EEOC Appeal 2020001559

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virgina K.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001559
Hearing No. 460-2019-00162X
Agency No. 2003-0580-2018104452
DECISION
Complainant timely 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 December 17, 2019,
final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUES PRESENTED
The issues are whether: (1) the Administrative Judge demonstrated bias in favor of the Agency;
and (2) substantial evidence supports the Administrative Judge’s finding that Complainant did not
establish that the Agency subjected her to a hostile work environment based on her age or sex, or
in reprisal for protected EEO activity.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the
Agency’s Michael E. DeBakey Medical Center in Houston, Texas, through July 8, 2018, when she
became an Acquisition Utilization Specialist. Report of Investigation (ROI) at 59,74.
Complainant stated that since 2016, the Chief Financial Officer (CFO) (age 57, female) gave her
assignments and pressured her to complete them immediately. Complainant stated that this
additional work was intentionally given to her on her busiest days. ROI at 61. Complainant stated
that since June 2016, she became aware that her files and reports were being deleted or changed.
Complainant stated that CFO, and her first-line supervisor (S1) (age 37, female), accessed her
computer, without authorization, to read her emails and tamper with her work. ROI at 63-4.
Complainant stated that on June 20, 2017, S1 ran towards Complainant and asked if she left the
door open. Complainant stated that S1 yelled at her, and she thought that S1 was going to hit her.
ROI at 65. On November 2, 2017, Complainant was given a Fully Successful performance rating.
Complainant stated that CFO gave her the rating for failing to meet critical elements in her
performance standards, but later changed her rating to an Outstanding. ROI at 156,66,68.
Complainant stated that from November 2017, through July 2018, S1 left out relevant information
when training her on how to prepare the Care in the Community report. Complainant stated that
when she asked S1 questions, S1 told Complainant to “figure it out,” and always gave her different
information. ROI at 68.
Complainant stated that on January 11, 2018, CFO sent her assistant three times to Complainant’s
desk when Complainant had not opened CFO’s Outlook message. ROI at 71. Complainant stated
that one of her responsibilities was to provide a Status of Allowance report to the Chief of
Accounting (CA). Complainant stated that on January 17, 2018, she gave CA a copy of the report,
and he responded that S1 had already given him a copy. Complainant stated that when she
compared her copy to S1’s copy, she noticed that some numbers and names were missing from her
copy. ROI at 69.
Complainant stated that in April 2018, S1 gave her a “less than fully successful” rating on her mid-
year performance evaluation. ROI at 72. Complainant stated that on April 24, 2018, CFO and S1
accessed her computer and deleted some of her completed work. ROI at 73. Complainant stated
that on July 18, 2018, following her promotion to an Acquisition Utilization Specialist on July 8,
2018, S1 had Complainant’s user account profile deleted, which deleted her emails and saved files.
ROI at 74.
Complainant stated that in October 2018, she submitted an application for a travel card, and that it
was not processed until December 2018. Complainant stated that she believed that CFO and S1
were responsible for the delay because they were the approving officials. ROI at 78-9.
Complainant stated that on January 13, and 14, 2019, she became aware that CFO, and other travel
staff, delayed/failed to purchase tickets for her travel on January 14, 2019. ROI at 80.

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Complainant stated that on January 31, 2019, she learned that S1 denied her request to stay on
travel until February 16, 2019, after her training ended at 4:30 p.m. on February 15, 2019. ROI at
82.
EEO Complaint
On September 7, 2018, Complainant filed an EEO complaint alleging that the Agency subjected
her to a hostile work environment on the bases of sex (female), and age (55), and in reprisal for
prior protected EEO activity when:
1. 	from 2016, and continuing, CFO tasked Complainant with assignments that she knew could
not be completed, giving Complainant multiple time-sensitive projects due within the same
time period;
2. 	from June 2016, and continuing, Complainant became aware that her work files on her
computer were being deleted and/or numbers in reports were being changed;
3. 	during the summer of 2017, S1 ran towards Complainant and yelled, asking where she had
been and inquired if Complainant had left the door open;
4. 	in November 2017, CFO rated Complainant “Fully Successful” when she failed to meet
critical elements in her performance standards;
5. 	in November 2017, S1 intentionally left out information when providing training to
Complainant on how to prepare the “Care in Community” report;
6. 	on or around December 28, 2017, Complainant became aware that numbers and names
were deleted and tampered with on her Status and Allowance macro report;
7. 	in March 2018, CFO sent her assistant to Complainant’s desk when she had not opened
CFO’s Outlook message;2
8. 	in April 2018, S1 issued Complainant a “Less than Fully Successful” rating on her mid-
term performance evaluation;
9. 	on April 24, 2018, CFO and S1 accessed Complainant’s computer without her knowledge
and deleted work she had completed;
2 We note that Complainant initially stated that this incident occurred in March 2018, but later
stated in her affidavit that it occurred on January 11, 2018.

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10. on July 18, 2018, S1 had Complainant’s user account profile deleted, which deleted her e-
mails, records, and saved files;
11. on December 10, 2018, Complainant became aware that the travel office failed to process
her travel card in a timely manner;
12. on January 13, and 14, 2019, Complainant became aware that CFO and travel staff
delayed/failed to purchase tickets for her travel on January 14, 2019; and
13. on January 30, 2019, Complainant became aware that CFO denied her request to stay
overnight at a training and depart on Saturday, February 16, 2019, when Complainant’s
training ended at 4:30 p.m. on Friday, February 15, 2019.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing and the AJ held a hearing on December 5, 2019.
The AJ issued a decision on December 11, 2019. In her decision, the AJ included findings of fact.
For example, the AJ found that S1 and CFO did not intend to harass Complainant based on her
age, sex, or EEO activity; and that they were unaware of Complainant’s participation in another
employee’s EEO case. In addition, the AJ found that S1 and CFO did not access Complainant’s
computer to delete or alter her work; they were not involved in the delay of Complainant’s travel
card; and that S1 did not delete Complainant’s user profile. The AJ also noted that since
Complainant successfully grieved her 2017 Fully Successful performance rating and did not seek
any remedy for the rating, it should be dismissed as a discrete claim.3
The AJ found that the preponderant evidence failed to show a discriminatory motive for any of the
challenged actions, and that it failed to satisfy the objective standard for a discriminatory hostile
work environment. The AJ determined that Complainant’s claims were common workplace
pressures, frustrations, and professional differences with her supervisors, and that the actions,
either viewed individually or collectively, did not rise to the level of unlawful harassment.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant
appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s
appeal.
3 While the AJ dismissed the performance rating as a discrete claim, she considered evidence
regarding the rating to determine motivation, or a pattern of discriminatory harassment.

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CONTENTIONS ON APPEAL
Complainant argues that the AJ did not allow her to use her 30 exhibits at the hearing because the
AJ stated that the hearing would be “really short and quick.” Complainant also states that the AJ
showed signs that she favored the Agency when she ate an apple during witnesses’ testimony.
Complainant argues that the Agency’s witnesses were “coerced,” and all were “untruthful but
one”; and that she proved that they were not telling the truth. In addition, Complainant asserts that
all of the AJ’s findings of fact are “not truthful.”
The Agency counters that Complainant does not provide a basis to determine that the AJ’s findings
of fact are clearly erroneous, or that they are not supported by substantial evidence in the record.
The Agency argues that Complainant requests that the Commission find in her favor based on her
unsubstantiated assertions. The Agency also notes that Complainant attacks the credibility of the
witnesses, but that she did not provide evidence that contradicts their testimony, nor show that a
reasonable fact-finder would not credit the testimony. The Agency requests that the Commission
uphold the AJ’s decision.
ANALYSIS AND FINDINGS
Standard of Review
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 EEOC Management Directive 110, Chap. 9, at § VI.B. (Aug. 5, 2015). The AJ found that the
testimonies of the Agency’s witnesses were credible. On appeal, Complainant argues that the
Agency’s witnesses were “coerced,” and all were “untruthful but one”; and that she proved that
they were not telling the truth. However, Complainant does not provide any specific examples, or
evidence, to show that the witnesses were not credible. As such, we accept the AJ’s credibility
determinations.
AJ Bias
Complainant must make a substantial showing of personal bias by the AJ in order to prevail on her
contention that the AJ displayed bias. Such bias must be shown to have prejudiced her in this
matter.

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Complainant must establish that the alleged bias demonstrated, so permeated the process, that it
would have been impossible to receive a fair hearing, or that the process was so tainted by
substantial personal bias that she did not receive a fair and impartial hearing. See Smith v. Dep't
of the Army, EEOC Appeal No. 01880866, (May 11, 1988) (citing, Roberts v. Morton, 549 F.2d
158 (10th Cir), cert. denied); and Roberts v. Andrus, 434 U.S. 834 (1977).
Complainant asserts that the AJ showed that she favored the Agency when she ate during the
hearing. However, we do not find that the AJ’s action showed any bias. In addition, the AJ stated
that Complainant’s “exhibits” were included and numbered in the Agency’s supplemental record.
Hearing Transcript (HT) at 137-8. The AJ also noted in her decision that Complainant had one
hearing exhibit, beyond the supplemented investigative record, which shows that the AJ
considered all of Complainant’s “exhibits.” In this case, there is no evidence that the AJ was biased
in favor of the Agency such that Complainant did not receive a fair evaluation of her case.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment,
Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected
to unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (4) the harassment 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. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
We find that Complainant belongs to statutorily protected classes based on her age, sex, and prior
participation in the EEO process, and that she was subjected to unwelcome verbal conduct.
However, we find that some of the incidents did not occur as alleged. Substantial evidence in the
record shows that events 2,6, and 9, did not occur as Complainant described. During the hearing,
an Information System Security Officer, and a Supervisory Information Technology Specialist,
testified that there was no evidence that S1 or CFO ever accessed Complainant’s computer.
In addition, there is substantial evidence showing that S1 and CFO were not responsible for events
11, and 12. A Transportation Assistant testified that she was responsible for the delay in processing
Complainant’s travel card. HT 228-9. An Employee Travel Clerk testified that the approval for
Complainant’s travel request was “really quick,” and that neither CFO, nor S1, interfered with the
process. HT 238,241.
Even assuming that the remaining events occurred as described by Complainant, we find that she
did not provide any evidence showing that they were based on any of her protected bases. On
appeal, Complainant only states that the AJ’s findings of fact are “not truthful,” without providing
any evidence to support her assertion.

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Accordingly, we find that substantial evidence in the record supports the AJ’s finding that
Complainant did not establish that the Agency subjected her to a hostile work environment based
on her age, sex, or protected EEO activity, and we AFFIRM the Agency’s final order adopting the
AJ’s decision.
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 decision
finding that Complainant did not establish that the Agency subjected her to a hostile work
environment based on her age or sex, or in reprisal for prior EEO activity.
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.

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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).
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
October 27, 2020
Date