0120162457
03-29-2018
Anya V.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anya V.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120162457
Hearing No. 532201500002XX
Agency No. 200H07852014100240
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") pursuant to 29 C.F.R. � 1614.403, from the Agency's July 18, 2016 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Food Service Worker-Leader or Head Cashier, Veteran Canteen Services ("VCS") at the Lois Stokes VA Medical Center in Cleveland, Ohio.
On December 20, 2013, Complainant filed an EEO complaint alleging that she was subjected to a hostile work environment and discrimination by the Agency on the bases of race (African-American) when:
1. On October 16, 2013, she was physically attacked when she was choked by a coworker ("C1");
2. On October 23, 2013, she was issued a proposed removal; and
3. Effective November 25, 2013, the Complainant was removed from employment for conduct unbecoming a Veterans Canteen Service employee.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing. The AJ held hearings on February 9, and April 19, 2016, and on July 7, 2016, she issued a decision in favor of the Agency.
In reaching her decision, the AJ determined the following undisputed facts:
Complainant began working at the Agency as a Food Service Worker in 1992, and was promoted to Food Service Worker-Leader in or around 2001. During the relevant time frame, she reported to the Assistant Chief (African-American) as her first level supervisor ("S1"), and the Canteen Chief (Caucasian) as her second level supervisor ("S2"). Both supervisors and Management found Complainant to be a good employee, as she consistently received above average evaluations and cash performance awards. S1 and S2 were also aware that Complainant had an ongoing conflict with one of the kitchen employees, C1 (African-American), since 2006.
In 2006, C1 was hired to work in the kitchen, and she and Complainant initially had a "fine" relationship. A cook ("C2") (African-American) was also hired, and shortly afterward, Complainant went on medical leave for three months due to pregnancy complications that ultimately resulted in a miscarriage. When Complainant returned to work, she noticed that C1 and C2 had gotten "really close." Yet, C2 kept approaching Complainant and giving her compliments, such as "you smell good." C1 began verbally harassing Complainant, in one instance referencing her failed pregnancy by calling her a "tubal ligation baby having bitch." Complainant told her sister, who came to the facility and confronted C1. Complainant tried to avoid both C2 and C1. Regardless, C1 continued calling Complainant out of her name, referring to her as a "bitch" and "'ho" instead. According to Complainant, C1 was harassing her out of jealousy over of the attention Complainant received from men, particularly C2.
In 2007, Complainant wrote C1 up for calling her a "black bitch" and ignored C1 as she knocked on the back door to the kitchen, to be let in because C1 had been "nasty" to her earlier. S2 issued a reprimand to Complainant for refusing to open the door for C1. Complainant explained to S1 and S2 that C1 kept harassing her. At Complainant's request, she and S2 engaged in mediation, as Complainant was concerned by S2's lack of response to her harassment allegations. Afterward, S2 and Management separated Complainant and C1 by transferring C1 to work at another facility. When C1 returned after an unspecified period, Complainant states that it was "quieter" but ultimately, C1 resumed the alleged harassment.
In 2011, C1 told a coworker that she hated Complainant's "motherfucking guts." Complainant already told S2 multiple times that she was afraid of C1 and that C1 did not like her, and asked him to keep her "out of harm's way." As S2 had not acted, Complainant reported C1's comment to a Union official, but learned that the Union could not assist her because C1 did not address Complainant directly when making the statement. Complainant provided S1 with a written account of the incident for the record, hoping that it would be sufficient evidence for S2 to remove C1 as he did before. According to the record, S2 could not separate Complainant and C1 because the facility where C1 was reassigned before had closed, so the Commissary was the only available workspace.
Complainant did not raise any additional complaints about C1 until the October 16, 2013 physical altercation. However, Complainant alleges an ongoing hostile work environment. She witnessed C1 "bully" other employees, and stated that C1 was either "mean" or did not talk to other employees except for a "small clique." On an unspecified date, Complainant witnessed a member of C1's clique ("C3") (African-American) verbally attack and get in the personal space of an employee Complainant supervised ("C4") (Caucasian). Complainant took C4 to the Director's office to report the incident, and C3 was issued a five-day suspension.
On October 16, 2013, Complainant and C1 were both in the store room and a verbal and physical altercation ensued. A cook (race not specified) ("C5") came in and broke C1 and Complainant up when he heard them both yelling at each other. C5 could not tell from the yelling who instigated the altercation, and when he arrived, he witnessed C1 with her hands around Complainant's neck "choking [her] out," and Complainant scratching C1's face. Complainant recalls that she took a swing at C1 while C5 pulled C1 off her, but contends that the scratches were self defense. Complainant was so shaken up that she had wet herself. She called her family and went to the police. No witnesses saw the fight start, and the statements C1 and Complainant provided to the police both identify the other as the aggressor.
Complainant and C1 were placed on administrative leave, as S2 investigated the incident. After consulting with Human Resources, S2 determined that both Complainant and C1 violated the Agency's Zero Tolerance policy for violence in the workplace, and on October 22, 2013, issued them each a notice of proposed removal. The VCS Regional Manager (race not specified) agreed with S2's assessment after reviewing S2's investigative file and the police report, and issued letters to Complainant and C1 on November 20, 2013 terminating their employment effective November 25, 2013.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Claim 1
It is well-settled that harassment based on an individual's race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment the complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her membership in this class; (3) the harassment complained of was based on her race; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Complainant's membership in a protected class is undisputed, and the physical attack described in Claim 1, would satisfy elements 4 and 5 of the analysis. However, Complainant is unable to establish the requirements under elements 2 and 3. Despite C1's previous use of the phrase "black bitch" to describe Complainant, we do not find C1's actions of physically attacking and choking Complainant racially motivated. In context C1, Complainant, and most their coworkers were African American. By Complainant's own account, C1 began harassing her out of jealousy over the attention Complainant received from men, particularly C2. Further, C1 was a known "bully" and "mean" to other employees, and Complainant neither alleges nor offers evidence that C1 was harassing individuals based on race. On appeal, Complainant has not offered any evidence to warrant reversing the AJ's finding that C1's actions were not motivated by race.
Claims 2 and 3
For purposes of analysis, Complainant's removal, as a personnel action, is a discrete incident, outside the alleged harassment. We note that when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Thus, our review considers Claims 2 and 3 as a single claim of discrimination.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the Agency's legitimate, nondiscriminatory reason for terminating Complainant's employment was that her actions of engaging in a physical altercation with C1, specifically pushing C1 and scratching her face, violated its Zero Tolerance Policy for violence in the workplace. The AJ found credible witness testimony, which, along with documentation in the record supports that Complainant participated in the physical altercation, which, regardless of who instigated it, violated the Zero Tolerance Policy. Complainant has not offered sufficient evidence to contradict the AJ's finding that the Agency acted based on a legitimate nondiscriminatory reason, not racial discrimination.
Even if Complainant could demonstrate that she did not violate the Zero Tolerance Policy, (e.g. provide sufficient evidence that C1 was the only aggressor, that Complainant was unable to retreat, and the scratch marks on C1's face were due to Complainant's efforts to get away as opposed to participation in the altercation) the AJ determined, and we agree, that Complainant failed to establish a prima facie case for discrimination. Complainant's proffered "similarly situated" comparator, C3, does not meet our well established criteria that all relevant aspects of the comparative employee's work situation must be identical or nearly identical, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same time periods. See Cantu v. Dep't of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) citing Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003), additional citations omitted. Additionally, the Agency's alleged discriminatory action is in response to "problem conduct." We have long held that when a proffered "comparator's conduct was materially distinguishable from that of complainant, he or she is not "similarly situated" to Complainant." See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002); see also Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120132983 (Jun. 10, 2015). Complainant's argument that S2 treated C3, a Caucasian employee, more favorably by suspending her after an altercation with C4, cannot apply to the instant case. Unlike the altercation between Complainant and C1, the altercation between C3 and C4 was not physical, so it did not violate the Zero Tolerance Policy. The record is otherwise devoid of evidence that S2 or Management acted based on Complainant's race when issuing the decision to remove Complainant from employment.
We conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's 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
March 29, 2018
__________________
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.
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0120162457
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