Birdie C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120181862 (E.E.O.C. Oct. 18, 2018)

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

Birdie C.,1
Complainant,

v.

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

Appeal No. 0120181862
Hearing No. 450-2015-00156X
Agency No. 2003-0549-2015103872

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April 11,
2018, final order concerning an 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 which fully implemented, the Equal Employment Opportunity Commission’s Administrative
Judge’s (AJ) decision, which found that Complainant did not prove discrimination by the Agency
in this case.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Human Resources Specialist at an Agency facility in Dallas, Texas. On August 3, 2015,
Complainant filed an EEO complaint alleging discriminatory harassment by the Agency on the
bases of race (African-American) and sex (female) when:

1. On April 30, 2015, the Supervisory HR Specialist (M1) and the Medical Center
Director (M2), failed to act when Complainant reported that the President, AFGE
Local 2437 (PL1)(Black male), referred to her as “Aunt Jemima.”
2. On May 18, 2015, M1 and M2, failed to act when Complainant reported that PL1
stopped by her office and told her she was on the “shit list.”
3. On May 21, 2015, M1 and M2 failed to act when Complainant reported that PL1
and the Vice President, AFGE Local 2437 (PL2) (Black male), called her “Aunt

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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Jemima” and “house N-word”; stated they were going to make her name famous;
and would “turn up the heat” on her.

During the time of these incidents, there were tensions between the Human Resources (HR) office
and the union because they were negotiating the issue of using official time. Complainant was the
HR Specialist in charge of the official time issue. The union officials, PL1 and PL2, disagreed
with Complainant’s position with regard to the official time issue; consequently, in the midst of
the negotiation, PL1 and PL2 became angry with Complainant and made the comments attributed
to them.

On May 21, 2015, PL2 who was Complainant’s coworker, admitted to her that he had called her
“Aunt Jemima.” Soon thereafter, the Acting Associate Director, (M3) learned of the incident and
initiated a fact-finding investigation, as the Director (M2), was out of town. Following the
investigation, M3 advised M2, that he was going to propose suspension. Upon M2’s return to the
office, he apologized to Complainant for the actions of PL1 and PL2. He also asked Complainant
what she wanted to be done. M2 offered to take away the official tracking time from Complainant
so that she would not have to interact with the union officials, but she indicated that it was not
necessary. M2 indicated that he immediately went to HR and the Office of General Counsel,
requesting that action be taken.

M2 indicated that shortly after he arrived at the Agency, it was brought to his attention, that either
in March or April 2015, that PL1 and PL2 had spoken to two HR supervisors in a similar manner.
M2 indicated that the two individuals however, refused to put the allegation in writing or were
unwilling to testify.

The record also indicates that C1, a white female employee who was also a coworker of
Complainant’s, reported that PL1 and PL2 had used derogatory comments towards her calling her
a “plantation owner.” She also heard the remarks they made to Complainant. She asked
Complainant if she wanted her to call the police or what to do. Complainant told her not to worry,
and that she would not let them intimidate her.

On June 24, 2015, M4, who was then Secretary of the Agency, instructed the Chief of Staff of the
Agency (A5), to investigate the incidents. A5 shared with M4 that PL1 and PL2 admitted that they
had made the statements, indicated that they had been making those type of statements for years,
and indicated that they were not going to stop.

As a result of the investigation, on June 15, 2015, a 5-day suspension was proposed for PL1. The
suspension was rescinded however, after it was discovered that despite the proposed suspension,
he continued to make derogatory comments to other employees. Therefore, on June 26, 2015, a
proposed removal was issued. PL1’s removal notice was signed on September 10, 2015, with an
effective date of September 23, 2015. The Agency upheld the termination but PL1 grieved the
matter and it went to arbitration. PL1’s termination was reduced to a suspension. Likewise, on
June 15, 2015, a three-day suspension was proposed for PL2. When he continued the offensive
behavior, the three-day suspension was increased to a 14-day suspension.
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After, these actions were taken, Complainant testified that they never bothered her again.
Complainant however, argued that PL1 and PL2 should have been removed from the facility, that
she was afraid of them, that she was afraid of going home because she did not know what they
were capable of doing. The Agency maintained however, that these two individuals had no more
negative contact with Complainant or any other employee with regard to calling anyone else
names. Complainant, subsequently, left the Agency.

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. Upon completion of Complainant’s case-
in-chief and the testimony of one Agency witness, the AJ found that although the Agency did not
request a directed verdict, he, sua sponte, thought that it was appropriate to grant one and therefore
issued a bench decision in favor of the Agency.

The AJ found that Complainant did not establish a prima facie case of discrimination on the bases
of race or sex. Specifically, the AJ found that while Complainant may have shown that she was a
member of protected groups by virtue of her sex and race, the three incidents she complained about
were not severe or pervasive. Assuming, arguendo, that they were severe or pervasive, the AJ
found that the incidents occurred during the heat of union negotiations where they disagreed with
Complainant, although he found that this did not entitle them to call her such vile names. The AJ
also noted that PL1 and PL2 had made vile comments to a white female as well.

The AJ found that the Agency took appropriate and immediate remedial actions to deal with the
matter. The Agency’s actions included an apology to Complainant from M2, a prompt
investigation of the matter, the contacting of HR and OGC, inquiries by then Secretary of the
Agency, and the taking of direct action against the offending parties to punish them for their
behavior. Therefore, the AJ found that, based on the totality of the evidence, Complainant did not
establish her claim of unlawful harassment because she did not establish liability on the part of the
Agency.

The Agency issued its final order adopting the AJ’s finding that Complainant did not prove
discriminatory harassment as she alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends among other things, that she suffered harm as a result of the
union officials’ behavior and the Agency should be liable for her damages. Complainant maintains
that her professional reputation was damaged and she was embarrassed in front of her peers. She
argues that discrimination by PL1 and PL2 existed before it happened to her and management did
nothing about it. Complainant also argues that she was met with obstructive behavior when she
attempted to file an EEO complaint when she was advised to contact the American Federation of
Government Employees (AFGE).
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In addition to filing her complaint, Complainant contacted the local and national offices of the
AFGE, but did not get resolution. She also contacted the Federal Labor Relations Authority
(FLRA), and the Office of Special Counsel to report the matter.

Further, Complainant maintains that the Agency should have made an executive decision about
the union officials’ behavior instead of asking her what she wanted them to do. Finally,
Complainant asserts that the AJ erred when he prevented her from having a fair and complete
hearing by issuing a directed verdict.

In response, the Agency, contends among other things, that it responded to Complainant’s
allegations and took immediate, effective and appropriate action.

STANDARD OF REVIEW

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).

ANALYSIS AND FINDINGS

At the outset, we do not find that the AJ erred by directing a verdict in favor of the Agency. The
Commission has repeatedly held that AJ’s have broad discretion in the conduct of hearings,
including discovery, and the determination of whether to admit evidence, or permit or compel the
testimony of witnesses. See 29 C.F.R. § 109. Upon review of the record, the Commission finds no
evidence that the AJ abused his discretion here.

Harassment

Harassment of an employee that would not occur but for the employee’s race, color, sex, or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv.,
EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar.
8, 1994). In determining that a working environment is hostile, factors to consider are the
frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening
or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6.
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The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable person would find hostile
or abusive - is beyond Title VII’s purview.” Harris, 510 U.S. at 22 (1993).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that 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).

With respect to element (5), an employer is subject to vicarious liability for harassment when it is
created by a supervisor with immediate (or successively higher) authority over the employee. See
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment
does not result in a tangible employment action the agency can raise an affirmative defense, which
is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised
reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in
a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being
taken against the employee.

By way of contrast, in the case of co-worker harassment, which is the situation we face in the
instant matter, an agency is responsible for acts of harassment in the workplace where the agency
(or its agents) knew or should have known of the conduct, unless it can show that it took immediate
and appropriate corrective action. Id. Upon review, we find that the record supports the AJ’s
finding of no discrimination by the Agency. With regard to Complainant’s claim of hostile work
environment, we make the following determinations:

I. Elements 1, 2 and 3 -- Unwelcome Conduct based on Race and Sex

Regarding element 1, the record is undisputed that Complainant, a Black, female is a member of
these statutorily protected classes. Regarding elements 2 and 3, we find the record indicates that
on April 30, 2015, PL1 referred to Complainant as “Aunt Jemima,” on May 18, 2015, PL1 told
Complainant that she was on the “shit list,” and on May 21, 2015, PL1 and PL2 called her “Aunt
Jemima,” and “house N-word,” stated they were going to make her name famous; and would turn
up “the heat” on her. We find it reasonable to conclude that but for Complainant being a black
woman, PL1 and PL2 would not have made these comments.

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Assuming, arguendo, that Complainant established element 4, we find that her overall harassment
claim must fail because she did not establish element 5, i.e., there is no basis for imputing liability
to the Agency. In the instant case, the record shows that as soon as M3 learned of the incident an
investigation was started, M2 later apologized to Complainant, she was given of the option of not
working on the official time issue by Union officials, which would have drastically curtailed her
contact with her co-workers, PL1 and PL2, the matter was elevated to the Secretary of the Agency,
and PL1 and PL2 were subsequently suspended. The record is undisputed that after the Agency’s
prompt and effective actions PL1 and PL2 no longer engaged in the behavior at issue. With regard
to the matters raised by Complainant on appeal, we note that, absent a finding of discrimination,
the Agency is not liable for her damages. Likewise, we find that the Agency met its obligations
to Complainant when it took prompt, effective remedial action to investigate and resolve the matter
facing her.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision
because Complainant did not establish element 5 of her harassment claim.

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.
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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

October 18, 2018__
Date