Jayna A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019000156 (E.E.O.C. Dec. 18, 2019)

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

Jayna A.,1
Complainant,

v.

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

Appeal No. 2019000156

Hearing Nos. 550-2014-00047X
550-2015-00266X

Agency Nos. 200P-0612-2013101081
200P-0612-2014104065

DECISION

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 July 20, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Diagnostic Radiology
Technician at the Agency’s McClellan Outpatient Clinic in Sacramento, California. Complainant
stated that in May 2009, and again in July or August 2009, she walked in on a coworker (CW1)
masturbating. Complainant stated that she reported both incidents to her first-line supervisor (S1)
(White, male). For the second incident, Complainant also spoke with the Chief of the Agency’s
Police, who asked that Complainant provide a written statement regarding the incident, and she
declined. Report of Investigation (ROI) 1 at 83-5.

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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In June 2010, Complainant saw CW1 masturbating a third time, and she immediately sent an email
to her managers to report the matter. Complainant stated that S1 asked what she thought they
should do with CW1, and she responded that if S1 could assure her that CW1’s behavior was
corrected, that she would try to avoid him as much as possible because Complainant did not want
to see CW1 lose his retirement. ROI 1 at 85-6.

On July 6, 2010, the Agency issued CW1 a proposed removal for inappropriate behavior of a
sexual nature. The proposed removal was sustained; however, on July 11, 2010, the parties entered
into a Last Chance Agreement, which held CW1’s removal in abeyance for twelve (12) months,
and CW1 was suspended for five (5) days, in lieu of removal. As part of the agreement, CW1
obtained counseling for six (6) months to address his issues regarding his inappropriate behavior
at work. ROI 1 at 133-44.

On December 17, 2012, Complainant observed CW1 viewing pornography on his work computer,
and she immediately attempted to call S1, who did not pick up her call. Complainant then sent an
email to S1, copying other Agency officials, reporting the incident. ROI 1 at 154. Complainant
stated that when she spoke with S1 the following day, he may have asked why Complainant did
not call him on his cell phone. On December 18, 2012, Complainant spoke with the Agency Police,
and CW1 was sent home. On December 19, 2012, Complainant heard CW1 in the office, and
immediately called S1 to notify him that CW1 had returned to work. S1 then called CW1 and
instructed him to leave. CW1 never returned to work and eventually retired. ROI 1 at 87-
90,110,124.

On October 2013, Complainant received a performance rating of “Excellent,” which was lower
than her previous year’s rating of “Outstanding.” Complainant stated that her performance rating
was lowered due to “work ethic,” and that she was accused of not properly keeping records. ROI
2 at 173,176. Complainant stated that on January 31, 2014, she was left alone on duty and had to
provide coverage for three people. ROI 2 at 178.

On May 29, 2014, Complainant stated that a coworker (CW2) asked her to change the sheets, and
Complainant responded that there was no need to change it, and they had a verbal dispute about
the matter. ROI 2 at 180-2. On June 3, 2014, Complainant was notified that a document was added
to her personnel file. Complainant stated that when she checked the document, she saw that her
performance evaluation had been added, with a notation that she had refused to sign. ROI 2 at 183.

Complainant stated that on June 5, 2014, two patients arrived shortly before closing time, and
another coworker (CW3) became irate. Complainant stated that she assisted the patients and stayed
an extra 30 minutes. ROI 2 at 186-7. Complainant stated that on June 9, 2014, she had to work
through her lunch break to correct CW3’s work, while he screamed obscenities. ROI 2 at 188.
Complainant stated that on June 12, 2014, she had to “fend for herself” when dealing with a patient
that CW3 refused to see. ROI 2 at 191. On June 13, 2014, Complainant saw that was CW3
frustrated when attempting to call a patient, so she made the call. ROI 2 at 154-5.

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Complainant stated that on June 27, 2014, she emailed S1 to asking why CW3 was sent to their
location since he had a “history of volatile behavior.” Complainant stated that her complaints about
CW3 were ignored. ROI 2 at 156,193. On July 10, 2014, Complainant stated that CW3 sat in the
back, leaving the reception area unattended, while Complainant provided coverage. ROI 2 at 163.
Complainant stated that on July 11, 2014, she asked CW3 why he covered a picture of an African-
American man on his calendar, and CW3 responded that he “did not like the way the guy looks.”
ROI 2 at 167. Complainant stated that on July 16, 2014, she performed a mammogram on an
attractive patient, and CW3 asked, “how were her breasts?” Complainant responded that CW3’s
question was “not acceptable.” ROI 2 at 168.

Complainant stated that on August 28, 2014, while CW3 was watching a video of an African
American being stopped by a policeman, he made a gun with his hand, and stated, “shoot the
bitch.” ROI 2 at 169. On September 2, 2014, when there was no receptionist at the front desk, a
patient rang the bell, and CW3 stated, “lay off the fucking bell.” ROI 2 at 171. On October 1, 2014,
Complainant heard CW3 state to a coworker, “you’re going to piss me off to no end,” in response
her scheduling patients close to lunchtime. ROI 2 at 172. Complainant stated that on October 8,
2014, she learned about an upcoming harassment training at a different facility, and she asked S1
why she could not attend. ROI 2 at 197. Complainant stated that on December 2, 2014, she asked
CW3 a work-related question, and he responded, “shut the fuck up, stupid bitch.” ROI 2 at 198.

EEO Complaints

On January 28, 2013, Complainant filed an EEO complaint (Agency No. 200P-0612-2013101081)
alleging that the Agency subjected her to sexual harassment the bases of race (African-American)
and sex (female) when:

1. on three occasions in 2009 and 2010, Complainant was subjected to CW1
masturbating, for which he was disciplined and subsequently apologized to
Complainant;

2. on December 17, 2012, Complainant observed CW1 viewing pornography on his
work computer and no one responded to her email objections to the offensive
conduct;

3. on December 18, 2012, S1 stated that he was upset that Complainant sent emails to
multiple individuals and had not called him on his cell phone; and

4. on December 19, 2012, CW1 was in the workplace, after admitting to viewing nude
pictures on his computer, and he had not been removed from the workplace.

On October 13, 2014, Complainant filed another formal EEO complaint (Agency No. 200P-0612-
2014104065) alleging that she was subjected to a hostile work environment based on race and
color (brown), and in reprisal for prior EEO activity when:

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1. on October 31, 2013, Complainant received a lowered performance rating, citing “work
ethic” as the reason for the lowered rating;

2. on January 23, 2014, Complainant was accused of not keeping records correctly;

3. on January 31, 2014, Complainant was again left alone on duty;

4. on May 29, 2014, Complainant had a verbal disagreement with CW2, regarding
environmental protocol;

5. on June 3, 2014, Complainant was accused of refusing to sign her performance evaluation;

6. on June 5, 2014, Complainant had to work overtime when CW3 stated, “this is bullshit, we
are closed”;

7. on or about June 9, 2014, Complainant had to work through lunch to correct CW3’s work
and was subject to his screaming obscenities;

8. on June 9, 2014, Complainant was forced to take sick leave, instead of being allowed to
use continuation of pay;

9. on June 11, 2014, schedulers made appointments carelessly, causing Complainant’s
workload to double, and resulted in Complainant working through lunch, and CW3 become
irate and screamed obscenities at Complainant; 2

10. on June 12, 2014, Complainant was “left to fend for herself” with a patient, when she had
to cover for CW3, who refused to see a patient until after he finished his puzzle;

11. on June 13, 2014, Complainant had to call a patient for an exam because CW3 was
frustrated;

12. on June 27, 2014, Complainant’s complaints to management about CW3 were ignored;

13. on July 10, 2014, CW3 decided not to help in managing the reception area, causing
Complainant to provide coverage by herself;

14. on July 11, 2014, CW3 covered an image of an African American man on his calendar, and
stated that he did not like the way the man looked;

15. on July 16, 2014, after performing a mammogram on a female patient, CW3 asked
Complainant how the patient’s breasts were;

2 Complainant later withdrew claims 8 and 9. ROI 2 at 141,143.
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16. on August 28, 2014, while watching a video of an African American being stopped by a
policeman, CW3 made a gun figure with his hand, and stated “shoot the bitch”;

17. on September 2, 2014, when there was no receptionist at the front desk, the reception bell
irritated CW3, who commented, “lay off from that fucking bell”;

18. on October 1, 2014, CW3 commented, “you’re going to piss me off to no end”;

19. on October 8, 2014, management denied Complainant the opportunity to attend a
Workplace Harassment meeting; and

20. on December 2, 2014, CW3 yelled at Complainant, “shut the fuck up stupid bitch.”

The Agency informed Complainant that event 1 constituted a discrete act, but it was not raised
within 45-days, and therefore dismissed event 1 as an untimely independent claim. However, the
Agency found that events 8 and 19 were timely raised discrete acts and accepted them for
investigation as independently actionable claims. The Agency also accepted all the listed events
as part of Complainant’s overall harassment claim.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigations and notices of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested hearings. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s May 8, 2018 motion for a decision
without a hearing and issued a consolidated decision without a hearing on July 13, 2018.

As an initial matter, the AJ determined that there were no genuine disputes of material fact, or
issue of credibility, and that the Agency was entitled to summary judgement. Regarding
Complainant’s harassment claim involving CW1, the AJ found that the large temporal gap between
the alleged harassing actions in December 2012 and July 2010 was alone insufficient to defeat any
inference of a single, ongoing pattern of workplace harassment. The AJ further found that these
actions were untimely because they occurred years prior to Complainant’s contact with an EEO
counselor, and subject to dismissal. The AJ then found that Complainant did not allege any
actionable Agency conduct on December 17, 2012, when she witnessed CW1 viewing
pornography on his computer. The AJ found that Complainant immediately reported the conduct
to S1, who took prompt and effective remedial action by removing CW1 from duty, quickly
investigating the matter, and then terminating his employment. When Complainant saw CW1 on
December 19, 2012, the AJ noted that it was only for a few minutes, when CW1 mistakenly
believed that he was required to return to work, and then left immediately and did not return to
work.

The AJ found that Complainant’s non-sexual harassment claim was unsupported by the evidence
because the incidents were trivial disagreements and/or frustrations with coworkers, and a few
other unpleasant tribulations. For example, the AJ determined that CW3 was easily agitated and
sometimes expressed frustration with little provocation. While the AJ noted that Complainant was
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upset by such events, her feelings did not transform these actions into discriminatory conduct that
was so severe or pervasive as to the rise to the level of an actionable hostile work environment.
The AJ concluded that when viewing the evidence in the light most favorable to Complainant, the
record failed to demonstrate that the Agency unlawfully discriminated, or retaliated, against her.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant did not
prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that no effective corrective action was taken to ensure that she had
a workplace that was free from a “sexual hostile work environment.”3 Complainant is not
appealing the discrete incidents, only the harassment claims.

The Agency argues that management officials acted quickly after it was informed of CW1’s sexual
behavior. In addition, the Agency argues, the record showed that CW3 treated everyone terribly,
and there is no evidence that Complainant was subjected to a discriminatory, or harassing,
environment based on her race or sex, or in reprisal for protected EEO activity.

ANALYSIS AND FINDINGS

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 the 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 Chap. 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”).

3 We note that the Commission has the discretion to review only those issues specifically raised in
an appeal. See EEO MD-110, at Chap. 9, § IV.A.3. On appeal, Complainant only challenges the
findings regarding her sexual, and non-sexual, harassment claims; as such, we will not address the
claim related to the denial of attending the harassment training in the instant decision.
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Decision without a hearing

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant argues that
the record is “riddled with inconsistencies and untruths,” and asserts that she did not refuse to
cooperate with the Agency’s investigation. However, Complainant did not present any evidence
showing any inconsistencies or untruths, or that she did not refuse to cooperate. We note that mere
allegations, speculations, and conclusory statements, without more, are insufficient to create a
genuine issue of material fact. Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581
(Jan. 12, 2012) (citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001),
request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001)). Accordingly,
we find that the AJ properly issued a decision without a hearing. Furthermore, we find that there
is no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive
a fair evaluation of her case.

Harassment

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 Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, 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 her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
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to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

Sexual Harassment

We acknowledge Complainant's membership in EEO-protected classes and that CW1 subjected
her to unwelcome conduct that was sexual in nature. However, assuming, arguendo, that CW1’s
conduct created an offensive work environment, we find that the Agency took prompt and remedial
action to address CW1’s behavior. In the case of co-worker harassment, 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 be shown that it took immediate and appropriate corrective
action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors,
No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it
took immediate and appropriate corrective action. Id. What is appropriate remedial action will
necessarily depend on the particular facts of the case, such as the severity and persistence of the
harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force,
EEOC Request No. 05920194 (July 8, 1992).

The record does not support Complainant’s assertion that she reported the first incident in 2009.
S1 stated that Complainant did not notify him of the first incident, and the then Manager of the
McClellan Outpatient Clinic stated that Complainant did not notify him of the first incident, and
that he did not believe that any management official was informed of the incident. ROI 1 at
103,171. Regarding the second incident, it is undisputed that Complainant notified management
officials. However, Complainant stated that she did not feel comfortable filing a complaint against
CW1. ROI 1 at 85. Following the third incident in June 2010, the Agency proposed CW1’s removal
in July 2010. While the Agency held CW1’s removal in abeyance, the record shows that
Complainant informed S1 on July 9, 2010, that she could continue to work with CW1, if he
obtained counseling for his problems. ROI 1 at 139.

In December 17, 2012, after Complainant reported CW1’s inappropriate conduct, the Agency
quickly initiated an investigation the following day, and instructed CW1 to not report to work.
When CW1 came into work on December 19, 2012, S1 immediately ordered him to leave again,
because CW1 mistakenly thought that he was just sent home for the rest of the day on December
18, 2012. ROI 1 at 110. In this case, we find that the Agency took immediate and appropriate
corrective action to address CW1’s misconduct. We note that the Agency consulted Complainant
about its actions against CW1, and Complainant provided assurances that she could continue to
work with CW1, as long as he sought treatment to address his behavior. Once it became clear that
CW1’s misbehavior was not corrected, the Agency acted quickly to remove him from the
workplace. Accordingly, we find that Complainant did not establish that the Agency subjected her
to sexual harassment.

Non-Sexual Harassment

For Complainant’s non-sexual harassment claim, we find that Complainant was subjected to
unwelcome verbal conduct. However, we find that Complainant did not establish that any of the
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complained of conduct was due to her protected categories. For example, Complainant alleged that
CW3 covered up a photo of an African American man in his calendar because he did not like the
way the man looked. However, Complainant did not provide any evidence that CW3’s action was
based on race. ROI 2 at 167. In addition, Complainant did not connect her verbal dispute with
CW2 to any of her protected categories. ROI 2 at 182-3. The record also shows that CW3 used
foul language with patients and other coworkers, and there is no indication that the foul language
directed at Complainant was based on her color or race, or in reprisal for protected EEO activity.
As such, we find that Complainant did not establish that the Agency subjected her to non-sexual
harassment based on color or race, or in reprisal for protected EEO activity. Furthermore, there is
no showing that the incidents were sufficiently severe to constitute a hostile work environment.

CONCLUSION

We AFFIRM the Agency’s final decision adopting the AJ’s decision without a hearing.

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

December 18, 2019
Date