Latoya D.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 24, 2017

0120152594 (E.E.O.C. May. 24, 2017)

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

Latoya D.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120152594

Agency No. 200I-0619-2014103757

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated June 16, 2015,
finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

The record indicates that the Agency framed Complainant’s complaint, filed on September 3,
2014, as whether she was discriminated against based on sex (female) when she was subjected to
a hostile work environment in that:

(1) Ongoing, she stated that her first level supervisor (S1) bullied her and yelled at her on a
consistent basis;

(2) On May 21, 2014, she and her second level supervisor (S2) were in a conversation
regarding overtime and S1 entered the conversation and stated, “no one is ever around to
work overtime because everybody wants to leave early,” or words to that effect;

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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(3) On May 21, 2014, during the same conversation in claim 2, S1 became belligerent
towards her and invaded her personal space and slammed the door in her face; and

(4) On May 21, 2014, she stated that her coworker (Coworker A) stated, “Motherfuckers
don’t want to work on a regular day, so why are they worried about overtime,” or words
to that effect, and after she responded to the comment, she got into a verbal altercation
with the coworker and voices were raised and profanity was used which resulted in the
Agency police being called to the department.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

At the relevant time period at issue, Complainant was employed as a Medical Supply Technician,
GS-5, at the Central Alabama Veterans Health Care System, Montgomery, Alabama.
Complainant claimed that she was subjected to harassment from S1, who retired in August,
2014. 2

With regard to claim (1), management denied having any knowledge of S1 bullying Complainant
and yelling at her as alleged other than the May 21, 2014 in claim (3). We note that Complainant
does not provide any specific incident dates of the bullying or yelling in claim (1).
Furthermore, there is no evidence that Complainant brought this matter to management’s
attention at the time of the incidents and she acknowledged such failure. Although claim (1) by
itself fails to state a claim of harassment, we will consider claim (1) along with Complainant’s
other alleged incidents in determining the merits of her harassment claim.

2 The record indicates that S1 submitted his “report of contact” concerning the May 21, 2014
incident. Because he has retired from the Agency, he declined to participate in the investigation
of the instant complaint.
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With regard to claims (2) and (3), Complainant claimed that on May 21, 2014, when she and S2
were conversing regarding overtime outside of the offices of S2 and S1, S1 interjected in the
conversation and made a comment to her that “no one is ever around to work overtime because
everybody wants to leave early.” Complainant stated that comment by S1 was referring to
Complainant as the person leaving early. Complainant indicated that she told S1 his statement
was inaccurate and S1 became belligerent and walked toward her and yelled at her. Complainant
stated that she then “did respond back to him in the same tone of voice he was yelling at me
with.” Complainant also told S1 that she will get her husband “up here”. S2 tried to deescalate
the situation. As Complainant was walking toward the door to talk to S2, S1 slammed the door
into her face. Complainant then knocked on the door so she could speak with S2 who opened the
door and made a comment to S1 that his actions were not professional. Complainant and S2 then
went to her third level supervisor (S3) and then went to Human Resources (HR) who advised
them to write statements.

S3 indicated that after the events above, she immediately reported the incident to HR officials
who recommended moving S1 out of his work facility, and not to have any contact with
Complainant. S1 was subsequently moved out of the facility. S1 took extensive leave thereafter
and ultimately retired on August 31, 2014.

With regard to claim (4), Complainant indicated that after her argument with S1, as she was
walking pass Coworker A on the hall way, Coworker A said, “Motherfuckers don’t work on a
regular day so why are they worried about overtime.” Complainant then told Coworker A, “You
are the main one who does not work so what’s your problem?” Complainant stated that
Coworker A and Complainant then had a verbal confrontation which “consisted of raised voices
and profane language on both of our parts.” The confrontation became so heated that Agency
police were called. Complainant indicated that she was never subjected to harassment by
Coworker A other than on this one occasion. Coworker A denied harassing or using profanity
toward Complainant on the date of the incident and stated it was Complainant who cursed at
him.

After a review of the record, we find that S1’s behavior and Coworker A’s behavior (which was
just one alleged incident) were not sufficiently severe as to constitute a hostile work
environment. Even if we consider there may have been other incidents as Complainant alleges
(without much specificity) regarding S1, we find no indication that the actions by S1 (or
Coworker A) were motivated by discrimination. We note that when management was informed
of S1’s behavior of May 21, 2014, the Agency took prompt and appropriate corrective action by
reassigning S1 so that S1 was not Complainant’s supervisor. Based on the foregoing, we find
that Complainant has failed to show that the Agency’s action was motivated by discrimination as
she alleged.

CONCLUSION

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Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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

May 24, 2017
Date