Debbi V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120182176 (E.E.O.C. Nov. 7, 2018)

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

Debbi V.,1
Complainant,

v.

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

Appeal No. 0120182176
Hearing No. 560-2015-00076X
Agency No. 200305892014102402

DECISION

On June 13, 2018, 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
May 17, 2018, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly
issued a decision without a hearing finding that Complainant failed to establish she was subjected
to discriminatory harassment on the bases of race (Black), age (age 48), sex (female) and reprisal
(prior EEO activity) when: (1) in 2011, her request to attend monthly Decontamination Team
Meetings was denied; (2) in 2011 and 2012, her request to attend Sexual Assault Nurse Training
was denied; (3) in August 2012, her request to attend Medical/Surgical Training was denied; (4)
on April 1, 2014, management failed to respond to her regarding the status of her application for
promotion to Nurse 2; (5) on April 14, 2014, a co-worker, told Complainant “[Complainant] I need
you to be my slave today;” and (6) on April 14, 2014, this same co-worker told a Clinic Manager,
“[she was] using [Complainant] as [her] slave today, and she is helping triage your patients.”

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at
the Agency’s Kansas City VA Medical Center facility in Kansas City, Missouri. On June 4, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against her as
articulated in the statement of Issues Presented above. The AJ’s decision clearly articulated the
facts of record, and the instant decision incorporates them by reference. 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. Complainant timely requested a hearing. The Agency’s filed a motion for
a decision without a hearing on February 27, 2018, and Complainant filed a response on March
23, 2018. The AJ granted the Agency’s motion for a decision without a hearing and issued a
decision without a hearing on May 7, 2018. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant, through her representative, requested that the Commission reverse the
Agency’s final order adopting the AJ’s decision finding that she failed to establish she was
subjected to discrimination as alleged. Complainant contends that there were material facts in
dispute in her case which warranted a hearing. Complainant further contends that none of her
allegations are in dispute, but the Agency fails to offer any evidence to rebut them.

The Agency concurs with all the AJ’s findings and requests that we affirm the final order
implementing the AJ’s decision without a hearing.

STANDARD OF REVIEW

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.

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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”).

ANALYSIS AND FINDINGS

We must first 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. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing 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 decision without a hearing, (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 a decision
without a hearing. 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 a decision without a
hearing).

After a review of the record, we find that there are no genuine issues of material fact or any
credibility issues which required a hearing and therefore the AJ’s issuance of a decision without a
hearing was appropriate.
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The record has been adequately developed, Complainant was given notice of the Agency’s motion
to issue a decision without a hearing, she was given a comprehensive statement of undisputed
facts, she was given an opportunity to respond to the motion and statement of undisputed facts,
and she had the opportunity to engage in discovery. Under these circumstances, we find that the
AJ’s decision without a hearing was appropriate.

Harassment

Complainant alleges that she was subjected to harassment and a hostile work environment by her
first level supervisor (S1) and another co-worker who was not in her chain of command.
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, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In assessing whether 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, EEOC
Request No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
‘terms and conditions of employment.” Kozak v. United States Postal Service, EEOC Request No.
01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No.
0120083387 (Feb. 4, 2010). 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.

With regard to Complainant’s first four incidents, we find that Complainant fails to establish
element 2 of the harassment analysis. We concur with the AJ’s finding that the actions complained
of appear to be nothing more than actions taken within the exercise of managerial authority to
ensure the efficient and orderly operation of the workplace. With respect to Complainant’s specific
contention that she should have been allowed to attend the trainings as requested, we find that the
Agency provided reasons for denying her attendance at the trainings. Complainant provided no
evidence raising a genuine issue that the true reasons were based on any of Complainant’s
protected categories. Similarly regarding the delay in the response to her inquiries regarding a
promotion, we again find no evidence indicating that the delay was in any way linked to any
protected bases asserted by Complainant.
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With respect to Complainant’s final two incidents, we find that the co-worker twice using the term
“slave” in reference to needing Complainant to work in atypical areas does not rise to the level of
actionable harassment. While the use of the word may have been offensive, we agree with the AJ
that it was not severe or pervasive conduct such as to create an unlawful work environment on any
basis. Additionally, the record reflects that the co-worker who made the comments was not in
Complainant’s direct supervisory chain, and was counseled about the comments she made to
Complainant, and that she subsequently issued Complainant an apology. Thus, we find no basis
for imputing liability to the Agency. In sum, we agree with the AJ’s findings that the incidents,
considered together and taken as a whole, do not rise to the level of a discriminatorily hostile
workplace.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the AJ properly issued a decision without a hearing
finding that Complainant failed to establish that she was subjected to discriminatory harassment
as alleged. We AFFIRM the Agency’s 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.
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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

November 7, 2018
Date