Chastity L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120171189 (E.E.O.C. Nov. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chastity L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120171189 Hearing No. 443-2015-00083X Agency No. 200J-0537-2014104610 DECISION On February 10, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the Agency’s final action2 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 action. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly granted the Agency’s motion for summary judgment; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to a hostile work environment based on race and/or reprisal. 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 Although Complainant’s appeal was prematurely filed, it is now ripe for adjudication. 0120171189 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-2, at the Agency’s Jesse Brown VA Medical Center in Chicago, Illinois. Complainant is Caucasian. Prior to the time of events giving rise to this complaint. Complainant filed an EEO complaint alleging race discrimination on April 8, 2014, which she settled with the Agency following mediation. Complainant’s first-line supervisor was the Nurse Manager for Outpatient Specialty Clinics (S1, African-American). Complainant averred that on August 21, 2014, another Registered Nurse (C1, African-American) failed to give an injection to a patient who had driven 60 miles for his appointment. Complainant reported C1’s inaction to S1. On August 22, 2014, S1 held a meeting with the nursing staff to discuss the incident. Complainant alleged that during the meeting C1 repeatedly called her a liar and a bigot and that S1 failed to address the situation. According to S1, during the meeting, Complainant and C1 got into an argument in which C1 called Complainant a liar, and Complainant responded by telling C1, “You need to take your Xanax.” A coworker (C2) confirmed that she heard C1 call Complainant a liar and that she heard Complainant tell C1 that she needed to take Xanax. C2 stated that she did not hear C1 call Complainant a bigot. Another coworker (C3) stated that she heard C1 call Complainant a “known liar” and that she left the room after hearing C1 call Complainant a liar. S1 averred that Complainant left the room after making the statement about C1 needing Xanax and refused to return. S1 stated that after the meeting she met with C1 and discussed the need to treat others with respect by avoiding profane, obscene, or threatening language. On September 30, 2014, Complainant emailed S1 requesting a job description for her position. According to S1, she went to Complainant’s work area, stood in the doorway, and told Complainant that there was no specific job description for her position. S1 stated that she was standing in the doorway because Complainant had previously requested that S1 remain 15 feet or more away from her. Complainant stated that she does not do well in small, enclosed spaces. Complainant alleged that she felt blocked in by S1 and threatened by her body language. Complainant hit the panic button at her desk to call the VA police. The record contains a September 30, 2014, VA Police Report, which states that Complainant told the responding officer that “she pushed the panic alarm because she doesn’t have a job description.” Report of Investigation (ROI) at 32. The officer stated that he told Complainant to address the matter with management and/or human resources because not having a job description was not a police matter. On October 9, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII when: 1. On August 22, 2014, C1 called her a bigot and a liar multiple times in front of staff, and S1 failed to address the incident; and 2. On September 30, 2014, S1 blocked Complainant in an office and yelled at her in a threatening manner, prompting Complainant to file a police report. 0120171189 3 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 AJ. Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 26, 2015, motion for a decision without a hearing and issued a decision without a hearing on January 11, 2017. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant contends that S1 was not truthful because she did not argue with C1. Complainant notes that she was not counseled by S1 for her behavior in the August 22, 2014, meeting. Complainant argues that C1 should have been interviewed as part of the EEO investigation. Complainant contends that she established that she was subjected to a hostile work environment. In response to Complainant’s appeal, the Agency contends that Complainant failed to establish that she was subjected to a hostile work environment and requests that its final action be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment We must determine whether it was appropriate for the AJ to have issued a summary judgment decision on this record. The Commission’s regulations allow an AJ to issue a summary judgment decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R. 0120171189 4 § 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 summary judgment decision is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a summary judgment decision only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for summary judgment. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for summary judgment). Here, we agree with Complainant that the Agency should have interviewed C1, one of the alleged harassers, during its investigation of Complainant’s EEO complaint. However, despite this omission, we find that the record is sufficiently developed for summary disposition. Moreover, no genuine issue of material fact exists. Therefore, the AJ properly granted the Agency’s motion for summary judgment. 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, 0120171189 5 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). Because the EEO Investigator failed to interview C1, we will assume, for the sake of argument, that C1 would have testified that she did call Complainant a liar and a bigot as alleged by Complainant. However, even assuming that C1 did call Complainant a liar and a bigot as alleged, we find that this incident, even considered together with the incident when Complainant pushed the panic button to call the police because S1 would not give her a job description for her position, is insufficiently severe or pervasive to constitute a hostile work environment. Further, there is no evident connection between the alleged harassment and Complainant’s race or prior protected activity. Accordingly, Complainant failed to establish by the preponderance of the evidence that she was subjected to a hostile work environment based on race or prior protected EEO activity. 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 action because the AJ properly issued a summary judgment decision and because the preponderance of the evidence in the record does not establish that discrimination occurred. 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. 0120171189 6 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. 0120171189 7 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 8, 2018 Date Copy with citationCopy as parenthetical citation