Beryl B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 30, 2019

2019002119 (E.E.O.C. Aug. 30, 2019)

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

Beryl B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019002119

Hearing No. 430-2017-00273X

Agency No. 200I05442016105169

DECISION

On February 27, 2019, 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
February 5, 2019, 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 worked as a Health Technician,
GS-06, at the Agency’s Medical Center facility in Columbia, South Carolina.

On October 20, 2016, Complainant filed an EEO complaint alleging that the Agency unlawfully
retaliated against her for prior protected EEO activity when, from August 1, 2016, and ongoing,
Complainant has been subjected to harassment.

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.

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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The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and issued a decision by summary judgment in favor of the Agency on January 30, 2019.
Specifically, the AJ found that the majority of the incidents of alleged harassment occurred prior
to Complainant’s EEO activity and that all of the actions complained of were insufficiently
severe to constitute harassment sufficient to violate Title VII.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to retaliation as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

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. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.

Complainant alleges the following acts of harassment occurred: On August 1, 2016, the Nurse
Manager (NM) moved Complainant's personal items and when Complainant asked why, NM
yelled at her and accused Complainant of hitting her; on August 8, 2016, Complainant received a
Written Counseling letter; on August 11, 2016, Police and Security notified Complainant that she
was being investigated for an assault charge filed by NM; on August 19, 2016, NM snatched an
otoscope from the nurse who was examining Complainant's ear and told Complainant to see a
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doctor; on August 19, 2016, when Complainant was eating pizza (provided to staff), NM told
Complainant she was keeping track of her lunches; and on October 4, 2016, a Telehealth
Coordinator (TC) instructed Complainant not to sit in NM's office even though another co-
worker was allowed to use NM's office.

The record does not show, and Complainant does not allege, that she engaged in any EEO
activity prior to September 2016. During the investigation, Complainant was asked the following
question: “The record indicates you do not have a previous EEO complaint filed with ORM.
Therefore, please explain the EEO activity you engaged that was the subject of retaliation.”
Complainant responded, “September 2016, I met with [the EEO Manager] regarding Hostile
working environment and discrimination for EEO protection. The unfair treatment was in the
same working environment by the same management officials. (Email can be provided for
proof).” The supporting emails provided by Complainant show that the first email Complainant
sent to the EEO Manager expressing an interest in filing an EEO complaint was dated September
8, 2016. The AJ noted that since Complainant’s earliest protected activity was not until
September 2016, the incidents occurring prior to this date could not be used to support a prima
facie case of reprisal or retaliatory harassment. We agree, since Complainant could not have been
retaliated against for EEO activity that had not yet occurred.

The sole remaining incident occurring after her EEO contact was on October 4, 2016, when
Complainant was told not to sit in NM’s office. In considering whether this single incident
constitutes harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S.
17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results
in an alteration of the conditions of the complainant’s employment. See EEOC Notice No.
915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.

Furthermore, in assessing whether the complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by
the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such
conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did
perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Following a review of the record we find that Complainant has not shown that the single incident
alleged above either involved or was based on her protected EEO activity. Nor is it sufficiently
severe so as to alter the conditions of Complainant’s employment.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final order.

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.
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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

August 30, 2019
Date