Margaret M.v.Dep't of Veterans Affairs

Equal Employment Opportunity Commission

Jan 11, 2018

EEOC Appeal No. 0120151790 (E.E.O.C. Jan. 11, 2018)

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

Margaret M.,1
Complainant,

v.

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

Appeal No. 0120151790

Agency No. 2003-0785-2013104323

DECISION

On April 21, 2015, 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
March 20, 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, in part, and REVERSES, in part, the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales Clerk, VC-
2091-02, under a temporary appointment at the Agency’s Veterans’ Canteen Service in St. Louis,
Missouri. Her tenure in the position began in April 2013 and was due to terminate on September
8, 2013. According to Complainant, during the course of her employment she was repeatedly
subjected to sexually harassing behavior by a coworker, CW1. She did not report these incidents
until mid-August 2013, when she revealed to another coworker, CW2, how she had been
harassed. On August 14, 2013, CW2 reported Complainant’s allegations to his supervisor, S1,
who also supervised Complainant. In response, S1 informed the local Agency EEO office of
Complainant’s allegations. The EEO office dispatched its Program Manager (PM1) to interview

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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witnesses, including Complainant and CW1. PM1 determined that Complainant had not been
harassed by CW1 as she claimed.

After the interviews had taken place, in the course of discussing what actions to take in response
to Complainant’s allegations, S1 disclosed to PM1 that the Agency had decided not to extend
Complainant’s employment beyond her “not to exceed” date of September 8, 2013. In order to
prevent Complainant from having any further contact with CW1, S1 decided to place
Complainant on administrative leave with pay immediately. While Complainant was on
administrative leave, the Agency entered into negotiations with her to resolve any potential EEO
claim Complainant might assert arising from the harassment to which she claimed to have been
subjected. In the course of these negotiations, the Agency extended Complainant’s termination
date beyond September 8, 2013 (Report of Investigation (ROI) at 179) and offered to return
Complainant to duty in order to resolve any potential EEO complaint. Complainant did not
accept the proposed settlement. ROI at 151. Her employment was terminated on October 19,
2013.2 ROI at 180.

In light of PM1’s conclusion that CW1 had not harassed Complainant, the Agency took no
corrective action with respect to CW1, although PM1 and S1 saw fit to warn CW1 that, due to
the Agency’s “zero tolerance” for sexual harassment, he would have been subject to immediate
removal if he had committed the acts of which Complainant accused him. ROI at 151. So far as
the record reflects, the Agency took no further action in response to Complainant’s claim of
harassment before the instant proceedings began.

On May 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and in reprisal for prior
protected EEO activity when:

1. between April 2013 and August 2013 she was subjected to sexual harassment by a co-
worker;

2. on August 22, 2013, she learned that the Agency intended to terminate her
employment effective September 7, 2013; and

3. between April 2013 and August 2013, she was subjected to hostile workplace
harassment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame

2 At the same time that Complainant reported CW1’s harassment of her, a second female victim,
CW3, accused CW1 of harassment. As part of her investigation into Complainant’s allegations,
PM1 also investigated CW3’s claims. PM1 concluded that CW3’s charges against CW1 were
also unfounded.
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provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

In that decision, the Agency found that Complainant failed to prove that the Agency was liable
for having discriminated against her. With respect to the sexual harassment claim, the Agency,
contrary to the harassment investigator’s conclusion, found that Complainant had proven sexual
harassment by demonstrating she was “subjected to conduct that was overtly sexual in nature” at
the hands of a co-worker which was “severe or pervasive enough to constitute an objectively
hostile work environment based on sex.” Final Agency Decision (FAD) at 13. Ultimately,
however, the Agency found that it should not be held vicariously liable because, according to the
FAD, the Agency proved that it had taken “prompt and effective remedial action” upon learning
of the harassment. Id at 15.

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”).

Claims #1 & #3 (Harassment)

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the
harassment affected a term or condition of employment, either unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

An agency is liable for harassment by a co-worker or other non-supervisor when it “knows or
should have known of the conduct, unless the agency can show that it took immediate and
appropriate corrective action.” See 29 C.F.R. § 1604.11(d). The appropriateness of the agency’s
conduct in response to harassment depends upon “the particular facts of the case - the severity
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and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v.
Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996); Taylor v. Dep't. of the Air
Force, EEOC Request No. 05920194 (July 8, 1992). “Appropriate corrective action” is a
response that is reasonably calculated to stop the harassment. When an agency becomes aware of
alleged harassment, the agency has the duty to investigate such charges promptly and
thoroughly. See Rodriguez v. Dep't of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29,
1996).

In this case, the Agency acknowledges in its FAD that Complainant has proven that she was
subjected to sexual harassment at the hands of her co-worker, CW1. The Agency also
acknowledges that it became aware of the pattern of harassment to which Complainant had been
subjected on August 14, 2013. Thus, the Agency will be held liable for the harassment unless it
can show that it took appropriate corrective action to prevent recurrence of the harassment. We
conclude that the Agency did not take appropriate corrective action here. CW1, the alleged
harasser, was not disciplined in any manner. Nor was he reassigned or required to undergo
remedial training.

So far as the record reflects, the only “corrective” action the Agency took was to remove
Complainant from the workplace by placing her on administrative leave. The Commission has
held that reassigning the person targeted for harassment is not appropriate corrective action. See
Taylor, EEOC Request No. 05920194, supra. (“While relocating ‘problem personnel’ would be
appropriate remedial action . . . treating the victim as one of the problem personnel was not.”)

Commission precedent holds that the consequence of a failure to prove that the Agency took
appropriate action in dealing with co-worker harassment, is the imposition of liability on the
Agency. See, e.g., * * *, v. Tennessee Valley Authority, EEOC Appeal No. 0120123132 (May
14, 2015); * * * v. United States Department of Justice, EEOC Appeal No. 0120141244 (July
22, 2014). Accordingly, under the circumstances of this case, we conclude that Complainant was
subjected to a hostile work environment due to sexual harassment and that the Agency failed to
take appropriate action that would have insulated it from liability.

Claim #2 (Notice of Termination)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
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(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency explains that Complainant was given notice that her temporary employment would
not be extended because she had demonstrated a pattern of tardiness that indicated that she was
not suited for the position she occupied. ROI at 150, 152. This is a legitimate, nondiscriminatory
reason for the Agency’s actions. Complainant adduced no evidence that the Agency’s
explanation for its action was a pretext designed to conceal discriminatory animus. Any
suggestion that Complainant was terminated in retaliation for raising a claim of sexual
harassment is unavailing. Documentary evidence shows that prior to August 14, 2013, when
Agency management first learned that Complainant had been subjected to sexual harassment, the
Agency had already made the determination not to extend Complainant’s employment. ROI at
193.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the finding of no discrimination with regard to Claim
2 and REVERSE the Agency’s final decision with regard to Claims 1 and 3. The Agency is
directed to take remedial actions in accordance with the ORDER below.

ORDER

To the extent that it has not already done so the Agency is ordered to take the following remedial
actions:

1. The Agency shall give Complainant notice of her right to submit evidence (pursuant to
the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993)) in support of her claim for compensatory damages within forty-five
(45) calendar days of the date Complainant receives the Agency’s notice. The Agency
shall complete the investigation on the claim for compensatory damages within forty-five
(45) calendar days of the date the Agency receives Complainant’s claim for
compensatory damages. Thereafter, the Agency shall issue a final decision on
compensatory damages pursuant to 29 C.F.R. § 1614.110(b), and shall pay any awarded
compensatory damages 30 days from the date of that determination.

2. Within ninety (90) days from the date this decision is issued, the Agency shall conduct a
minimum of eight (8) hours of in-person or interactive training for the responsible
management officials involved in this case regarding their obligations under Title VII
with special emphasis on management responsibilities with regard to claims of sexual
harassment and discriminatory harassment/hostile work environment.

3. Within sixty (60) days from the date this decision is issued, the Agency shall consider
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taking disciplinary action against the responsible management officials. The Agency shall
report its decision. If the Agency decides to take disciplinary action, it shall identify the
action taken. If the Agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. Training is not considered discipline.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Veterans Canteen Services facility in St. Louis, Missouri
copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer as directed in the paragraph entitled “Implementation of the
Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney’s fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§
1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right
to file a civil action on the underlying complaint in accordance with the paragraph below entitled
“Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.

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.
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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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or
your appeal with the Commission, until such time as the Agency issues its final decision on your
complaint. 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.

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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 11, 2018
Date