0120152346
11-21-2017
Sofia W,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sofia W,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152346
Agency No. 200J-0556-2014102992
DECISION
On July 1, 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 June 19, 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 the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Dental Assistant in a clinic at the Lovell Health Care Center in North Chicago, Illinois.2 On June 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of sex (female) and reprisal for prior protected EEO activity.
Investigation
After two amendments by Complainant, the Agency accepted the following matters for investigation.
1. On October 23, 2014, based on reprisal, management issued Complainant a letter of counseling (LOC).
2. On October 24, 2014, based on reprisal, management issued Complainant a yearly performance rating of "fully successful," which was two rankings lower than her rating from the prior year.
3. Between August 2012 and January 6, 2015, based on sex, the Agency subjected Complainant to a hostile work environment, as evidenced by incidents including inappropriate comments by a male coworker (C1), physically threatening and verbally aggressive behavior by C1, placement of her workspace near C1, disregard of safety and cleanliness protocol by C1, destruction of the cleanliness and organization of Complainant's workspace, and questioning about the status of her EEO case.
Additionally, the Agency dismissed Complainant's claim that, on June 10, 2013, the Dental Services Chief (S1)3 assigned Complainant away from Special Programs and, when Complainant objected, responded "If you are not going to be positive or a team player then..." The Agency dismissed the reassignment claim pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact, stating that Complainant did not initiate EEO contact until May 13, 2014. However, the Agency stated that it would consider the incident as background evidence for Complainant's harassment claim.
Complainant's Statement
In an affidavit, Complainant stated that C1 tried to intimidate women by coming after them physically or being verbally aggressive. Complainant stated that she submitted Reports of Contact to management after various harassing incidents with C1. Complainant stated that she was stressed because C1 was physically threatening. Complainant stated that the Agency did not address her claims, said that it would be handled, or was dismissive about her concerns. Complainant stated that management failed to provide a safe working environment. Further, Complainant stated that she was first hired as temporary and she feared not being renewed if she pursued her allegations.
Agency's Statement
The Agency provided the information that follows about Complainant's claims.
1. The Clinic Department Head (S2)4 stated that he drafted an LOC for Complainant because she was insubordinate to her immediate supervisor (S3). In an email, Complainant said S3 had poor management skills, lacked leadership skills, and was incompetent. S2 stated that Complainant has a right to make complaints in a professional manner, but the LOC addressed the inflammatory nature of Complainant's email to her supervisor, S3.
2. S2 stated that he, S3, and the Assistant Director for the Directorate discussed Complainant's performance and agreed on the rating of "Fully Successful." S2 stated that they submitted each rating, including Complainant's, to Human Resources for approval. Also, S2 stated that management used VA Form 0750 for instructions and guidance. He stated Complainant received "Exceptional" in Care of Rooms and Instruments and "Fully Successful" for Dental Assisting, Patient Relations, and Corporate Citizenship. S2 stated the elemental ratings rendered an overall performance rating of "Fully Successful."
3. Management stated that Complainant submitted Reports of Contact (ROC) about her exchanges with C1, both while alone or in the presence of others. She also expressed concern about C1's interactions with other employees. Management stated that a Letter of Inquiry (LOI) was issued to C1 on October 15, 2012 with follow-up on November 15, 2012. On November 15, 2012, S1 spoke with C1 about the way in which he spoke to his colleagues. During the instant EEO investigation, C1 denied making many of the comments Complainant alleged or stated they were taken out of context and were not of a sexual nature. Management stated that it could be challenging to address issues between coworkers because they had to work together and be in the same area sometimes. The Agency stated the only alternative would be different departments.5 S1 stated, "[C1] has a unique personality that not everyone likes to work with. He can rub people the wrong way sometimes, myself included." S1 stated that he tried to give C1 "constructive criticism."
The record contains two LOIs, one dated October 15, 2012 and the other December 14, 2012, referring to Complainant's allegations against C1 and asking C1 for explanation to determine if corrective action is warranted. The Agency acknowledged that the provider Complainant worked with was next to the provider with whom C1 worked.
As to C1's workspace, S2 stated that C1 had to leave the clinic for a while so Complainant was asked to substitute for him. S3 found some areas in his workspace were clean and some were dirty, and she brought the matter of the dirty areas to C1's attention. There was no evidence that C1 intentionally left any areas dirty. Regarding Complainant's workspace, S1 stated that it is not unusual for a staff member to use another person's operatory and forget to clean it. S1 stated that he has done it himself before.
Regarding an inquiry about EEO status, a coworker stated that it was no secret that Complainant filed an EEO complaint because Complainant would talk about it in the break room or at lunch. The coworker stated that she probably asked Complainant about the status just out of curiosity.
Regarding the June 2013 reassignment, S1 stated that he wanted to keep Complainant busy. He stated that Complainant was not assisting a full-time provider at the time and the perception was that Complainant did not have a full-time list of duties. S1 assigned Complainant to a different provider to ensure that she had a full complement of tasks. He noted that the newly-assigned provider (P1) enjoyed working with Complainant. S1 stated that once Complainant began working with a full-time provider, P1, she was a "stellar employee." He stated that the two were a "fantastic team."6
Following 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) or an immediate final decision by the Agency. On February 23, 2015, Complainant requested an immediate final agency decision. Pursuant to 29 C.F.R. � 1614.110(b), the Agency issued a final decision on June 19, 2015. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency stated that management acted on Complainant's claims of harassment. The instant appeal from Complainant followed.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Separately, to establish a claim of harassment 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).
First, for disparate treatment, even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. Next, we agree with the Agency that the June 2013 reassignment is procedurally deficient pursuant to 29 C.F.R. � 1614.107(a)(2), but it is appropriate to consider it as background evidence for Complainant's harassment claim.
For (1), the Agency stated that it issued Complainant an LOC for insubordination to her supervisor. The record contains an email from Complainant to her supervisor, S3, questioning her supervisory and leadership skills. As to (2), the Agency stated that it issued Complainant's performance appraisal based on Agency instructions and guidance, and after review by Human Resources. Regarding (3), the Agency stated that it addressed Complainant's concerns with her coworker, C1, and that it was challenging to address disagreements between coworkers because of the logistics of the dental clinic workspace. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
Regarding hostile work environment, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on sex or reprisal. The record in total suggests that Complainant and C1 did not get along and had difficulties in the workplace. However, the record does not show that C1's treatment of Complainant was based on a protected class or that the Agency failed to address Complainant's concerns. We find that, beyond her bare assertions, Complainant has produced no evidence that the actions of C1 or the Agency were based on discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 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
November 21, 2017
__________________
Date
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 Complainant began her position in a temporary status with the Agency effective May 7, 2012. On February 12, 2013, the Agency changed Complainant to a full-time permanent status.
3 S1 was Department Head from February 2011 to April 2013. During the investigation, S1 stated that he no longer works at the Agency so he does not have access to Agency materials regarding Complainant.
4 S2 became Department Head on July 15, 2014.
5 In November 2014, the Agency offered Complainant a transfer it called a "lateral move." Complainant declined the offer stating "I will NOT accept a transfer to any department with worse parking and a more troublesome commute." Further, Complainant stated that she wanted to continue working with veterans and not Navy recruits. Complainant stated that the offer was a downgrade. She asked for a transfer to a specific dental clinic or another department in the Agency with equal or greater pay. The Agency stated that it would look into the feasibility of Complainant's requested transfer. It noted that her requested location did not encompass work with veterans. The record indicates C1 is no longer with the Agency as of December 2014.
6 P1 left the clinic in 2014, prior to Complainant's 2013-14 performance evaluation. Complainant alleged that P1 left the clinic due to his own unaddressed harassment claims.
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