Lael G.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Aug 10, 2020

2019004757 (E.E.O.C. Aug. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lael G.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2019004757 Hearing No. 531-2017-00131X Agency No. HHS-NIH-OD-136-16 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the March 11, 2019, decision of an Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint claiming 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.2 BACKGROUND During the period at issue, Complainant worked as a Systems Accountant (team lead), 0510, GS- 14 at the Agency’s Office of the Director, National Institutes of Health Business Systems in Bethesda, Maryland. 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. 2 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action. 2019004757 2 On August 3, 2016, Complainant filed a formal EEO complaint claiming that the Agency subjected her harassment based on her sex (female) when, on June 29, 2016, during a meeting with a male co-worker (“CW1”), Complainant felt threatened when he became extremely aggressive and combative, and he called her derogatory names. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On November 26, 2018, the Agency submitted a motion for a decision without a hearing and Complainant filed a response. On March 11, 2019, the AJ issued a decision by summary judgment in favor of the Agency. As previously stated, the record does not indicate that the Agency submitted a final order adopting the AJ’s decision. Therefore, the AJ’s decision is the final Agency action. See 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that there are material facts at issue. However, to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). 2019004757 3 Here, while Complainant has, in a very general sense, asserted that facts are in dispute, she has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute concerning facts that are material to the adjudication of her claim. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Harassment To establish a claim of discriminatory environment 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 a protected basis - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record supports that the AJ properly determined that Complainant had not demonstrated that the Agency subjected her to discriminatory harassment. In her affidavit, Complainant testified that during a June 29, 2016 meeting, CW1 called her “sweetheart” and continued to threaten and disrespect her through his tone and body language. Complainant explained that CW1 lunged at her with a water bottle in his hand and she “froze” because she believed that he was going to hit her. Complainant further explained that CW1 then left the room but returned, without having calmed down, with her first-level supervisor (“S1”) who was now present at the meeting. Complainant noted that S1 instructed CW1 not to call her “sweetheart,” but Complainant stated that CW1 became “even more combative, disrespectful, and disruptive.” Complainant indicated that she reported her concerns to the Administrative Officer and called campus security because she was terrified and feared for her safety after CW1’s actions during the June 29, 2016 meeting. Complainant explained that she could not eat or sleep for one week and she sought help through the Agency’s Employee Assistant Program. Complainant further stated that management took one month to respond and failed to properly address her concerns. However, Complainant acknowledged in her June 1, 2018 deposition, that S1 took immediate action after the June 29, 2016 incident. 2019004757 4 Specifically, Complainant stated that S1 instructed her on June 29, 2016 to cancel all remaining meetings she had scheduled with CW1 which resulted in her not working directly with CW1 after the June 29, 2016 incident.3 We further note that Complainant acknowledged in her deposition, that she did not recall whether she reported to S1 the occasions when CW1 called her “anything but” her name from the time she started working at the Agency on May 1, 2016 through June 26, 2016. Complainant admitted that she did not instruct CW1 to refrain from calling outside of her name before June 26, 2019. Complainant explained that she remembered CW1 calling called her “dear” and “sweetheart” on June 27, 2016 because CW1 called her these names multiple times that day. However, Complainant also noted that CW1 was “just rude to everyone” and he would yell at women and he would send “nasty” emails to men. A reasonable interpretation of CW1’s calling Complainant “dear” and “sweetheart” indicates that these references were sex-based. However, these incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile work environment/harassment in violation of Title VII. Although Complainant states that CW1 called her other names before the June 29, 2016, Complainant does not recall the names, or indicate that she reported these incidents to management or that she instructed CW1 to refrain from calling her outside of her proper name before June 26, 2019. As such, the essence of Complainant’s complaint centers around one altercation between Complainant and CW1 on June 29, 2016. We have held that claims of an isolated incident of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). We conclude that the incident alleged, even if true, is isolated and of insufficient severity to establish a violation of Title VII. We further find that Complainant has failed to establish a claim of discriminatory harassment in violation of Title VII because there is no basis for imputing liability to the Agency as employer. It is undisputed that CW1 was not a supervisor, but rather was Complainant’s co-worker. In the case of co-worker harassment, as here, 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 can show that it took immediate and appropriate corrective action. Here, the record supports that S1 took immediate action after CW1 referred to Complainant as “sweetheart,” “dear,” and “lady” during the June 29, 2016 meeting despite her instruction for him to stop. First, S1 testified that she contacted employee relations to report the incident and to seek advice on a course of action. Next, S1 stated that she called NIH CIVIL and reported what she witnessed on June 29, 2016 as well as reported that she had heard from other witnesses that CW1 had lunged at Complainant with a water bottle. 3 Complainant testified that CW1 retired from the Agency in 2017. 2019004757 5 S1 also disclosed to the NIH CIVIL that another female employee acting in the Lead Financial position had previously requested to be excused from working with CW1. As instructed, S1 requested that the employee provide a witness statement to NIH CIVIL. S1 also immediately made arrangements with the Change Management Director (“CM Director”) to move Complainant’s office space, located next to CW1’s office, to a vacant area designated for a CM hire, because Complainant indicated that she felt physically threatened by CW1. S1 explained that the new office location was on the other side of the building and was also closer to S1’s office. S1 clarified that while this process occurred, neither Complainant nor CW1 were on the building premises. S1 noted that CW1 teleworked on June 30, 2016, Complainant teleworked on July 1, 2016, and Complainant began working at her new office on July 5, 2016. Although S1 indicated that she was out of the office from July 5, 2016 through July 8, 2016 on a scheduled vacation, she began drafting a Letter of Expectation for CW1 once she returned to the office on July 11, 2016 and she had the letter ready for review by employee relations on July 12, 2016. S1 then stated that employee relations contacted her on July 15, 2016 and informed her that she needed to conduct a management investigation and provided her guidance on how to begin this process. Meanwhile, S1 explained that she received feedback on July 22, 2016 on her Letter of Expectation, and on July 26, 2016, she received clarification on how to proceed with the management investigation. Nevertheless, S1 contacted the Office of the Director, Executive Office on July 28, 2016 because she was concerned about any delay with resolving this matter, given that she had a scheduled surgery appointment on August 2, 2016. However, S1 was informed to wait for the results of the management investigation before deciding on disciplinary action. Meanwhile, S1 issued on August 1, 2016, Cease and Desist letters, provided by employee relations, to both Complainant and CW1 instructing them to refrain from communicating with each other until the management investigation was completed. S1 also acted on the Executive Office’s recommendation that she relocate CW1’s office temporarily to an entirely different location. CW1’s duty station was changed on August 3, 3016, the management investigation began on August 15, 2016, and as of September 20, 2016, S1 stated that she was currently waiting for the results of the report. Our review of the record supports that S1 took immediate corrective actions in response to CW1’s behavior towards Complainant, and there is no indication of additional incidents reported. Therefore, we find that there is no basis for imputing liability to the employer and Complainant has failed to establish a claim of discriminatory harassment in violation of Title VII. Accordingly, we AFFIRM the AJ’s decision finding no discrimination. 2019004757 6 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. 2019004757 7 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 August 10, 2020 Date