Demetria G.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 31, 2017

0120142891 (E.E.O.C. Jan. 31, 2017)

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

Demetria G.,1
Complainant,

v.

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

Appeal No. 0120142891

Agency No. 2003-589W-2013103296

DECISION

On August 14, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 16, 2014, final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo. 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 Medical Support
Assistant (MSA), GS-4, during her probationary status at the Agency’s outpatient clinic of the
VA Medical Center in Hutchinson, Kansas.

On August 6, 2013, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the basis of her sex (female) when she was subjected to a hostile
work environment as evidenced by the following incidents:

1. On April 12, 2013, management failed to take corrective action when Complainant
reported various (MSA) coworkers for verbally battering her when they questioned
her concerning various lab appointments she scheduled;

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 May 16, 2013, a Physician Assistant entered the front office and embarrassed
Complainant in front of patients when she reprimanded the Complainant in a loud
voice for declaring that the Physician Assistant “told us to lie” and that they needed
to “cheat the system” to raise their performance measures;

3. On May 31, 2013, Complainant overheard the Physician Assistant say to a group of
coworkers, “It feels like we are on an island and the help we get only makes it
worse.” Additionally, the Physician Assistant stood over Complainant with her
hands on her hips and stated in a hostile tone of voice in front of patients and
coworkers, “You want to tell me why you overbooked this?”;

4. On June 4, 2013, the Physician Assistant entered the front office and humiliated
Complainant in front of patients when she reprimanded her in a loud voice for
“breaking job 101 to never give clinical advice;”

5. From March 2013 through July 12, 2013, management failed to act when
Complainant was subjected to verbal abuse and public humiliation from her
coworkers when they questioned Complainant’s work and presence in the unit, and
when the Physician Assistant reprimanded Complainant in front of patients and
peers; and

6. On July 12, 2013, the Physician Assistant frightened Complainant when she rushed
into the front office, ran to Complainant’s desk, and said, “You can’t refuse to talk
to your Supervisor,” picked up Complainant’s phone and called her Supervisor,
aggressively shoved the phone in Complainant’s face, and stood directly behind the
Complainant in a threatening manner while she talked to the Supervisor on the
phone.

Complainant also claimed that on July 12, 2013, she was compelled by the hostile work
environment based on her sex to submit her resignation during her probationary period.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant claimed that she was discriminated against by the
Physician Assistant and a MSA, both female. The Agency determined that Complainant did
not show that the aforementioned actions were attributable to her sex rather than personality
conflicts. Complainant claimed that the female staff that she worked with would not have felt
so threatened had she been a man. However, the Agency reasoned that such speculation,
absent actual evidence, is inadequate to support a conclusion that Complainant was harassed
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based on her sex. The Agency noted that the Lead Medical Support Assistant stated in her
affidavit that she believed there may have been a personality clash between Complainant and
other staff members based on her observation of body language and gestures, and that she did
not observe anything when she was present to indicate discrimination based on gender. The
Agency further determined that the alleged actions were not sufficiently severe or pervasive to
constitute harassment.

With regard to Complainant’s claim of a constructive discharge, the Agency reasoned that if
the actions at issue were not sufficiently severe or pervasive to constitute a hostile work
environment, then the resulting conditions were not intolerable and could not meet the standard
for constructive discharge, i.e., that a “reasonable person” in the complainant’s position would
have found the working conditions to have been intolerable. The Agency concluded that
Complainant had not demonstrated that she had been subject to discrimination or a hostile work
environment. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she is a reasonable person and a reasonable person
“would not have dealt with the emotional and verbal abuse” that she received. Complainant
maintains that she was continually subjected to reprimand in front of colleagues and veterans.
Complainant argues that she has adapted well to other work environments. According to
Complainant, she was told from her first day at work at the Agency facility that she was not
welcome, needed, or wanted there. Complainant points out that she reported she was
instructed to manipulate the scheduling of patients’ appointments in order to meet benchmarks
and that the Agency was subsequently investigated for the same practice.

In response, the Agency asserts that Complainant has not submitted any evidence on appeal to
suggest that she was subjected to a hostile work environment based on her sex. The Agency
reasons that Complainant therefore cannot establish that she was constructively discharged.

ANALYSIS AND FINDINGS

To establish a claim of harassment 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 classes; (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).

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Therefore, in order to establish her harassment claim, Complainant must show 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 a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar.
3, 1994). Complainant argues that the actions at issue occurred and she was made to feel
unwelcome, embarrassed and humiliated. However, we discern no evidence that the female
staff members who allegedly treated her in a hostile manner did so based on her sex. We note
the testimony of the Lead MSA, who opined that there was a personality clash between
Complainant and other staff members. As Complainant has not shown that the behavior of her
work colleagues was due to her protected basis of sex, she cannot establish a legally hostile
working environment under Title VII.

Complainant further contends that she had to resign due to the hostile work environment. As
such, Complainant maintains that she was constructively discharged from the Agency. The
central question in a constructive discharge case is whether the employer, through its unlawful
discriminatory behavior, made the employee's working conditions so difficult that any
reasonable person in the employee’s position would feel compelled to resign. Carmon-
Coleman v. Department of Defense, EEOC Appeal No. 07A00003 (April 17, 2002).

The Commission has established three elements which Complainant must prove to substantiate
a claim of constructive discharge: (1) a reasonable person in Complainant’s position would
have found the working conditions intolerable; (2) conduct that constituted discrimination
against Complainant created the intolerable working conditions; and (3) Complainant’s
involuntary resignation resulted from the intolerable working conditions. See Walch v.
Department of Justice, EEOC Request No. 05940688 (April 13, 1995). As noted above,
Complainant failed to provide any persuasive evidence to support her contention that she was
subjected to a hostile work environment based on her protected class of sex. Therefore, we
find that Complainant has not established her claim of constructive discharge.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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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.
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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

January 31, 2017
Date