Hester S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2019

0120172300 (E.E.O.C. Mar. 14, 2019)

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

Hester S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172300

Agency No. 200J-0578-2016100393

DECISION

On June 16, 2017, 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
May 17, 2017, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patient Safety
Manager, RN3 - Level 12, at the Agency’s Medical Center in Hines, Illinois. On January 29, 2016,
Complainant filed an EEO complaint in which she alleged that the Acting Director of the Medical
Center, her second-level supervisor (S2), subjected her to a hostile work environment based on sex
(female) and in reprisal for prior protected EEO activity based on several incidents, including:

1. Since 2014, CW informed Complainant that he has guns and she was afraid of what
CW would do with those guns;

2. On August 6, 2015, CW sexually harassed Complainant by crushing himself against
her chest in a crowded elevator;

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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3. Since August 6, 2015, CW continued to bully Complainant with management doing
nothing to protect her;

4. On August 7, 2015, S2 failed to initiate a report on the elevator incident that occurred
the day before;

5. On August 7, 2015, S2 told Complainant he was proud of CW for sending her a card
with an apology written on it;

6. On August 7, 2015, August 10, 2015, and an unspecified date in September 2015, CW
continued to harass Complainant by staring at her during morning meetings;

7. On October 11, 2015, S2 required Complainant to interact with CW during morning
meetings;

8. On January 19, 2016, S2 refused to sign the paperwork needed to authorize her to attend
a seminar, resulting in a week-long delay in Complainant obtaining the necessary
approval; and

9. On an unspecified date in January 2016, Complainant’s request for a smart phone was
denied after initially being approved.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. On October 21, 2016, Complainant requested a
final agency decision, and in accordance with Complainant’s request, 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 or reprisal as alleged.

Incident (1): Complainant averred that since 2014, CW kept telling her that he had guns in his
possession, which made her afraid of what he might do with those firearms. When the EEO
investigator asked Complainant if CW made any threatening remarks toward her that were related
to his possession of guns, Complainant replied no. Nonetheless she averred that he reeked of
alcohol, and that she avoided him because he was short-tempered. IR 63-64. She also stated that
the first time she raised the firearms issue with management was on August 7, 2015. IR 64.
Complainant averred that she raised her concerns with her immediate supervisor, the Chief of
Quality and Systems Improvement (S1) as well as S2. S1 reassured Complainant that CW could
not bring firearms onto the premises and that she did not have anything to worry about. IR 90. S2
averred that he asked Complainant whether CW had ever made a threat, and that Complainant said
no, but knew that he went hunting. IR 100. CW responded that Complainant had never mentioned
to him that she was uncomfortable hearing him talk about his guns and that he did not intend to
harass Complainant by discussing his firearms. IR 112.

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Incident (2): Complainant averred that on August 6, 2015, she was subjected to sexual harassment
when CW brushed himself against her chest twice while they were in a crowded elevator.
According to Complainant’s version of events, CW had entered the elevator after Complainant,
who had moved toward the back. She maintained that as the elevator doors closed, he had her
pinned against the rear wall and had wiggled his back, that she poked at him to get him off, and
that he turned around, smiled at her, and repeated the same gesture, this time deliberately. She
also stated that she did not say anything because she did not want to make a scene in front of the
veteran patients who were in the elevator with them. IR 65-66, 82-84. A fellow nurse who was
in the elevator with Complainant and CW at the time reported in a contact statement that she heard
Complainant tell CW to get away from her or else she would file a sexual harassment claim against
him. IR 85. When she got out of the elevator, Complainant approached a police captain who was
on the floor and informed him that CW had pushed his arm across her breast area while they were
in the elevator, and that he had advised Complainant to file a police report. IR 66, 86.
Approximately a week after the incident. S2 asked S1 to conduct a fact-finding investigation into
the matter. S1 did so, and in the final report of the incident, she concluded that Complainant had
indeed been sexually harassed by CW in connection with the incident in the elevator on August 6,
2015. CW was disciplined, although the disciplinary action was not set forth in the investigative
report, on grounds of maintaining confidentiality. IR 91, 101-02, 112, 119-29, 132-33, 135-36,
138-40, 145-46, 153-56. In a report-of-contact statement, the Acting Associate Director averred
that she had been deputized by S2 to handle the harassment investigation on August 11, 2015, that
she immediately took steps to minimize contact between Complainant and CW during the
investigation, and that after the investigation had been completed and CW had been disciplined,
she informed Complainant that CW would be returning to his normal duties, which included
attending morning meetings and participating in rounds. IR 109.

Incidents (3), (4), (5), & (6): Complainant averred that CW continued to bully her after the elevator
incident, that S2 had done nothing to protect her, that S1 and S2 failed to initiate a report of the
August 6th incident by the following day, and that on August 7, 2015, S2 told Complainant that he
was proud of CW because he had sent Complainant a written apology on a card. IR 143. When
asked by the investigator to describe the actions that she characterized as continued bullying on
the part of CW, she replied that CW would sit next to her during the morning report, that he would
stare at her at meetings, particularly on August 7, August 10, and sometime in September 2015.
She further averred that CW leaned over to talk to someone else and in so doing, brushed her on
the shoulder, that he said “hi” to her the Monday after the elevator incident, and that he slid a card
with a written note of apology under her door. IR 67, 69. She also stated that on several occasions,
he stared intently at her during morning meetings. IR 69. She averred that the bullying had gone
on until at least January and reiterated her belief that S2’s failure to initiate an investigation into
the report was harassment. IR 65-66, 68-70. As previously noted, however, S2 did initiate an
investigation that resulted in CW being disciplined for sexually harassing Complainant. IR 72.
Regarding the written apology, Complainant averred that receiving the card from CW with the
apology on it made her feel even more intimidated. IR 71. S1 averred that Complainant had come
to her more than 10 times, reporting that CW would leer at her during morning meetings, and that
she advocated separating them. IR 92-93. She also averred that while the investigation was
pending, CW was not allowed to attend morning meetings, that disciplinary action was taken
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against CW and that when the disciplinary action was over, CW returned to his normal job
functions. IR 93-94. S2 confirmed that Complainant had voiced concerns about being
uncomfortable around CW and that he told her he recognized that both Complainant and CW
needed space to do their jobs. IR 102. S2 reiterated that the matter was fully investigated, that
disciplinary action had been taken against CW, that no further actions needed to be taken against
CW, and that he felt that CW’s written apology represented a good faith effort to resolve the matter
on his part. S2 noted that Complainant saw the apology as a further example of bullying. IR 102-
104. In responding to Complainant’s accusation that he had been leering at her, CW averred that
he was deaf, and that because of his hearing loss, he had to stare at people hard in order to read
their lips. IR 113. Complainant admitted that S1 directed CW to move to a chair behind her at
morning meetings, and that this step had alleviated her discomfort to some extent. IR 72.

Incident (7): Complainant averred that she told S2 on October 11, 2015 that he was perpetuating
the hostile environment by requiring her to continue to interact with CW at meetings. She stated
that she told S2 that she did not want CW anywhere near her, that she did not want to talk to CW
or receive emails from him. She further stated that S1’s response was that CW needed to do his
job. IR 73-74. When asked by the investigator whether S2 required her to interact with CW,
Complainant replied, “No.” IR 73. S2 averred that he had at least one conversation with
Complainant wherein she characterized CW inviting Complainant to business-related meetings in
his office as perpetuating the hostile work environment. He also stated that Complainant was
dismissive of his concerns about the need to protect the work environments of CW as well of her.
IR 104. In addition, S2 averred that he did not remember Complainant ever asking him for an
office change. IR 104-105. S1 reiterated that while the investigation was pending, CW did not
attend the morning reports. S2 emphasized that CW had been disciplined appropriately, and there
was no need to discipline him indefinitely. IR 94.

Incident (8): Complainant averred that on January 19, 2016, S2 refused to sign the paperwork
necessary for her to attend a training seminar, which caused her to have to wait an additional week
for approval while she obtained the necessary signature from another management official. She
stated that the Director had signed the authorization, but had done so in the wrong place, and that
on January 19th, the Director was out of the office and S2 was in charge as the Acting Director.
She also stated that the Education Department would not accept the authorization, that she had
asked S2 to sign the document in the correct place, and that S2 refused saying that it was already
signed and he would not sign it again. IR 75. S1 confirmed that the paperwork eventually got
signed. IR 95. S2 averred that he did not need to sign the document since the full-time Director’s
signature was already on it. He characterized the paperwork requirements as “silly.” IR 105.

Incident (9): Complainant averred that on an unspecified date in January 2016, someone in the
Information Resources Management office had initially approved but subsequently denied her
request for an Android cell phone with a built-in camera. She averred that she had been issued a
Blackberry when she took the job as Patient Safety Manager, and that she asked for the Android
when she heard that the phones were being upgraded. She maintained that her request for an
Android had been initially approved, but had been rescinded in January 2016, several months after
it had been initially approved. When asked whose decision it was to rescind the approval, she
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replied that it was an individual in Information Resources Management. IR 75-76. S1 and S2 both
averred that, because there were only a limited number of Androids, those cell phones would be
available only to those staff members who were willing to be on call day and night. They stated
that since neither Complainant nor the other Patient Safety Manager was willing to be on call all
the time, they did not need the Androids. IR 95, 106.

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”).

Hostile Work Environment - Sexual Harassment (Claims (2) – (7))

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment
affected a term or condition of employment, either unreasonably interfering with the work
environment or creating an intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No.
01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from
the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982);
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

Here, it is undisputed that Complainant was subjected to unwelcome physical conduct that
amounted to sexual harassment when CW made inappropriate contact with her twice while in the
elevator. The Commission will now turn to whether there is a basis for imputing liability to the
Agency.

An agency is liable for harassment by a coworker or other non-supervisor when it knows or should
have known of the conduct, unless the Agency can show that it took immediate and corrective
action. Whether the Agency's action is appropriate depends upon “the severity and persistence of
the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep't of the Air
Force, EEOC Appeal No. 05920194 (July 8, 1992); Owens v. Dep't of Transp., EEOC Appeal No.
0590824 (Sept. 5, 1996). Appropriate agency corrective action is reasonably calculated to stop the
harassment. Parker v. Dep't of the Navy, EEOC Appeal No. 0120100303 (Jul. 20, 2012). In this
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case, the report of the internal investigation together with the sworn statements of S1, S2, and the
Acting Associate Director established that the Agency took prompt action to correct the situation
once the elevator incident involving CW was found to have occurred. Those corrective measures
included separating Complainant and CW, not allowing CW to attend morning briefings or
otherwise be in Complainant's presence while the investigation was pending, and promptly
disciplining CW at the conclusion of the investigation. CW was allowed to return to his duties
following disciplinary action. When Complainant complained that CW was staring at her during
meetings, his seating arrangement was changed. CW explained that he did not intend to harass
Complainant; rather, he read her lips when she was speaking during meetings because he is deaf.
The record does not demonstrate that any similar conduct recurred. Given these facts, we find that
the Agency took appropriate steps to end the harassment and avoid liability.

Hostile Work Environment – Non-Sexual Harassment

To establish a claim of non-sexual harassment hostile work environment, Complainant must show
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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

To ultimately prevail on her harassment claim, Complainant must prove that the incidents occurred
because of either her sex or her previous EEO activity. Beyond motive, Complainant must show
that she was subjected to conduct “sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). Since Complainant has also alleged reprisal with respect to incidents (8) and
(9), she must prove that the actions of the officials named in these incidents were harmful to the
point that they could dissuade a reasonable person from making or supporting a charge of
discrimination. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also
EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, §
II(B)(3) & n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof with respect
to all of these elements, motive and either hostility or chilling effect, will the question of Agency
liability for discriminatory or retaliatory harassment present itself.

Here, Complainant asserted that based on her protected classes, she was subjected to a hostile work
environment based on several incidents of what she believed to be discriminatory and retaliatory
harassment. The Commission finds that the record evidence supports that Complainant has not
shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment. Moreover, even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. For example, with regard to incident
(1), both S1 and S2 maintained that CW had never made any remarks to Complainant about his
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guns that could be interpreted as threatening. As the incidents discussed above in claims (3) – (7),
the Acting Associate Director, and S2 all stated that they had separated Complainant and CW,
investigated the incident, and disciplined CW. S2 in particular stated that he recognized CW’s
written apology to Complainant. As to the leering accusation, CW stated that because he is deaf,
he needed to be able to read lips, which explained his intense staring at people. With respect to
incident (7), S2 explained that CW was returned to his regular duties following disciplinary action
and that CW needed space to do his job just as Complainant did and that both should be able to
perform their duties in a safe work environment.

Regarding incident (8), S2 stated that he did not feel obligated to sign paperwork that had already
been signed off on by the Director, and that Complainant was able to take the training seminar.
With regard to incident (9), S1 and S2 both reiterated that Complainant was not eligible to use the
Android phone because she was not willing to be on call all the time. We find that management
presented nondiscriminatory reasons for their actions with respect to Complainant’s harassment
claim.

Complainant must now present documentary or testimonial evidence sufficient to expose any
weaknesses, inconsistencies, or contradictions in S1’s explanations for the various incidents to
such an extent that a reasonable fact finder could rationally find those explanations unworthy of
credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007),
req. for recon. den’d, EEOC Request No. 0520080211 (May 30, 2008). Factors to consider include
but are not limited to: discriminatory statements or past personal treatment attributable to those
responsible for the personnel action that led to the filing of the complaint; comparative or statistical
data revealing differences in treatment across various protected-group lines; unequal application
of Agency policy; deviations from standard procedures without explanation or justification; or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv.,
EEOC Appeal No. 0120141697 (Nov. 12, 2015).

With respect to incident (1), when asked by the investigator why she believed that CW’s boasting
about his weapons was based on her sex she stated, “I think he’s a big bully.” IR 65. As to
incidents (3), (4), (5), (7), and (9), when the investigator asked Complainant why she believed that
her sex was a factor in these incidents, Complainant stated that there was a “good old boys
network” in the office. IR 70-72, 74, 76-77. With regard to incident (6), Complainant maintained
that SW was “trying to intimidate a woman, to put me in my place.” IR 72. Concerning incident
(8), Complainant averred that S2 had warned her a long time ago that he would be “extra nice” to
people he was angry with, and that “all of a sudden, he was in my face, in front of other people.”
IR 75. Beyond these assertions, Complainant has presented neither affidavits, declarations or
unsworn statements from witnesses other than herself nor documents that contradicts the
explanations put forward by management officials for the actions described in incidents (1) and
(3) through (9), or which call their veracity into question. We therefore find, as did the Agency,
that Complainant has not established the existence of a discriminatory motive on management’s
part with respect to any of these incidents. Accordingly, we find that Complainant has not
established that she was subjected to a discriminatory or retaliatory hostile work environment as
alleged.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

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
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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

March 14, 2019
Date