[Redacted], Fiona L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2021005292 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fiona L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021005292 Hearing No. 550-2019-00564X Agency No. 200P-0654-2018104715 DECISION On August 30, 2021, 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 August 6, 2021, final order 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, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse, VN-0610- II/2, at the Agency’s Sierra Nevada Health Care System in Reno, Nevada. Complainant joined the Agency on May 1, 2016, subject to a two-year probationary period. She was directly supervised by the Nurse Manager. On September 19, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII when: 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. 2021005292 2 1. From July 29, 2015 to September 19, 2018, Complainant was subjected to the following acts of harassment: a. On July 29, 2015, the Staff Physician discussed in the Catheter Lab how much he used “Cialis” and complained about how expensive Cialis was. b. On August 6, 2015, the Staff Physician stated, “Why can’t we go back to the good old boys’ days in here?” after Complainant asked him to stop discussing strippers he had used to hook up on the East Coast during a medical procedure. c. On December 2, 2016, the Staff Physician subjected Complainant to an inappropriate sexual comment when he mentioned he was sleeping with hookers during a medical procedure. Complainant overhead the Staff Physician make the following inappropriate comments: “She did this to her fucking self; I am going to get her out of here”; “What do you want me to do, he has already fucked himself,” “I am not coming to fucking see him.” d. On June 15, 2016, Complainant was subjected to the Staff Physician talking about sexually explicit jokes, sleeping with “hookers, strippers, and sugar babies,” and told Complainant, “I can’t say shit without you criticizing me!” after Complainant asked the Staff Physician to stop making inappropriate comments. e. On an unspecified date, the Staff Physician stated that he would not take a position in Guam because “there’s no DVR, no Walmart, blow jobs cost $400 and hookers there all look 12 years old.” f. On October 1, 2017, the Nurse Manager failed to take appropriate action and started laughing after Complainant reported the Staff Physician’s inappropriate behavior. g. On unspecified dates, the Staff Physician refused to stop making inappropriate comments around Complainant after she requested him to stop. h. On February 9, 2018, Complainant overheard the Staff Physician state to two residents, “At this stage in my life, the only joy in my life is shaking my cock after taking a piss now.” 2. On January 25, 2018, Complainant was detailed out of providing direct patient care for alleged misconduct; and 3. On April 27, 2018, Complainant was forced to resign from her probationary position as a nurse.2 On October 17, 2018, the Agency dismissed Complainant’s formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. Complainant subsequently appealed the Agency’s decision to the Commission. 2 Complainant resigned in lieu of removal. 2021005292 3 In EEOC Appeal No. 2019000914 (March 12, 2019), the Commission reversed the Agency’s decision and ordered the Agency to process the claims in accordance with 29 C.F.R. § 1614.108. 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). Complainant timely requested a hearing. On February 17, 2021, the AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and proposed to issue a decision without a hearing in favor of the Agency. In issuing the proposal, the AJ determined that Complainant did not report the underlying incidents in claim 1 until January 2018. The AJ noted that this occurred after the Staff Physician filed a complaint against Complainant, accusing her of repeatedly undermining and second guessing his medical judgment in front of patients. The AJ ultimately proposed to find that Complainant could not prevail on her complaint. As to claim 1, the AJ determined that the record showed that, after management learned about the harassment, they promptly investigated the allegations and addressed the harassment by warning the Staff Physician about his behavior and ordering him to undergo training. As to claims 2 and 3, the AJ determined that management’s concerns about Complainant’s behavior towards the Staff Physician constituted legitimate, nondiscriminatory reasons for detailing Complainant out of direct patient care and ultimately recommending her non-retention due to her failure to demonstrate professionalism. In response to the AJ’s notice, Complainant filed an opposition, urging the AJ not to issue the proposed decision because the record showed that she had complained of harassment as early as November 2016, and the Agency did not take remedial action until a year and a half after she complained. She further maintained that there was a dispute as to whether she was subjected to reprisal when she was reassigned and ultimately forced to resign. Though the AJ found Complainant’s arguments to be unpersuasive, the AJ nevertheless decided to withdraw the notice and allowed the parties to proceed to discovery. Following discovery, the AJ reinstated the notice of intent to issue a decision without a hearing and ultimately issued a decision without a hearing on August 4, 2021, finding, in relevant part, that while the Staff Physician’s comments were “disgusting and juvenile, they [were] not ‘so severe or pervasive as to alter the conditions of [Complainant’s] employment and create an abusive working environment.’” In so finding, the AJ emphasized that the underlying comments occurred infrequently over an 18-month time frame. Further, as to claim 2, the AJ found that management had legitimate, nondiscriminatory reasons for detailing Complainant out of direct patient care in response to the Staff Physician’s complaint about Complainant. The AJ found that Complainant failed to show that this action was pretextual or inconsistent with the standard practices of the Agency. As for claim 3, the AJ found that Complainant “presented no evidence and scant argument that she suffered either reprisal or was constructively discharged.” The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2021005292 4 CONTENTIONS ON APPEAL On appeal, Complainant vehemently opposes the AJ’s decision. Through her attorney, Complainant argues that the AJ should not have issued a decision without a hearing in favor of the Agency, as there is a genuine issue of material fact as to whether the Staff Physician’s comments were sufficiently severe or pervasive to constitute a hostile work environment. She maintains that the AJ, in finding no discrimination, erred in “stating that the standard [for harassment] is severe AND pervasive.” To the contrary, she argues that a complainant need only show that the alleged conduct was either severe or pervasive, not both. Complainant also asserts that a dispute exists as to whether she was subjected to reprisal for complaining about harassment. The Agency, however, opposes the appeal and maintains that Complainant’s appeal is meritless, as she has not presented evidence that she was subjected to retaliation or constructively discharged. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In reaching this conclusion, we disagree with Complainant’s argument that the AJ applied the incorrect legal standard for harassment. 2021005292 5 As noted above, the AJ clearly found that while the Staff Physician’s comments were “disgusting and juvenile, they are not ‘so severe or pervasive as to alter the conditions of [Complainant’s] employment and create an abusive working environment,’” See AJ’s Decision at 12. Further, we also find no persuasive evidence of discrimination in claims 2 and 3. CONCLUSION Therefore, we shall AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021005292 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 22, 2023 Date