Darlena H.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 29, 2017

0120151838 (E.E.O.C. Nov. 29, 2017)

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

Darlena H.,1
Complainant,

v.

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

Appeal No. 0120151838

Hearing No. 420-2014-00147X

Agency No. 2003-0520-2013103042

DECISION

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 April 8, 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. 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 Certified Nursing
Assistant at the Agency’s facility in Biloxi, Mississippi. On August 27, 2013, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of sex
(female) and in reprisal for prior protected EEO activity when:

1. on January 16 and 24, 2013; February 4, 5, 8, 20, and 27, 2013; March 8, 14, 18, 20
and 22, 2013; and April 2 and 4, 2013, the AFGE Union President subjected her to
sexual harassment;

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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2. on April 30, 2013, her nurse manager (M1) charged her as absent without leave
(AWOL);
3. on May 14, 2013, her second level manager (M2) reassigned Complainant without
prior notice;
4. on August 7, 2013, management issued her a letter of removal for endangering the
safety of a patient, leaving the work area, and lack of candor; and
5. on August 24, 2013, management terminated her from her position.

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. On appeal, Complainant presents a
copy of the Agency’s report following its internal investigation into the alleged sexual
harassment.

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 sexual harassment in the workplace constitutes an actionable form of sex
discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to
establish a prima facie case of sexual harassment, a complainant must prove, by a preponderance
of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected
class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment
complained of was based on her sex; (4) that the harassment 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 Complainant v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982)).

Assuming, without finding, that Complainant has established elements (1)-(4) of a prima facie
case of sexual harassment, our next inquiry is whether the Agency is liable for C1’s actions. In
the case of coworker harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of the conduct, unless it
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can be shown that it took immediate and appropriate corrective action. See Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18,
1999). An agency can raise an affirmative defense when it shows that it took immediate and
appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on
the particular facts of the case, such as the severity and persistence of the harassment and the
effectiveness of any initial remedial steps. Taylor v. Department of Air Force, EEOC Request
No. 05920194 (July 8, 1992).

Here, Complainant alleges that between January and March 2013, the union president (CW1)
made numerous sexual comments and touched her inappropriately, including sexually assaulting
her. Complainant acknowledges that there were no witnesses to CW1’s actions and that she first
reported the alleged harassment to a management official on April 8, 2013. The record shows
once Complainant reported the alleged harassment, management immediately directed CW1 to
have no further contact with Complainant; moved CW1’s duty station to another building away
from Complainant; called for an Administrative Investigation Board to investigate the alleged
harassment; and contacted the police to investigate CW1’s actions. Complainant acknowledges
that she had no contact with CW1 after April 8, 2013, and therefore, the harassment did not recur
at any point before her removal. Accordingly, we find that assuming the incidents occurred as
alleged, the Agency is not liable for CW1’s actions as it took immediate and appropriate
corrective action.

With respect to the remaining claims, 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 she was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community 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 Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of sex and
reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, with respect to claim (2), the record shows that M1 charged
Complainant with one hour of AWOL on April 30, 2013, for being absent from her work
location without permission. M1 states that she attempted to locate Complainant for over an hour
in order to provide her with her midterm performance evaluation but that after waiting at
Complainant’s work station, she contacted numerous other employees and management officials
but no one was able to locate Complainant. Accordingly, M1 states that the charge of one hour of
AWOL was appropriate. We find that Complainant has proffered no evidence to show that the
Agency’s articulated reasons for its actions were pretextual.

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Next, with respect to claims (3)-(5), the record shows that on March 9, 2013, the outside gate to
the geriatric dementia unit was left unlocked and a patient walked out of the building and
wandered away from the facility with no escort, endangering his safety. As a result of this
incident, management initiated a fact-finding investigation to determine how the patient was able
to leave the facility through an unlocked gate. With respect to claim (3), the record reflects that
Complainant was reassigned while the fact-finding was being conducted. As part of this fact-
finding, Complainant provided a statement in which she stated that the patient had not left the
building unescorted but that she had taken him from the facility for a walk outside. Upon review
of security footage, however, it was clear that Complainant entered and exited through the
outside gate several times, leaving the gate unlocked, before the patient was seen exiting through
the unlocked gate unescorted.

As to claims (4) and (5), the record shows that at the conclusion of the fact-finding, management
determined that removal was the appropriate disciplinary action.2 In support of the removal
action, M2 states that Complainant’s actions endangered the safety of a veteran patient, that the
video evidence established that Complainant repeatedly left her duty location without permission
the morning of the incident at issue, and that Complainant’s false testimony that she had escorted
the patient out of the unit displayed a lack of candor. Complainant appealed the proposed
removal action, but it was upheld, and Complainant was removed from service effective August
24, 2013. We find that Complainant failed to proffer any persuasive evidence to show that the
Agency’s actions were motivated by discriminatory or retaliatory animus, or that the Agency’s
articulated reasons for its actions were pretextual.

Finally, insofar as Complainant contends that the incidents in claims (2) – (5) constitute a hostile
work environment based upon any of her protected classes, the Commission finds that since she
failed to refute the legitimate, nondiscriminatory reasons proffered by the Agency for its actions,
she also failed to establish that such actions were taken on the basis of her membership in the
protected classes. Accordingly, Complainant failed to establish that she was subjected to a
discriminatory hostile work environment. See Bennett v. Department of the Navy, EEOC
Request No. 05980746 (September 19, 2000).

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination.

2 We note that the record also shows that Complainant had been previously issued a 7-day
suspension, on January 16, 2013, for failure to follow instructions and conduct unbecoming, and
a 2-day suspension in November 2010, for unauthorized absence and failure to follow proper
leave requesting procedures.
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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 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.
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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

November 29, 2017
Date