Adah P.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 31, 20180120150722 (E.E.O.C. Jan. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adah P.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120150722 Hearing No. 451-2011-00320X Agency No. 2003-0740-2011104619 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the Agency’s November 13, 2014 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist at the Agency’s Texas Valley Coastal Bend Healthcare System in Harlingen, Texas. Several medical technicians were housed in the Laboratory facility at the clinic. The clinic had centralized telephone lines at the facility in the Chemistry, Hematology, and Urinalysis areas. Employees rotate throughout the three sections of the clinic. Complainant claimed that the Chief Medical Technologist (Chief), her second-level supervisor, repeatedly called her in the area she was working to inquire about other employees. Complainant believed that the Chief knew of the chain-of-command, but went out of her way to call her to inquire about other staff to harass her. 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. 0120150722 2 On August 16, 2011, Complainant alleged that she was washing her hands when she noticed a co-worker (CW-1) looking in the window at her. Complainant claimed that she quickly finished washing her hands and attempted to confront CW-1. Complainant stated that she informed CW- 1 that his actions were unwelcome, and she filed a VA police report to report that he was stalking her. Complainant believed that the Chief told CW-1 to stalk her to obtain information for the Chief. Management initiated an investigation into the incident. Complainant requested a reassignment for her safety following the incident, and she was initially reassigned to the Logistics department. This reassignment was brought to the attention of Human Resources (HR) officials who determined that this personnel action violated Agency reassignment rules and regulations. Complainant was returned to the Laboratory, but on a different floor than CW-1. Management officials concluded the investigation into Complainant’s allegations against CW-1 and determined that Complainant’s claims were unsubstantiated. In August 2011, the Laboratory area proposed new and extended hours to service patients. Management officials consulted with the Union on the proposed changes to Laboratory employees’ tours of duty. The Chief sought input from employees on the proposed extended hours and employees’ preferences on tours of duty. The Chief sent several emails to all Laboratory employees. After receiving minimal responses, the Chief continued to send emails to all Laboratory employees requesting input. Management and the Union ultimately decided that no employee would be given a particular tour of duty and that all employees would rotate tours of duty. Complainant raised the matter with her supervisor (S1). Complainant claimed that S1 advised her that the Chief and Human Resources said she was not allowed to speak to the EEO Program Manager about the issue. Nonetheless, Complainant discussed the matter with the EEO Program Manager. On September 16, 2011, Complainant alleged that a negative report of contact regarding patient care was filed against her. Complainant believed that the report came from the Phlebotomy department; however, she claimed that the Chief wrote it up and signed it. Complainant alleged that the report falsely stated that she compromised patient care. On October 31, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, the Chief Medical Technologist repeatedly called Complainant on her direct line and not the Laboratory information line to inquire about other employees; Complainant reported she was being stalked by a co-worker at the behest of the Chief; Complainant’s request for reassignment based upon her safety was denied; the Chief sent Complainant multiple messages regarding tour of duty changes; Complainant was notified by the Chief that her selected new tour of duty was subsequently canceled and not available; Complainant was informed by her supervisor that the Chief and Human Resources stated that she could not speak with the EEO Program Manager at the facility regarding her tour of duty; and, Complainant became aware that the Chief wrote a negative report of contact on Complainant. 0120150722 3 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). Complainant timely requested a hearing. The AJ assigned to the case granted summary judgment in favor of the Agency, and issued a decision on September 23, 2014. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the alleged conduct was based on retaliatory animus. In particular, the AJ found that there was no evidence that the Chief directed CW-1 to “stalk” her. Regardless, Complainant did not dispute that the Agency acted promptly in response to her complaint about CW-1 by conducting an investigation and a fact-finding conference. The investigative report resulted in a finding that Complainant’s claims against CW-1 were unsubstantiated. With respect to her reassignment request, Complainant was initially moved to an area outside her department. Nevertheless, Complainant’s reassignment violated the Agency’s personnel policy which prohibits an employee from working outside the employee’s department. As a result, Complainant was subsequently moved to the second floor, which was part of her position’s department but on a different floor from CW-1. Following the investigative report’s determination that her claims were unsubstantiated, Complainant was returned to her original work station. As to her claims related to the tour of duty changes, the AJ found that the record evidence revealed that all employees, not just Complainant, received multiple email messages about the matter. Further, no employee received a specific tour of duty as it was determined by the Union and management that all employees would be rotated. Regarding her claim that she was told she could not speak to the EEO Program Manager, the Chief stated that Complainant was advised that the issue regarding her tour of duty was simply a Human Resources matter. Nonetheless, the AJ noted that it was clear that even if the Chief informed her that this was not an EEO matter, Complainant was not deterred from contacting an EEO official and was not deterred from engaging in the EEO process. Finally, with respect to the negative report, Complainant did not dispute that she failed to process a blood sample received in the Laboratory that was on her work list. Samples must be processed within a certain window of time as part of the accrediting process for the Agency Laboratory. When they are not processed, the samples appear on an occurrence report that is sent to the Chief Medical Technician for the Laboratory. The occurrence reports must be addressed by the Chief and investigated, and the Chief was compelled to document the incident in a report of contact in accordance with procedures for maintaining the Laboratory’s accreditation. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to reprisal or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. 0120150722 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency and ignored the facts and evidence as cited in her opposition brief. Complainant claims that the AJ jumped to an unwarranted conclusion based on limited evidence and failed to consider the totality of the circumstances. Complainant argues that the evidence shows that she was subjected to conduct that was severe and pervasive. Complainant claims that the Chief singled her out and treated her differently because of her prior protected EEO activity. Complainant believes that the Chief instructed CW-1 to stalk her. Complainant disputes the Chief’s statement that she did not tell Complainant that she could not speak to the EEO Program Manager. Finally, Complainant claims the Chief repeatedly overstepped her authority and improperly interfered with administrative matters pertaining to Complainant. Accordingly, Complainant requests that the Commission reverse the final order. 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. The Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 0120150722 5 The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on retaliatory animus. For example, regarding the repeated direct calls, the Chief explained that she does not receive the schedule showing where employees are scheduled and the Laboratory had telephone lines assigned per section. ROI, at 150. The Chief stated that if she needed to reach someone, she would call the numbers she remembered until she reached someone. Id. The Chief stressed that she would not know where Complainant was before calling and she did not call to pick on Complainant. Id. As to her claims that the Chief sent CW-1 to stalk her and her subsequent reassignment, the Chief denied ever requesting CW-1 to stalk Complainant. ROI, at 151. The record reveals that once Complainant reported CW-1’s alleged conduct, management initiated an investigation. Id. at 168. The HR Specialist stated that Complainant requested to be reassigned to a different position within the facility; however, Agency personnel rules and regulations prohibited her from being reassigned into that position. Id. at 169. Consequently, Complainant was moved to a different floor within the same service to separate her from CW-1 while the matter was being investigated. Id. There is no evidence that CW-1 had any contact with her following the move. The investigation determined that Complainant’s claims were unsubstantiated and she was moved back to her original area. Id. at 142, 186-88. With respect to the tour of duty changes claims, S1 stated that management decided to extend the clinic’s hours and management needed to arrange new shifts. ROI, at 142. The Chief explained that she sent multiple emails to all staff requesting input because she did not receive any replies. Id. at 152. The Chief affirmed that she only sent multiple emails to all employees because she wanted to know if anyone had any situations or issues that they wanted her to know about prior to the meeting with HR and the Union. Id. Ultimately, management decided to rotate all employees’ tours of duty to accommodate the extended hours. Id. at 124, 143. As to Complainant’s claim that she was told to not go to the EEO Program Manager regarding her tour of duty, the Chief denied telling Complainant or anyone that she could not speak to the EEO Program Manager about her tour of duty. ROI, at 153. Nonetheless, S1 stated that she was informed by upper management that the tour of duty issue was an administrative matter handled by Human Resources. Id. at 144. S1 further explained that she believed that management did not want the EEO Program Manager involved in the decision-making process as an advisor, not that management wanted to deter anyone from participating in the EEO process. Id. at 144-45. S1 specifically stated that she stressed to Complainant during their conversation about the changes that she could go to the EEO Office whenever she wanted and that she would not stop her. Id. at 145.2 2 The Commission has held that certain actions may constitute per se reprisal. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Here, the Commission notes 0120150722 6 Finally, with respect to the negative report of contact, S1 confirmed that Complainant failed to process a sample that was on her work list. ROI, at 145. S1 stated that she issued the Report of Contact from the Chief and told Complainant to find and process the unprocessed sample. Id. Complainant did not dispute that she failed to process a sample. Agency management contended that the Chief was compelled to document the incident in accordance with the procedures for maintaining the Laboratory’s accreditation. The Commission agrees with the AJ that Complainant has not shown that she was subjected to a retaliatory hostile work environment. The record is clear that Complainant had a contentious relationship with the Chief; however, 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). The record simply does not show that the conduct at issue was based on animus towards Complainant’s prior protected EEO activity. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext for reprisal. As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to reprisal or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL initially that Complainant does not allege that the Chief directly made the comment at issue to her. Further, as discussed above, it is undisputed that S1 informed Complainant that she had the right to go to the EEO Office or to pursue an EEO complaint regarding the tour of duty changes and that she would not do anything to stop her. Complainant herself acknowledged that she was not discouraged from engaging in the EEO process based on the alleged comments of the Chief. See Sofia W. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151077 (May 26, 2017) (no per se reprisal where complainant had not shown that she was dissuaded from processing her complaint as result of comments EEO Specialist allegedly made). As a result, based on the specific circumstances present, the Commission finds that this matter does not rise to the level of per se reprisal. The Commission takes this opportunity, however, to remind the Agency that statements that on their face have a potentially chilling effect on participation in the EEO process could constitute reprisal. 0120150722 7 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. 0120150722 8 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 January 31, 2018 Date Copy with citationCopy as parenthetical citation