0120161085
06-14-2018
Keri C.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Keri C.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161085
Agency No. 200I05442015100194
DECISION
On February 3, 2016, 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 January 28, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that management discriminated against her based on her race (African-American) and/or disability (Post Traumatic Stress Disorder - "PTSD") when she was allegedly subjected to a hostile work environment.
BACKGROUND
At the time of Incidents giving rise to this complaint, Complainant worked as a Health Aid Technician, GS-5 Step 2 at the Agency's Dorn VA Medical Center facility in Columbia, South Carolina. On January 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (PTSD) when she was subjected to a series of Incidents that she described as harassment and which allegedly created a hostile work environment. Complainant identified S-1 and S-2 as the management officials responsible for the Incidents in this complaint. Additionally, Complainant identified two Coworkers (CW-1 and CW-2) and a Registered Nurse (N-1) as individuals involved in this complaint. CW1 is a Health Technician, GS-5, (Race: White), CW-2 is a Health Technician, GS-5, (Race: White), and N-1 is a Staff Nurse, VN-0610-2 Step10, (Race: White).
Complainant is employed as a Health Aid Technician, GS-5 Step 2, at the CBOC located in Sumter, South Carolina. The CBOC is affiliated with the Dorn VA Medical Center (VAMC) in Columbia, South Carolina. Complainant was previously located at Dorn before requesting reassignment to the Sumter CBOC because it is closer to her home located in Sumter.
The Nurse Manager, VN-0610-2 Step13 (Race: White; Disability: None) (S-1) served as Complainant's first level supervisor at the Sumter CBOC from October 2009 until October 2014. S-2, also a Nurse Manager, VN-0610-2 Step11 (Race: White) served as her second level supervisor from 2006 until October 2014. During the Incidents in this complaint, S-2 was located at the Dorn VAMC and served as oversight manager for all CBOCs under the auspices of the Dorn VAMC.
The organization unit staff list for the Sumter C80C shows a racial diversity of five Caucasian and six African American female Nurses; two Caucasian male Medical Support Assistants; one Caucasian and two African American Health Aid Technicians. At the time of the complaint, based on Complainant's assertion, the list of staff suggest that Complainant was one of the two African-American Health Aid Technicians located at the Sumter C80C. S-1, S-2, CW-1, CW-2, and N-1 all testified that they were aware of the Complainant's race.
Disability
Complainant identified her disability as PTSD, and she identified related impairments including difficulty with concentration, memory and sleep, and symptoms of anxiety, nervousness, and stress. Complainant stated that she takes medication (not described) for her symptoms and to help her sleep. Complainant testified that she never informed S-1 about her disability, but she informed S-2, CW-2, and the EEO Manager, in May 2014, related to her hospitalization before or around that time. S-2, CW-1, CW-2, and N-1 all testified that they were not aware of any condition Complainant had that was considered by VA officials as a disability. S-1 testified that Complainant never told her about a disability, and that she never received any notification regarding a disability from Human Resources (HR), Employee Health, or any other organization within the Dorn VAMC.
Complainant's claim of a hostile work environment pertains to the following incidents:
Incident One
During December 2013 (no specific dates), while "prepping" a patient, S-1 told Complainant to "move" while motioning with her arm, which brushed Complainant's arm. Complainant stated that there was another nurse in the area, but Complainant did not list that individual as a witness. Complainant perceived the situation as S-1 yelling "move," and that S-1 seemed impatient with her lack of speed while working with the patient. According to Complainant, S-1 took over the process. Complainant contends that this incident harmed her self-esteem, and that S-1 was harsh towards her and other African-American employees, as well as some Caucasian employees. S-1 testified that she did not recall this specific incident.
Incident Two
During December 2013 (no specific dates), S-1 told Complainant, who was on a lunch break, that she was needed in the lab. Complainant responded that she was on break, and S-1 told Complainant that she was needed right now, with emphasis on the word "now." Complainant contends that S-1 stated "now" in a loud voice in front of a student, who was startled. Complainant perceived S-1's conduct as "belittlement." Additionally, Complainant acknowledged that S-1 was acting within her supervisory authority regarding this matter.
This incident was witnessed by W-1, who testified that S-1 questioned Complainant as to why she was on break and there was no one covering the lab. W-1 testified that S-1 did not yell at Complainant, but she did tell her to return to the lab so that there was coverage.
Incident Three
During December 2013 (no specific dates), Complainant left her reading glasses on her work desk and later discovered one of the lenses was scratched. There were no witnesses to this incident. Complainant testified that she did report the matter to S-1. S-1 testified that Complainant reported that she contacted VA Police and Security Services, and there was nothing that management could do.
Incident Four
On March 26, 2014, Complainant received a written reprimand for failure to report to work on March 21, 2014 through March 24, 2014, and for failing to request leave prior to those dates. Complainant contends that she submitted paperwork requesting leave, and that some of the documents contained information about her PTSD. Complainant's statements, and the documents of record, do not indicate that she submitted her paperwork prior to taking the leave, in accordance with leave policy.
S-1 explained that during a staff meeting on January 16, 2014, Complainant, along with other staff, received a copy of the leave policy requests. S-1's documented email communications with Complainant noting that she did not have sufficient sick leave to cover all of her absences for the period February 18, 2014, through March 18, 2014.
S-1 stated that Complainant received approval of advanced leave for the requested period. S-1 explained that neither she nor HR services could reach Complainant during her absences that extended beyond the end of the approved advanced leave period on March 18, 2014, and continued through March 24, 2014. S-1 documented receipt of Complainant's notice on March 24, 2014, indicating that she "would be" requesting leave under the Family and Medical Leave Act (FMLA) for her absences during the period March 21, 2014 through March 24, 2014.
S-1 also explained that Complainant remained in a leave deficit and needed to request additional advanced leave, which she did not do before taking the additional leave. S-1 explained that she issued a letter of counseling based on advice from HRS. Complainant, according to S-1, was aware of the requirement to call and inform management of her need for additional leave. S-1 explained that neither she nor S-2 had authority to approve advanced leave, which takes time for processing through the upper management level.
Incidents Five and Six
On May 13, 2014, when Complainant approached her car after work, she discovered it had been scratched. Complainant explained that she did not see anyone, and she did not make a police report at that time. The next day she parked in a different location. Her statements do not include any additional occurrences of regarding this matter.
On May 14, 2014, while restocking containers of alcohol prep pads and tourniquets, Complainant found a thumb tack in both containers. Complainant explained that the containers were used by other staff and moved to different locations including an area beneath a bulletin board with notices attached with thumb tacks. Complainant explained that she did not stick herself on thumb tacks, but she reported this incident on the following day. Her statements do not include any additional occurrences regarding this incident.
On May 15, 2014, Complainant reported incidents five and six to S-1, who reported the matters to the VA Police. S-1 explained that the VA Police Services indicated that incident five was a Sumter Police jurisdictional matter, and there was nothing the VA Police Service could do. The documents of record contain a copy of the City of Sumter Police Report noting Complainant's report about the matter and her belief that someone was trying to sabotage her but she did not know who. The Sumter Police report indicated that there was an estimated twenty-dollars in vehicle damage.
Regarding incident six, S-1 testified that upon receiving Complainant's report she conducted a fact-finding review. S-1 stated that upon questioning Complainant as to whether she believed someone "purposely put a thumb tack in the containers," Complainant explained that she did not know. S-1 explained that her review did not reveal any evidence of intentional acts toward Complainant regarding the thumb tack she found in the containers.
The documents of record pertaining to these incidents include an email communication on May 22, 2014, from S2 to S1 regarding S2's visit to the Sumter CBOC on the Friday before May 22, 2014, for an assessment of "morale" at the Sumter CBOC, and a follow up with Complainant about her concerns. S-2's documented visit includes discussion of her meeting with Complainant about incidents five and six, and that Complainant "would not verify" to S-2 a belief that the incidents were "deliberate acts" aimed at Complainant. S-2 noted in her email communication to S-1 about Complainant's statement that she may have become paranoid because of the incidents, that she believed she was being watched, that she did not need a baby sitter, and she wanted to return to the Dorn VAMC.
S-2 noted in the email that Complainant did not mention anything concerning problems with someone sabotaging other items, nor did she indicate that she felt unsafe. S-2's email follow up to S-1 noted that Complainant stated that she was previously seen in Employee Health, and during their meeting at Sumter CBOC she offered Complainant a referral to Employee Health that Complainant rejected. S-2 noted further that she offered Complainant the services of the Employee Assistance Program (EAP) and provided Complainant with information on the program. S-2's notes indicated that Complainant informed her that she would follow up with a mental health counselor with whom she previously met.
The email documents include S-1's report to S-2 regarding Complainant's report to S-2 of her eye glasses and stethoscope, noting that there are cabinets for employees to lock up their belongings. The documents of record include additional follow up discussions between S-1 and her staff to assess morale and any concerns.
Incident Seven
On July 29, 2014, Complainant received a task assignment that she contends CW-1 refused to complete. S-1 explained that Complainant received an assignment because of work redistribution to ensure more equitable assignments. S-1 testified that the health technicians must work together and help each other provide coverage for the front desk and the laboratory areas when one area is lighter and the other requires more assistance, which was the situation on July 29, 2014.
Incident Eight
On August 25, 2014, N-1, who was Acting Supervisor during S-1's absence, emailed the staff regarding work assignments, leave requests, and other staff related issues. The email message included a statement that coworkers should let each other know when leaving for lunch. Complainant contends that she was singled out in the message. She explained that her name was circled following the comment to let co-workers know when leaving for lunch.
N-1 explained that the email message on August 25, 2014, concerned a required courtesy regarding staff letting each other know about leaving and returning on time for scheduled lunch/breaks, and to ensure coverage for the front desk. N-1 testified that there were staff concerns regarding Complainant often leaving for a late lunch and not informing anyone.
Incidents 9 and 10
On October 2, 2014, Complainant escorted a patient to the lab and informed CW-1 that the patient was there for blood work. Complainant contends that as she was assisting the patient, CW-1 "yelled" "we have a system." Complainant testified that CW-1 has yelled at other employees, but she has not seen CW-1 yell at Caucasian nurses who bring patients to the lab. Complainant did not explain whether she was aware of the past circumstances involving the nurses who brought patients to the lab. Complainant also maintained that she received no response from S-1 regarding her report of this matter.
CW-1 explained that he informed Complainant that she failed to follow laboratory procedures, and that she should have directed the patient to sign in and wait for the lab tech to call him. Additionally, CW-1 explained that Complainant inappropriately discussed the patient's concerns in the presence of other patients, which cast a negative impression on the lab workers.
S-1 testified that CW-1 informed her about this incident, and she did not recall Complainant discussing this matter with her. S-1 testified that it was inappropriate for Complainant to take the patient to the lab and say, "He's a hard stick and I'm going to stick him." S-1 explained that Complainant may not have meant to say it that way. However, S-1 explained further, the statement was offensive to others in the lab with the same skills as Complainant.
Incident 11
On October 2, 2014, Complainant informed S-1 that she had worked overtime, and S-1 requested Complainant to send the information in an email because S-1 must approve all overtime. Complainant contends that she was asked to send an email message about her overtime work; however, S-1 took verbal verification from other employees who confirmed Complainant's overtime. Complainant questioned why she had to send an email message.
S-1 explained that the overtime policy requires prior approval with the exception of working late to provide patient care, and in those situations a note afterward is acceptable. S-1 testified that she verified Complainant's overtime for which Complainant received approved compensatory time.
Incident 12
On October 9, 2014, Complainant, as she testified, experienced blurred vision and requested to go to Employee Health. The documents of record indicate that Employee Health is located at the Dorn VAMC. S-1 testified that she offered Complainant the option of having the Employee Health doctor for the Sumter CBOC provide her medical services, which Complainant refused. S-1 testified that she contacted Employee Health at the Dorn VAMC and was informed that Complainant needed to see her own doctor unless the illness was work related. S-1 testified that Complainant insisted that it was work-related, which she did not explain, and she insisted that she needed to go to Employee Health at the Dorn VAMC. S-1 testified that Complainant was not allowed to drive herself to Dorn, and Complainant called her daughter, who drove her there.
Incident 13
On October 14, 2014, Complainant asked S-1 to sign her FMLA paperwork. S-1 explained that she informed Complainant that another official was the only one who could sign her paperwork approving her FMLA request for advanced leave. S-1 stated that Complainant did not have any available leave for which she could approve, and she did not have authority to sign approval of the FMLA request. S-1 testified that she informed Complainant that she was absent without leave (AWOL) effective October 14, 2014, until she received approval of her advanced leave for FMLA. S-1 stated that she asked Complainant whether she would return to work the next week, and she replied that she did not know. S-1 testified that Complainant remained absent from work and did not return until after S-1 retired on October 31, 2014.
Incident 14
On an unspecified date, Complainant indicated that she could did not find the laboratory patient roster in the drawer where she left it the previous evening in preparation for the morning processing of patients. Complainant explained that the missing roster slowed down everything that next morning, and that S-1 reacted as if she did not believe Complainant had prepared the roster until it was located. Complainant explained that the roster was found by CW-1 in the shred bin, and that she (Complainant) thought that CW-2 may have placed the roster there, and she thought the CW-1 thought the same.
Incident 15
Complainant contends that on a daily basis beginning, in February 2014, if she did not return to her work station at the time her break or lunch was over, S-1 came to the break room and asked her about her schedule. Complainant explained that sometimes she could not take a break or lunch at her scheduled time because she was busy with a patient or work. She indicated that her concern was that S-1 never explained her interruption of Complainant's break and lunch time to ask about her break/lunch schedule. Complainant explained that S-1 provided a schedule for everyone's breaks and lunch based on what each person requested, and that S-1 kept a copy of that schedule in her office so that she knew when each person was on break or at lunch. Complainant stated that she did not always tell S-1 about a change in her schedule but following the incidents in this complaint she began to inform S-1 each time.
S-1 testified that she assigned break and lunch schedules because employees (not just the Complainant) "took too long" on breaks and lunch. S-1 testified that the schedule was not a punitive measure but a way to manage the schedules.
Incident 16
Complainant contends that, on unidentified dates, S-1 changed her designated lunch schedule. She explained that S-1 changed her lunch schedule to accommodate other employees regarding work-related needs. Complainant's statements suggested that on various occasions S-1 changed all of the schedules related to work needs. Complainant explained that her contention with this matter is that sometimes her schedule change was inconvenient because she had planned other activities for her scheduled lunch time. Complainant stated that it seemed like she was the one always changing her lunch schedule for another worker, so she decided to take her lunch at the end of the scheduled time allotted for lunch to eliminate having to change her schedule. Complainant did not explain whether her decision was made with agreement by S-1.
S-1, S-2, CW-1 and CW-2 stated that as the Clinic's managing supervisor, the Nurse Manager changed not only the scheduled lunchtime for Complainant but also CW-1 and CW-2 related to the needed staff coverage for the front desk, the laboratory and other areas of the Clinic. S-1 explained that all of the employees were required to provide coverage during breaks and lunch times for each other in the laboratory and at the front desk. S-1 testified that she always asked each employee before changing a schedule.
Incident 17
On an unidentified date, S-1 questioned Complainant about taking her lunch later than her scheduled time. Complainant contends that she went to lunch late related to work needs. Her statements suggested that she did not inform S-1 about her lunch schedule change on that day, and that S-1 questioned the reason for her late lunch. Complainant explained that she began informing S-1 about her breaks and lunch times because of this matter and all other incidents resulting in questions about her break and lunch schedule. Complainant does not indicate any further concerns related to this matter.
S-1 explained that as part of her supervisory responsibility to ensure work completion and proper staff coverage she asked Complainant about her late lunch to find out what was causing the schedule change. S-1 testified that on a past occasion when Complainant reported that she took her lunch late because of having to triage a patient S-1 found that the circumstances did not support Complainant's decision for taking a later lunch on that occasion. Additionally, S-1 testified that on another past occasion Complainant and CW-2 both took lunch at the same time and the lack of lab coverage resulted in a patient's delayed services. S-1 explained that this is why she checked on schedule adherence and asked for reasons regarding any unscheduled deviations, as the changes affect needed staff coverage.
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
CONTENTIONS ON APPEAL
Complainant raised no new contentions on appeal.
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").
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'. A hostile work environment is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (quotations omitted). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115.
To establish a claim of hostile work environment harassment, Complainant must show that: (1) she is a member of 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 the 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems. Inc. at 6, 9 (Mar. 8, 1994).
A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of protected bases. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. We find that Complainant has not established that the incidents comprising her hostile work environment claim, which were for the most part work-related interactions, were based on her race or disability. This Commission has consistently held that not every unpleasant or undesirable act by a supervisor constitutes a EEO violation. See Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Moreover, we do not find that these incidents, without more, were severe or pervasive enough to establish a valid claim of harassment.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's FAD.
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.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prIncidented 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
_6/14/18_________________
Date
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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