so as to get rid of Complainant.
We note, however, that even assuming Complainant is right, she has not shown that the
supervisor’s articulated reason for not her actions are a pretext for discrimination or reprisal for
Complainant engaging in prior EEO activity. We note in this regard that Complainant averred that
she believed the supervisor’s actions where in reprisal for Complainant “requesting a job
description and advancement.” Complainant has not met her burden of establishing that the
supervisor harbored any animus towards Complainant’s protected bases or that her actions were
based on age, disability, or in reprisal for prior EEO activity.
Finally, to the extent that Complainant is alleging that she was subjected to a hostile work
environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993) that complainant's claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case
of hostile work environment is precluded based on our finding that Complainant failed to establish
that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory
motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21,
2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination or
reprisal occurred, and we AFFIRM the FAD.

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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
May 27, 2020
Date