Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 14, 2015

01-2013-1948-0500 (E.E.O.C. Jul. 14, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120131948

Hearing No. 530201200228X

Agency No. 200405172012100347

DECISION
On April 18, 2013, Complainant filed an appeal from the Agency’s March 19, 2013, final
order 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 deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s
final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the
Agency’s VA Medical Center facility in Beckley, West Virginia. On January 25, 2012,
Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work
environment on the basis of reprisal for her husband’s prior protected EEO activity when:

1. On May 29, 2011, Complainant caught a co-worker stealing from her purse;
2. On June 2, 2011, VA police interrogated Complainant for three to four hours;
3. On July 22, 2011, VA police filed unknown charges against Complainant; and
4. On September 18, 2011, a police dispatcher told Complainant she was not allowed in
the break room and slammed a door.

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.
On March 4, 2013, over Complainant’s objections, the AJ assigned to the case granted the
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Agency’s motion for a decision without a hearing. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged. On appeal, Complainant reiterates her contention that she was
subjected to a hostile work environment.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. Complainant can establish a
prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by
showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the adverse treatment.
Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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Here, Complainant contends that she was subjected to unlawful harassment on the basis of her
husband’s protected EEO activity. The record shows, however, that her husband did not
initiate EEO contact until July 18, 2011. As such, we find that Complainant failed to establish
a prima facie case of reprisal with respect to claims (1) and (2). In so finding, we note that the
incidents alleged in both of these claims predate her husband’s protected EEO activity. We also
find that Complainant failed to establish a prima facie case of reprisal discrimination with
respect to claim (3). Specifically, there is no evidence in the record to show that charges of any
kind were filed against Complainant. As such, she has not shown that she was subjected to any
adverse action. Even if Complainant had established a prima facie case of retaliation in claims
(1) – (3), we find no evidence that the alleged actions were motivated by retaliation.

Finally, with respect to claim (4), 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).
Complainant claims that, on September 18, 2011, a police dispatcher (E1) told Complainant
she was not allowed in the break room and slammed a door. Complainant stated she had
always been allowed access to the break room and that it was a past practice to not only allow
police personnel’s wives in the room, but also many other members of the hospital staff. She
also stated that she asked a police officer (P1) if it was okay to use the room and he said it
was. Although P1 acknowledges that he did tell Complainant he did not mind if she used the
break room, he also states that he told her that police dispatchers are in charge of that area and
that it is restricted. Even viewing the evidence in a light most favorable to Complainant, and
assuming that E1 acted as alleged, this single incident is not sufficiently severe so as to
constitute unlawful harassment. As noted by the Supreme Court in Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.” The Court noted that such conduct “must be both objectively and
subjectively offensive, [such] that a reasonable person would find [the work environment to be]
hostile or abusive, and…that the victim in fact did perceive it to be so.” Id.; see also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist.
V. Breeden

, 532 U.S. 268 (2001).

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CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 14, 2015