[Redacted], Harriet J., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2020004480 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet J.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004480 Hearing No. 520-2018-00036X Agency No. 200H-0518-2017101113 DECISION On August 12, 2020, 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 July 1, 2020, final decision (FAD) 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 Housekeeping Aide, WG-02, at the Agency’s Emergency Management Services (EMS) in Bedford, Massachusetts. Complainant's first level supervisor was the Supervisory Aide (Supervisor), her second level supervisor was the Supervisory Program Specialist (Program Specialist), and her third level supervisor was the Chief of the EMS (Chief). Report of Investigation (ROI) at 131-32. Complainant provided that between September 2016 and December 2016, she was subjected to sexual harassment by the Supervisor. Id. at 132. 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. 2020004480 2 Specifically, she stated that the Supervisor would get in her face and talk very low and incoherently while she was performing her job. Id. Complainant also reported that there was an event where the Supervisor noticed an ink mark on her shirt pocket, and she had to back away to prevent him from touching her breast. Id. Complainant further explained that in November 2016, the Supervisor noticed her using a mop that was previously his. Id. at 133. According to Complainant, he proceeded to ask her what she was doing "with his pole" and kept repeating his question in lewd tone and language. Id. Complainant stated that the Supervisor continued with the inappropriate language towards her until the Chief entered the space and she was able to safely exit. Id. On November 17, 2016, the Supervisor charged Complainant as absent without leave (AWOL), accusing Complainant of abusing sick leave. Id. at 135. Complainant, however, reported that she was charged AWOL because she did not respond to the Supervisor's advances. Id. Complainant spoke with the Agency’s EEO office on the phone on December 15 or 16, 2016. Id. at 133. Afterwards, Complainant was told that the Supervisor and the Chief would be informed about her concerns. Id. On February 28, 2017, the Chief issued Complainant a proposed admonishment. Id. at 138. The Chief explained that the Supervisor had provided emails from Complainant to the Supervisor which were unprofessional and disrespectful. Id. at 139. Complainant stated that the proposed admonishment appeared to be retaliation from her complaint of sexual harassment against the Supervisor. Id. Ultimately, the Chief removed the admonishment and Complainant was not punished. Id. In response to Complainant's claims, the Supervisor stated that any interactions with Complainant were on a work-related basis, including sharing work feedback with her. ROI at 148. He explained that he had a hearing problem and wore hearing aids when interacting with employees, occasionally requiring him to lean in and listen on his left side. Id. The Supervisor denied ever touching Complainant inappropriately or making any lewd or inappropriate remarks to her. Id. He denied being aware of any of Complainant's concerns about him. Id. As to Complainant's AWOL charge, the Supervisor stated that the AWOL was given based on Complainant's abuse of the sick leave process and that her leave was not supported by documentation. Id. at 151. Regarding the February 28, 2017, proposed admonishment, the Supervisor stated that he was on a different team at that time and had no information or knowledge of the event. Id. at 154-55. The Chief explained that he was not aware of Complainant’s harassment allegations until sometime in May 2017. Id. at 174. He also stated that the Supervisor denied that the events took place and Complainant had admitted to not liking the Supervisor. Id. As to Complainant's proposed admonishment, the Chief explained that the decision was based on Complainant engaging in disrespectful and unprofessional conduct, failure to follow leave procedures, AWOL, and being away from the work area without proper notification. Id. at 178. 2020004480 3 The Chief also provided that, in response to Complainant's reports of harassment, an inquiry was made including speaking with the Supervisor regarding any wrongdoing. Id. at 180. The Chief noted that management worked with the EEO office to respond to requests for information and, to ensure continuity of service, the Supervisor was reassigned so as not to be Complainant's supervisor. Id. On March 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From September 2016 through December 2016, the Supervisor made unsolicited attempts to get too close to her, tried to touch her inappropriately, made lewd remarks, and behaved in inappropriate ways towards her; 2. On November 17, 2016, the Supervisor denied her request for sick leave and charged her with AWOL; and 3. On February 28, 2017, the Chief issued her a proposed admonishment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that management articulated legitimate nondiscriminatory reasons for its actions in reference to claims 2 and 3 and that Complainant failed to present sufficient evidence to establish pretext based on her protected classes. Regarding Complainant's sexual harassment allegations in claim 1, the Agency found that Complainant had not established that the conduct alleged occurred as the Supervisor denied the events and Complainant did not provide corroborative evidence. Therefore, the Agency found that Complainant failed to establish by a preponderance of the evidence that she was subjected to sexual harassment. CONTENTIONS ON APPEAL On appeal, Complainant argues that the FAD ignored her well-being as well as the well-being of other Agency employees and contends that the ROI was insufficient and biased towards management. In response, the Agency reiterates the findings from the FAD. 2020004480 4 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”). Disparate Treatment (Claims 2 and 3) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on sex and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In claim 2, the Supervisor provided that Complainant was charged with AWOL because she did not follow leave policies. As to claim 3, the Chief clarified that the decision was based on Complainant engaging in disrespectful and unprofessional conduct, failure to follow leave procedures, AWOL, and being away from the work area without proper notification. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Complainant has provided that her leave request was denied and she was charged AWOL due to rejecting the Supervisor’s advances, but she has not provided evidence to support this contention. In contrast, the record reflects that her request was denied due to failure to show medical documentation requiring leave. Similarly, while Complainant alleged that the proposed admonishment was retaliation from her complaint of sexual harassment against the Supervisor, she has not provided any further evidence or assertions in support of this contention. Further, the Chief stated that he was not aware of the alleged harassment from the Supervisor until May 2017, months after the February 2017 proposed admonishment. 2020004480 5 There is no evidence in the record to suggest any of these actions happened due to discriminatory or retaliatory animus. Therefore, we find that Complainant has failed to meet her burden of persuasion. Harassment Complainant has alleged that she was subjected to a hostile work environment based on her sex and protected EEO activity. Such a claim is examined under the guidelines set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in which the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See also Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). It is well-settled that harassment based on an individual’s sex and protected EEO activity are actionable. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases a complainant must prove the existence of five elements: (1) that she is a member of the statutorily protected class and/or engaged in prior EEO activity; (2) that she was subjected to unwelcome conduct related to her sex and/or protected EEO activity(3) that the conduct complained of was based on her sex and/or EEO activity; (4) that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). As noted above, we find that Complainant did not establish that the Agency was motivated by discriminatory or retaliatory animus with respect to claims 2 and 3. As such, a case of harassment, with respect to claims 2 and 3 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 bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). With respect to claim 1, we find that the record does not provide support that the instances occurred as described by Complainant. The Supervisor provided that he has a hearing disability and leans in closer to hear others speak. He denied all other allegations made by Complainant, including making remarks to her or attempting to touch her inappropriately. Despite Complainant’s statements, there is no other evidence of the events. There were no witnesses, nor witness statements to confirm the nature of the events reported by Complainant. 2020004480 6 There is no evidence in the record to suggest any of these actions happened due to discriminatory animus, nor that they were unusual in the realm of workplace events. Complainant has not shown that she was subject to harassment based on her protected activity. Where, as here, the evidence is at best equipoise, Complainant fails to meet her burden that the incidents occurred. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014); Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his co-worker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). In sum, we find that Complainant did not establish that she was subjected to a hostile work environment based on her sex or protected EEO activity, as alleged. 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 decision STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2020004480 7 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, a 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. 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. 2020004480 8 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 9, 2022 Date