Juanita A.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160116 (E.E.O.C. Jan. 11, 2018)

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

Juanita A.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120160116

Agency No. 200P-0644-2014104310

DECISION

On September 22, 2015, 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
August 21, 2015, final decision 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Chief Financial
Officer (CFO) at the Phoenix Veterans Affairs Medical Center in Phoenix, Arizona. On October
1, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile
work environment based on race (Caucasian) and sex (female) when:

(a) between March 2012, and May 11, 2012, the Chief of Health Administrative Services
(CHAS) accused her of engaging in a personal intimate relationship with a co-worker,
and during his assignment as Acting Associate Director, asked her about this relationship
and insinuated that it was an intimate relationship;

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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(b) on May 12, 2012, she reported CHAS’s behavior to her supervisor, the Associate
Director (S1), who recommended mediation;

(c) on May 15, 2012, she met with CHAS and informed him that his comments and
questions about her personal life were unprofessional and inappropriate, and sent an
email to S1 and CHAS regarding the discussion;

(d) on an unspecified date, she heard rumors that CHAS had referred to her as a
“mudshark” in front of his section chiefs, indicating that the term is used in the South for
women who sleep with Black men;

(e) on July 11, 2012, S1 asked her if she had a personal relationship with the
Consolidated Patients Account Center (CPAC) Coordinator (C1) and told her that she
could not have a personal relationship with anyone at work because it would have a
negative impact on her career and credibility as the CFO;

(f) on or about November 2012, she was subjected to a fact-finding inquiry based on an
anonymous letter management received that falsely accused her of sexual harassment and
alleged her actions were predatory towards Black men;

(g) on May 2, 2013, a co-worker told her that CHAS heard a rumor in the front office that
she had engaged in a three-some in her office with her coworkers;

(h) on May 6, 2013, she reported CHAS’s behavior to S1 who in turn asked her if she had
a three-some with the coworkers and subjected her to a second fact-finding inquiry;

(i) on May 8, 2013, she requested leave due to her high anxiety, and S1 responded that he
was addressing the “HAS Service Chief Issue” and that he shared her concerns;

(j) on May 9, 2013, in an email to S1, she gave management an opportunity to address the
behavior she reported regarding CHAS, and S1 accused her of being demanding and
inappropriate;

(k) on May 22, 2013, S1 told her that high performers are not treated in the same manner
as low performers and asked her, “do you know how much work you created for me?”;

(l) on August 14, 2013, she spoke to a Human Resources Officer (HR1) who she learned
was conducting a fact-finding into the alleged three-some incident and had interviewed
CHAS who was aware of the anonymous letter reporting the alleged three-some, and felt
that the decision to conduct another fact-finding was both embarrassing and started the
rumor circulating again;

(m) on an unspecified date, she became aware that CHAS told his staff that something he
previously reported and no one believed was now being investigated by the facility;
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(n) on May 15, 2014, S1 told her that the Veterans Integrated Service Network (VISN) 18
received an anonymous letter with allegations of her sexual misconduct;

(o) on May 15, 2014, S1 ordered her not to speak with any VA employees, ordered VA
police to escort her to her office, and subjected her to a search by VA criminal
investigators;

(p) on May 15, 2014, the VISN 18 Director established an Administrative Investigation
Board (AIB), based on the anonymous letter alleging sexual misconduct against her;

(q) on May 15, 2014, S1 detailed her to Quality Management Service;

(r) on May 20, 2014, the Acting Medical Center Director placed her on administrative
leave pending the outcome of the AIB;

(s) on June 10, 2014, the Acting Associate Director told her that S1 rescinded her
administrative leave and ordered her to return to work on June 12, 2014; and

(t) on June 24, 2014, she was subjected to an AIB.2

After 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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

Complainant filed the instant appeal. There is no record of her filing any brief or statement in
support of her appeal. The Agency filed a statement in opposition to Complainant’s appeal in
which it urged the Commission to affirm its final decision.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

2 Complainant withdrew several additional claims that are not included herein.
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To establish a claim of harassment 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 classes; (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, 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).

Therefore, in order to establish her harassment claim, Complainant must show that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

We agree with the analysis and conclusions reached in the Agency’s final decision. Specifically,
we agree that the record supports the finding that in June 2012, CHAS, who was one of
Complainant’s co-workers, referred to her as a “mud shark” during a conversation he had with a
coworker. The record also shows that “mud shark” is a derogatory term specifically related to
Complainant’s race and sex. We agree with the Agency that CHAS expressed a negative bias
against Complainant when he used the term.3 The Agency decision stated: “Using this particular
term had the result of simultaneously expressing bias against Complainant, as a white woman
who does not fit within the confines of what the HAS Chief believes to be acceptable behavior
for a white woman in terms of engaging in interracial relationships, and, for the most obvious
reasons, against black men in general. In short, this was a very offensive comment.” As such, we
find that the reference to “mud shark” is objectively offensive and the record shows that
Complainant perceived it as such. 4

The record also shows that the derogatory statements made by CHAS were not made directly to
Complainant but to other individuals. The record indicates that the statements were made about
a year apart from one another and were not related to the rest of the issues associated with
Complainant’s harassment complaint. Accordingly, we do not find such comments to be
sufficiently severe and/or pervasive to establish a hostile work environment.

3 Complainant was known to date Black men.
4 The record also shows that CHAS discussed rumors about Complainant’s sexuality at work.
Specifically, the evidence establishes that, in May 2013, CHAS provided an unsolicited
“warning” to the Acting Outpatient Chief to “be careful” about discussing personal matters at
work and informed her that there was already a rumor about her having a threesome with
Complainant and another employee at the facility.
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Moreover, as the Agency notes, even if the discriminatory statements made by CHAS were
sufficiently severe to create a hostile work environment, we agree that prompt, effective action
was taken by S1 after he learned of the statements. The evidence establishes that S1
immediately consulted with HR1 and the VISN 18 Director, conducted a fact-finding inquiry,
issued discipline to CHAS and ordered the behavior to stop, which it did.

We agree with the Agency and conclude that the evidence in the record does not support the
finding that the other alleged incidents were motivated by Complainant’s race or sex. We note
that the additional alleged conduct mainly pertains to the actions taken by Agency officials in
response to anonymous complaints filed against Complainant. The evidence supports the
conclusion that management officials attempted to strike an appropriate balance between
Complainant’s rights and management’s responsibility to investigate alleged misconduct.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision.

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

January 11, 2018
Date