Giselle L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20190120171702 (E.E.O.C. Feb. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171702 Agency No. 2004-0558-2016102632 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 27, 2017, finding no discrimination regarding 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse’s Aide, GS-5, with the VA Medical Center in Durham, North Carolina. On April 22, 2016, Complainant filed her complaint alleging discrimination based on sex (female), race (Black), and disability (disabled son) when she was subjected to a hostile work environment in that: (1) On November 9, 2015, her then supervisor (S1), Nurse Manager, attempted to hug her. 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. 0120171702 2 (2) In November 2015, she reported the harassment to her then second line supervisor (S2), Associate Chief Nurse, however she did nothing to address the matter. (3) On April 8, 2016, S1 stopped her in the hall and said, “I hope that we can still be friends because [S1] didn’t hold grudges.” (4) On April 15, 2016, S1 stopped her in the hall and said that S1 didn’t do anything wrong and she knew it. (5) In February 2016, S1 fondled and grabbed her breast. (6) In July 2014, S1 shared unwanted remarks and unsolicited details of her sex life. After completion of the investigation of the complaint, Complainant requested a final Agency decision without hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. On appeal, Complainant, other than filing a notice of appeal, did not file an appeal brief. 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 (EEO MD-110), Chap. 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"). To establish a claim of discriminatory hostile work environment, Complainant must establish that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases - in this case, her race, sex, and 0120171702 3 disability. Only if Complainant establishes those elements - hostility and motive - will the question of Agency liability present itself. Here, as discussed herein, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, sex, and/or disability. Complainant indicated that S1 was her first line supervisor until July 2016, at which time S2 became her first line supervisor. The record indicates that S1 was transferred to another Agency facility in July 2016.2 Regarding claim (1), S1 acknowledged that she hugged Complainant but Complainant never indicated this conduct was unwelcome. Regarding claim (2), S2 denied Complainant reported to S2 that she was subjected to harassment by S1. The Agency indicated that Complainant did not report about her harassment claim against S1 until February 2016. In March 2016, the Agency conducted the fact-finding investigation of Complainant’s harassment claim interviewing Complainant, S1, and S2, as well as other employees. On May 13, 2016, after the completion of the investigation, the Associate Director, Patient Care Service, determined that there were no direct or confirmed findings that S1 engaged in harassment as Complainant claimed. Regarding claims (3) and (4), Complainant indicated that these incidents were not based on her son’s disability. She acknowledged that when S1 made these remarks, she did not respond to the remarks or report the incident to S2. Regarding claim (5), Complainant claimed that in February 2016, S1 fondled her breast. S1 denied the incident. Complainant indicated that the incident was not based on her son’s disability. Complainant acknowledged that no one witnessed the incident and she did not report the incident to S2. S1 also denied touching Complainant’s shoulders, hair, or face as Complainant alleged. Complainant did not identify any witnesses to the incident. Regarding claim (6), Complainant claimed that in July 2014, S1 asked her if she had ever considered euthanasia for her disabled son. S1 denied the incident. Despite Complainant’s claim, S1 also denied sharing her sex life and asking Complainant to find a “big black dick” as Complainant alleged. Complainant did not identify any witnesses to the incidents. 2 The record indicates that the investigator of the instant complaint noted that at the time of the investigation, she was unable to contact S1 because S1 was on sick leave until November 5, 2016, and S1 did not return to work thereafter. Since November 7, 2016, stated the investigator, although she left a message on two different occasions asking S1’s supervisor to give her contact information to S1 to call her back, she received no call either from S1 or S1’s supervisor. The investigation was closed without S1’s affidavit on November 18, 2016. The record indicates that S1 was interviewed on March 21, 2016, by an EEO Counselor of the instant complaint and also by an Agency fact-finding investigator on March 14, 2016, concerning Complainant’s harassment claim against S1. The record contains both statements. 0120171702 4 Complainant’s coworkers indicated that S1 did talk about men, she was dating someone in the facility, and it made them feel uncomfortable. But there is no persuasive evidence that S1 made the alleged remarks to Complainant. After a review of the record, we find that Complainant failed to provide sufficient evidence that these incidents more likely resulted from her race, sex, and/or her son’s disability. Thus, we find that Complainant failed to show that she was subjected to a hostile work environment or that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 0120171702 5 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 February 8, 2019 Date Copy with citationCopy as parenthetical citation