Laurice S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120182457 (E.E.O.C. Sep. 30, 2019)

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

Laurice S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120182457

Agency No. 200I-0621-2017104688

DECISION

On July 12, 2018, 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
June 11, 2018, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision, (FAD) correctly determined that Complainant was not
subjected to discrimination and harassment based on her sex, disability, and in reprisal for prior
EEO activity when:

1. On December 7, 2016, a coworker, C1 threw a bucket at Complainant, which hit her in the
head and required four (4) stitches;

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 December 9, 2016, the facility Chief of Police refused to allow Complainant to file
assault charges against C1 and told her that he already heard about the episode and what
C1 did was an accident;
3. On December 13, 2016, the facility EEO Manager told Complainant that she did not think
she could file a hostile work environment claim over the issue because it was a one-time
incident;
4. On December 15, 2016, when Complainant went to the facility’s workers compensation
representative to ask about her options with respect to her anxiety brought on by the
incident, he tried to discourage her from pursuing any type of claim by stating, “In all of
my years, anxiety is rarely an approved diagnosis to get more time off from work;”
5. On December 21-22, 2016, several coworkers approached Complainant and made various
statements in support of C1, such as: a) “You know (C1) didn’t mean to do that;” b) “Oh,
so you’re the one (C1) knocked out;” and c) “You need to watch your back;”
6. During the period of December 21, 2016 - June 15, 2017, three male coworkers, who are
friends of C1, consistently tried to upset Complainant by yelling at and slamming metal
equipment around her, which led her to request to be moved out of that area;
7. In January 2017, when Complainant went to the facility’s Employee Assistance Program
(EAP) representative to ask for help with respect to her symptoms of anxiety, she was told
that because it was a work incident, she would have to find an outside source for
psychological treatment; and
8. Since June 15, 2017 (ongoing), although C1 has been reassigned to another work area, he
walks by Complainant’s office twice per week to enter the gym despite the fact there is an
alternate access, and he is allowed to use the same break room and locker room that she
has to use.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Supply
Technician at the Agency’s Sterile Processing, James H. Quillen Veterans Affairs Medical Center
facility in Johnson City, Tennessee. On November 27, 2017, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of sex (female), disability (mental),
and reprisal for prior protected EEO activity as set forth above.

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. In accordance with Complainant’s request, 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.

Issue 1:

Complainant explained that on the date in question she heard a noise to her right; she looked over
and saw one of her coworkers, C2, standing to the right of C1. Complainant did not recall what
was stated but knows she heard something that made her look towards her right.
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She saw C1 grabbing a bin with his left arm and throw it towards his left in her direction. The
impact of the bin knocked off her glasses and upon touching her forehead, she realized that she
was bleeding heavily. Several of her coworkers came immediately to her aid, and C1 also came
over and apologized. Complainant accepted his apology.

Earlier that same day, Complainant had a conversation with C1 and another coworker. According
to her, C1 was relaying an incident that happened to him while riding his bike to work.
Complainant maintained that C1 was “furious” and stated that if the driver had exited their vehicle
he would have killed him/her with his knife. Complainant attested that when a management
official, S1 and another member of management visited her at the Emergency Room they told her
that they knew of C1’s previous disruptive behavior and how he had “acted out” his anger.

S1 attested that on the day in question, C1 entered her office and stated that she needed to come
into “processing.” According to S1, C1 explained that C2 had startled him by placing an open-
faced storage bin on his workstation and he reacted by throwing it, striking Complainant. She
stated that they proceeded into the processing area to assist Complainant; and that several other
coworkers were aiding Complainant, and she was taken to the facility emergency department for
evaluation and treatment. S1 maintained that Complainant’s husband was contacted and was in
route to the facility when S1 returned to the department.

S1 stated that she later returned to the emergency department to check on Complainant. According
to S1, the treating physician did not state to Complainant to take off work but due to effects of the
injury, she was granted authorized absence. S1 asserted that an accident report was submitted by
the Assistant Chief, S2.

In explaining his conduct, C1 stated that he was sitting at his work station on the computer, and
the room was very quiet, when C2 came up behind him and slammed a plastic bin on the table
beside him. C1 stated that he had a flash back to Iraq, and thinking there was an explosion beside
him, he grabbed the bin and threw it to his left striking Complainant in the forehead. Following
the incident, he left the area to contact S1. C1 stated that the police deemed the incident an
accident; and that he received a 10-day suspension (with no pay) as discipline for the incident.

C2 attested that she was in the room when the event in question took place. She denied hearing
any prior outbursts from C1; and she is aware that he was disciplined for the incident. Two other
coworkers who witnessed the incident affirmed C2’s explanations; and described their roles in
assisting Complainant.

Issue 2:

According to Complainant, the facility Chief of Police (S3) refused to allow her to file assault
charges against C1 and told her that he “already heard about the episode and what C1 did was an
accident.”

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She stated that she felt diminished because she was a female who was a “victim of an assault by
one of their male acquaintances; and that S3 told an Officer (O1) to have her “write down a
statement on a piece of paper.” She maintained that S3 did not take the time or acknowledge her
request to file or press charges against C1 for the “assault and battery.”

S1 stated that she understood that no charges were filed against C1 because, by Complainant’s
own admission, the bin was not thrown directly at her and it was an accident. According to S1,
Complainant did not believe the bin was thrown purposefully at her.

S3 attested that Complainant “presented” to file a police report two days after the incident took
place. He maintained that Complainant did not provide a written statement until about one month
later, after she had obtained Union representation. S3 stated that based on the facts presented by
Complainant and that of witnesses, the incident in question was deemed an accident, and did not
warrant pursuing criminal charges; and that notwithstanding being deemed an accident,
Complainant was referred to the Human Resources for possible administrative action. He added
that C1 immediately apologize to Complainant; and that Complainant told the reporting VA Police
Officer that it was an accident and unintentional act towards her.

Issue 3:

According to Complainant, the facility EEO Manager (EM) told her that she did not think
Complainant could file a hostile work environment claim over the issue “because it was a one-
time incident.” Complainant stated that EM then asked if she wanted to be moved to a different
area where she felt “less offended,” and Complainant responded that C1 should be the one to be
moved.

EM stated that, prior to meeting with Complainant about nine months after the bin-throwing
incident, she did not know Complainant. She maintained that whenever she explained what a
hostile work environment consists of, she tells the individual that generally it takes a severe and
pervasive pattern of serious instances to establish a hostile work environment and it concerns
frequency and severity. She added that if Complainant had contacted her on the day of the incident
and asked a general question about hostile work environment, this would have been the explanation
she would have given. EM stated that if she had met with Complainant shortly after the incident,
she would have noticed the injury and would have understood that under the hostile work
environment directive, this constituted a more severe incident. She averred that on the date she
documented meeting with Complainant, she provided the information concerning hostile work
environment and she explained how to file an EEO complaint.

Issue 4:

According to Complainant, she spoke to the facility’s Workers Compensation Representative
(WCR) to ask about her options with respect to her anxiety brought on by the incident, and he
“tried to discourage her from pursuing any type of claim” by stating, “In all of my years, anxiety
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is rarely an approved diagnosis to get more time off from work.” Complainant believed WCR was
deliberately trying to minimize her mental injuries to protect the male “assailant.”

WCR denied making the statement attributed to him by Complainant. He stated that Complainant
came to his office about a week after the bin-throwing incident stating that EAP had suggested that
she go to a psychologist outside of the Agency and she asked him for a list of providers. WCR
stated that he told Complainant that they did not maintain a list of providers but that she could go
to the Approved Clinical Services (ACS) website and see if any local providers were available or
that she could contact a provider using the phonebook to see if they accepted ACS.

He added that he advised Complainant that she could write a statement as to how her new condition
was associated with her original injury; and that she could provide supporting medical so that the
Department of Labor could decide whether to consider the new condition when they adjudicated
the claim.

Issue 5:

Complainant alleged that several coworkers approached her and made various statements in
support of C1 including, “You know C1 didn’t mean to do that;” “Oh, so you’re the one C1
knocked out;” and “You need to watch your back.” She stated that those who made the comments
were friends with C1 and were expressing their displeasure with and criticism of her reporting of
his assault.

S1 stated that she was aware of the comments “Oh, so you’re the one C1 knocked out;” and that it
was made by C5 when he came in to the “service” while off on leave. According to S1, C5 told
her that he apologized to Complainant as he was unaware of the severity of the incident. She
denied being notified by Complainant of the remaining two comments.

C5 attested that he did make the alleged comment. He explained that he was visiting after a
doctor’s appointment, was being introduced, and was trying to make light of a situation that he
barely knew anything about. C5 stated that when he returned to work, S1 informed him of the
severity of the situation, and that he apologized to Complainant.

The other coworker, C6, alleged to have made the remaining two comments did not recall making
them.

Issue 6:

During the period of December 21, 2016 — June 15, 2017, Complainant maintained that three
male coworkers, who are friends of C1, consistently tried to upset her. According to Complainant,
C7, C8, and C9 would “yell” and slam metal equipment around her, which led her to request to be
moved out of that area; and that they had not engaged in this loud and disruptive conduct before
she complained about the incident involving C1.

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S1 attested that Complainant did not inform her that other employees were slamming containers
and yelling to upset her. She maintained that Complainant told her that just walking through the
doors or being in the same area where the bin-throwing incident happened caused her anxiety. S1
stated that Complainant did not state any specific instances which contributed to her anxiety; and
that Complainant did not make any statements relative to the noise levels in the “service.”

She explained that the nature of the work performed in Sterile Processing is very loud because the
work stations are stainless steel and they have heavy instrument sets that when placed on the
stainless tables produce loud clanging/banging noises. S1 asserted that when Complainant
informed her that walking through the door triggered her anxiety and that she was suffering from
Post-Traumatic Stress Disorder (PTSD) from the bin-throwing incident, she suggested that it might
be in Complainant’s best interest to seek assistance from the EAP and possibly request a reasonable
accommodation.

S1 attested that had she been made aware of three male coworkers yelling at and slamming
equipment around Complainant to get her attention, she would have dealt with the inappropriate
behavior.

C4 asserted that she was in the Sterile Processing Service assembling trays with Complainant when
she heard some noise coming from the bins and items being removed from the cart wash rack and
put up on the drying wire shelves. She did not recall making the comments ascribed to her by
Complainant. C4 also attested that Complainant became anxious and nervous over the same noises
she heard; and that she listened to Complainant’s concerns about the noise and encouraged her to
speak with management about it.

C7 denied being involved in this event and stated that he was on sick leave (SL) on the day in
question.

Issue 7:

According to Complainant, she went to the facility’s Employee Assistance Program (EAP)
representative, EAPR, to ask for help with respect to her symptoms of anxiety, she was told that
because it was a “work incident,” she would have to find an “outside source” for psychological
treatment. According to Complainant, EAPR told her to contact P1, a Psychologist. Complainant
asserted that P1 told her during their telephone call that she would need to find an “outside source”
and that she “did not want to sell her short” since it was a work-related incident. Complainant
stated that P1 attempted to make certain that she was not “homicidal or suicidal” and informed her
that if she was in “dire need,” to call her at her extension.

EAPR attested that she did not recall meeting Complainant prior to May 2017. She explained that
when an employee contacts the EAP asking for help, she explains the process, gathers contact
information from the employee, and contacts the provider to schedule an appointment. EAPR
stated that after she provided the information to the provider, she received notification from the
provider about when the employee was contacted.
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P1 explained that according to her notes on Complainant’s encounter, Complainant reported being
a recent victim when a container of sterile equipment hit her and resulted in a concussion and
lacerations; and that at the time of the encounter, Complainant had not returned to work and
expressed that she was experiencing anxiety as a direct result of the alleged incident.

P1 attested that given that Complainant was not working at the time, was in contact with union,
had applied for workers’ compensation, and was seeking mental health evaluation treatments that
it was foreseeable that there might be litigation, therefore, she encouraged Complainant to seek
evaluation and treatment in the community to ensure impartiality and most thorough care without
question of a conflict of interest.

P1 averred that she provided the recommendation of a doctor in the community; provided
Complainant with her direct contact information; and encouraged her to contact P1 if she had
immediate needs prior to obtaining a community appointment. She explained that formal
psychological assessments are beyond the scope of EAP services; and that, at the time, the reasons
for the referral were explained to Complainant.

Issue 8:

According to Complainant, since June 15, 2017 (and ongoing), C1 has been reassigned to another
work area, but he walks by Complainant’s office twice per week to enter to the gym despite the
fact there is an alternate access, and he is allowed to use the same break room and locker room that
she has to use. Complainant alleged that she complained to S1 and S2 about their allowing C1 to
have contact with her in the department’s break room and locker room but that they did nothing to
stop the direct contact despite her pleas.

S1 stated that C1 was detailed out of unit for over a seven-months, after the bin-throwing incident;
and that the month he returned from the detail, Complainant was voluntarily detailed and did not
utilize the lockers and breakroom in the area. According to S1, when C1 returned he utilized the
locker and breakroom areas.

She stated that two months after C1’s return, she was notified by EM that Complainant had filed
an EEO complaint that included the bin-throwing incident. S1 indicated that she immediately
spoke with C1 about it and he responded that if he saw Complainant’s door open, he did not go by
her door; and that in the discussion with C1, he stated that during the prior 6 - 8 months, he did not
go by Complainant’s office at all and took the longest route to access the gym and to avoid any
possible contact.

S1 maintained that C1 had submitted report of contacts stating that over a three months period
after he returned from his detail, there were at least three occasions where he worked out in the
gym. According to S1, the report of contacts stated that Complainant entered the gym, made eye
contact with C1 and proceeded into the restroom.
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She averred that the report of contacts stated that in all three occurrences, C1 did not see
Complainant leave because he entered the other room (behind a closed door) in the gym and
“worked out” in there.
C1 confirmed that he was reassigned to another work area about a month after the bin-throwing
incident. He stated that for the past 10 years, he has used the gym almost every day. He explained
that while there was only one entrance to the gym that is across and diagonal from Complainant’s
office, once inside the gym there are two exits. C1 indicated that once he was reassigned, he rarely
used the department’s breakroom and that he always avoided the unit when he knew Complainant
was working. He asserted that he has never used the women’s locker room.

C3 averred that after the bin-throwing incident, C1 could remain in the department in proximity
of Complainant for several months, then he was detailed to another department for couple months
but still in proximity of Complainant because the other department is “closely” with theirs. She
stated that C1 was finally detailed out of the unit; and that she witnessed him entering the unit
breakroom, walking down the hallway in front of the department, and stopping to talk to other
employees in front of the department’s doors. C3 averred that C1 was then brought back into the
department after Complainant’s exit.

In her rebuttal statement, Complainant reiterated that she was subjected to a hostile work
environment; and that she continues to be subjected to the same conduct.

CONTENTIONS ON APPEAL

Among other things, Complainant reiterates her allegations. She asserts that the Agency has never
completely acknowledged the full scope and details of her discrimination, retaliation, and
continuing hostile work environment claims; and that it has been discriminatorily requiring that
she fragment her hostile work environment charges into “discrete events” and has refused to
consider all of the hostile work environment incident in their totality.

She also asserts that the Agency deviated from operational protocols by concealing existence of
C1’s Reports of Contact during 2017 as part of its continuing hostile work environment and its
continuing efforts to prejudice her while protecting C1 from disciplinary proceedings and
protecting itself from additional EEO claims of discrimination/retaliation.

Complainant maintains that the FAD accepts the factual versions propounded by management and
staff who were retaliating and discriminating against her; that these biased versions have not been
subjected to due process confrontation and cross- examination; and that the FAD ignored
additional retaliatory events and circumstances which demonstrate the retaliation of her
supervisors, who she maintains are simply not telling the truth.

The Agency, in pertinent part, maintains that its FAD should be affirmed.

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STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To establish a claim of harassment and a hostile work environment, a complainant must show
that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on their 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). The harasser’s conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

After a careful review of the record, we find that Complainant’s hostile work environment claim
fails. Looking at these incidents in their totality, we simply find no persuasive evidence that any
of these matters took place because of Complainant’s sex, disability, or were in reprisal for prior
EEO activity. At the outset, we note that she was not involved in any prior EEO activity before
the instant complaint. By all accounts, C1, accidently, injured Complainant. An act for which he
apologized, and Complainant accepted that apology. We further note that C1 was punished for his
negligence and was reassigned for a time. With respect to the actions of S3, EM, EAPR, WCR,
and P1, we find no evidence that their actions were based on discriminatory animus. In each case,
the record indicates that, to the best of their abilities, they advised Complainant on what her options
were with respect to their specific expertise.

With regard to EM, we specifically find that no evidence that she tried to discourage Complainant
from engaging in EEO activity when she explained to her what an employee must establish in
order to prove that they were subjected to harassment. We must, however, indicate that EM erred
by stating that the conduct must be severe and pervasive. The correct standard is severe or
pervasive. Because we do not find the conduct at issue here to be either, however, we find EM’s
error to be harmless.
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Likewise, with respect to issues 5 and 6, concerning Complainant’s and C1’s coworkers, we find
that although Complainant may have found their behavior annoying, there is no evidence that
discrimination played a role. The Commission notes that Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant
did not describe or provide evidence of any severe or pervasive management conduct that altered
the terms and conditions of her employment; and she did not describe any action taken by
management, C1 or any of her coworkers that was based on her membership in any protected class.
Finally, we note that because there was no evidence that C1’s action in throwing the bin was based
on discriminatory animus, we do not find that the Agency was obligated to ensure that he and
Complainant remained separated.

We note Complainant’s assertion that her supervisors’ affidavits have not been subjected to due
process, confrontation and cross-examination. However, because Complainant did not request a
hearing or avail herself of the discovery process which would have allowed for an examination of
the credibility or lack thereof of management’s explanations, we can only evaluate the facts based
on the weight of the evidence presented to us. We therefore find that Complainant has failed to
demonstrate by a preponderance of the evidence that discrimination occurred; and that the Agency
subjected her to harassment or a hostile work environment.

CONCLUSION

After a careful review of the record, as well as the contentions submitted on appeal including those
that have not been specifically addressed, we AFFIRM the Agency’s final decision.

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.
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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.
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

September 30, 2019
Date