0120151910
03-09-2017
Xochitl B.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Xochitl B.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151910
Hearing No. 510-2014-00311X
Agency No. 200106732013104060
DECISION
On April 29, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 7, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Chaplain at the Agency's Medical Center facility in Tampa, Florida.
On October 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (62), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when she was subjected to a hostile work environment. In support of her claim, Complainant alleged that the following events occurred:
1. On June 18, 2013, Complainant learned that she was not receiving equitable bonuses or step increases in comparison to her co-worker.
2. On July 15, 2013, Complainant's first level supervisor (Chief) blocked and sabotaged her grant and continues to engage in disrespectful behavior towards her and undermines her ability to do her job.
3. On July 22, 2013, the Chief harassed her by ignoring and verbally abusing her, subjecting her to humiliation and character assassination, and accused her of not working well with the chaplain residents.
4. On August 14, 2013, at the staff meeting, a co-worker (Co-Worker) told Complainant that her issues with the student residents (SRI and SR2) are personal, and told SR1 and SR2 that they could be aggressive with her, which caused SR1 to physically abuse her, and when she reported the incident to S1, no action was taken.
5. On September 13, 2013, Complainant was not allowed to act as Chief of Chaplain Service while the Chief was on leave, and the Chief cancelled her committee participation.
6. On September 15, 2013, Complainant tried to meet with the Chief and the Co-Worker to discuss her concerns with their negative representation of her in front of her colleagues, and that they ignored her and continued to be critical and demeaned her work and character.
7. On September 25, 2013, during a weekly staff meeting, the Co-Worker became irate and threatening, and when Complainant asked a question, he yelled at her, "you have used up all the air time already, I am trying to communicate with you now, we have things to go over," or words to that effect.
8. On or about October 4, 2013, Complainant informed the Chief that she is stressed due to his harsh tone and rudeness towards her, and when she speaks to him, he ignores her and tums his back and asks other staff to translate what she is saying, or words to that effect.
9. On October 9, 2013, during a meeting, the S1 asked CW about her work and stated that she "talks too much," and ignored her. He also turned his back towards her and did not include her in the conversation.
10. On October 10, 2013, the Chief belittled and bullied her even though she asked him to stop.
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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. On appeal, Complainant asserted that she established a prima facie case of harassment and reprisal. Her attorney argued that Complainant was subjected to unwelcome verbal and physical conduct by management. She argued that the harassment occurred based on her strong evidence that management had a bias against women and retaliated against her because of her prior EEO activity. Further, the Attorney argued that the supervisors unreasonably interfered with Complainant's work performance and that the Agency did not establish any affirmative defense to her claims. As such, the Attorney claimed that Complainant was entitled to damages including medical expenses for her medical condition she experienced due to the Agency's harassment. The Agency asked that the Commission affirm its finding of no discrimination.
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").
It is well-settled that harassment based on an individual's age, sex, and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on her sex, age and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant failed to establish that the alleged harassment occurred because of her sex, age and/or prior EEO activity. We note that Complainant argued without providing evidence that she was targeted as she was the only female in the department. She also asserted that she was asked when she would retire. However, as noted, she did not provide any evidence to support her claims nor did she establish that the alleged events occurred because of her membership in these classes or her prior EEO complaint. As such, we conclude that Complainant has not establish that she was subjected to a hostile work environment based on her sex, age, and/or prior EEO activity.
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 finding no discrimination.
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 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
March 9, 2017
__________________
Date
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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