Sofia W.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 26, 2017

0120151077 (E.E.O.C. May. 26, 2017)

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

Sofia W.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120151077

Agency No. 200I-0508-2013104074

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
December 30, 2014, final Agency 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Surgical Technician
in the Surgical Operating Room at the Atlanta VA Medical Center in Decatur, Georgia.
Complainant claims that she has been subjected to verbal and physical harassment by her co-
workers since August 2011. Among the incidents, Complainant alleges that two
anesthesiologists were physical with her including standing in her way, pushing and bumping
into her, and grabbing her. Both anesthesiologists denied knowing Complainant or having any
direct contact with her. Complainant further claims that the Nurse Scheduler witnessed one of
the anesthesiologists grab her arm and kick her foot; however, the Nurse Scheduler denied
witnessing the incident or any other alleged harassing conduct. Complainant claims that the
Certified Registered Nurse Anesthesiologist (CRNA) referred to her as a “thing.” CRNA denied
referring to Complainant as a “thing;” rather, she stated that she was referring to a piece of
equipment.

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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Additionally, Complainant alleges that two other anesthesiologists have stepped in front of her
blocking her view while she was reading the assignment board, gave her nasty looks, and made
comments such as “this was a bad batch they hired” and “you’re not liked here.” Both
anesthesiologists denied engaging in or witnessing the conduct alleged. Complainant’s
supervisor (S1) explained to Complainant that the assignment board is typically crowded and
that it was unlikely that anyone was intentionally blocking her view.

Complainant reported her allegations of harassment and bullying to management. Management
investigated the allegations and collected statements from numerous employees. No employees
reported witnessing the alleged conduct; rather, several employees stated that they were puzzled
by and concerned about Complainant’s accusations of physical contact. The investigation did
not substantiate Complainant’s allegations.

On October 13, 20132, Complainant claims that she met with the EEO Specialist regarding her
discrimination allegations. Complainant alleges that when she told the EEO Specialist that she
wanted to file a complaint, the EEO Specialist advised her to “talk to [her] supervisor again” and
“give it some time.” During a later meeting, Complainant claims that the EEO Specialist asked
her if she wished to continue with her EEO complaint or drop her EEO complaint. Complainant
believed that the EEO Specialist was attempting to dissuade her from filing an EEO complaint.

On October 3, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American) and sex (female) as evidenced by multiple incidents including, inter alia,
management has done nothing about her harassment and bullying complaints; a doctor has
continually been physical with her; a co-worker kicked her; a co-worker called her a “thing” and
continues to step in front of her; a co-worker has bullied her and hit her whenever they are in the
same area; a co-worker hit her on the foot and said “it is time for you to go;” and a doctor
grabbed her by the arm.

In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO
activity when in October 2013, the EEO Specialist attempted to dissuade her from filing a
complaint.

At the conclusion of the investigation of the complaint, the Agency provided Complainant with a
copy of the report of investigation (ROI) and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a FAD. The Agency subsequently conducted a supplemental investigation into
Complainant’s per se reprisal claim. Following the supplemental investigation, the Agency
issued a FAD in accordance with Complainant's request pursuant to 29 C.F.R. § 1614.110(b).

2 Complainant claimed that she met with the EEO Specialist in October 2013, while the EEO
Specialist produced documentation stating that they met in August 2013.
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In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that Complainant
failed to show that the alleged conduct was based on discriminatory animus. The Agency
determined that each of the alleged harassers denied having engaged in the conduct as alleged
and each of Complainant’s named witnesses could not substantiate her version of the alleged
incidents. Additionally, the Agency noted that the findings of the investigation into
Complainant’s allegations of harassment failed to substantiate any of the allegations; rather, if
any of the conduct occurred, it was inadvertent and due to the proximity of the working
environment. As a result, the Agency found that Complainant had not been subjected to a hostile
work environment as alleged.

With regard to Complainant’s per se reprisal claim, Complainant alleged that in her first meeting
with the EEO Specialist, she advised her to “talk to her supervisor” and to “give it some time.”
The EEO Specialist did not deny making the alleged statements Complainant referenced. The
EEO Specialist acknowledged that when she met with Complainant, she asked
Complainant if she had raised her harassment allegations with management. The EEO Specialist
insisted that she asked this question in the context of advising Complainant to make management
aware of what had been occurring so that the alleged harassment would cease. The EEO
Specialist noted that pursuant to the facility’s anti-harassment policy, the facility is responsible
for maintaining a harassment-free work environment, regardless of whether a victim of alleged
harassment has filed an EEO complaint.

As to the second meeting, Complainant claimed that the EEO Specialist asked her to sign
documents stating that she agreed to drop her EEO complaint. The EEO Specialist denied that
she asked Complainant to sign documents of this nature. The EEO Specialist explained that
Complainant is likely referring to the documents she was provided when she informed the EEO
Specialist that she was going to withdraw her complaint. The Agency noted that Complainant
produced no evidence or further information in support of her allegation.

The Agency concluded that Complainant failed to show that any Agency official exerted any
pressure on her that would lead a reasonable person to drop her EEO complaint. Further, the
Agency found that Complainant neither alleged nor showed that the EEO Specialist at any point
refused to allow her to continue to pursue her complaint. As a result, the Agency found that
Complainant failed to show that the EEO Specialist’s actions had a “chilling effect” upon her
pursuit of her EEO complaint. Accordingly, the Agency found that Complainant’s per se reprisal
claim failed.

Complainant filed the instant appeal without submitting any arguments or contentions in support.
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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Here, Complainant
asserted that based on her protected classes, she was subjected to a hostile work environment
based on several incidents where Agency employees took actions that seemed adverse or
disruptive to her. The Commission agrees with the Agency that Complainant has not
established, by a preponderance of the evidence, that she was subjected to a discriminatory
hostile work environment. The Commission finds Complainant failed to show that the alleged
incidents and conduct actually occurred. Complainant presented no corroborating evidence and
Complainant’s identified witnesses denied witnessing any of the alleged harassing conduct.
Additionally, management investigated the alleged incidents, but found that Complainant’s
claims were unsubstantiated and determined that no disciplinary action was warranted. Even
assuming that the incidents occurred as alleged, there is no evidence that the alleged conduct was
based on discriminatory animus. As a result, the Commission finds that Complainant was not
subjected to discrimination or a hostile work environment as alleged.

Per Se Reprisal

Finally, with regard to Complainant’s claim that the EEO Specialist attempted to dissuade her
from filing an EEO complaint, the Commission notes that EEOC Regulation 29 C.F.R.
§ 1614.105(g) provides that the EEO Counselor shall not attempt in any way to restrain the
aggrieved person from filing a complaint. Here, Complainant alleged that the EEO Specialist
advised her to talk to her supervisor and later asked her if she was going to sign documents to
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withdraw her complaint. The EEO Specialist explained that she advised Complainant to speak
with her supervisor only to inform her that it was management’s responsibility to ensure that the
work environment was free of harassment. Supp’l ROI, at 34. The EEO Specialist denied
attempting to dissuade or interfere with Complainant pursuing her EEO complaint. Id. at 35.
Further, the EEO Specialist denied asking Complainant to file a withdrawal form. Id. at 40.
Complainant has not shown that she was dissuaded from processing her EEO complaint as a
result of the comments made by the EEO Specialist. Although the Commission has held that
certain acts may constitute per se reprisal, the matters raised in this case do not rise to the level of
per se reprisal.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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
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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.

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 26, 2017
Date