Kristie D.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2016

0120143097 (E.E.O.C. Dec. 21, 2016)

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

Kristie D.,1
Complainant,

v.

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

Appeal No. 0120143097

Hearing No. 443-2013-00121X

Agency No. 200J-636D-2012103999

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October
17, 2012, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physician at the
Agency’s Community-Based Outpatient Clinic (CBOC) in Mason City, Iowa. On July 24,
2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her
and subjected to a hostile work environment on the bases of her national origin (Hispanic),
religion (Catholic), color (not white), and in reprisal for prior protected EEO activity when:
(1) in January 2011, Complainant was not allowed to have a standard administrative day and
her supervisor (S1) commented “you will need to tough it out as you have already taken time
off”; (2) in February 2011, S1 transferred two difficult patients to Complainant’s work
schedule; (3) on October 31, 2011, S1 asked her if she was ever racially profiled; (4) in
November 2011, S1 commented that Complainant’s culture was different and that Complainant

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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was inferior; (5) in November 2011, S1 demanded Complainant’s resignation; (6) in November
2011, S1 undermined Complainant’s professional standing with her team; (7) in December
2011, S1 stated that Complainant’s request for leave during Easter week wouldn’t be a
problem “as we don’t have too many of you working here”; (8) from January 2012 through
August 2012, Complainant was not allowed a lunch break; (9) on February 14, 2012, S1 yelled
at Complainant and stated that her suggestions were ridiculous and didn’t matter; (10) in
March 2012, S1 yelled vulgarities and stood up aggressively while pointing her finger in
Complainant’s face; (11) in April 2012, S1 commented that no one likes foreign doctors; (12)
in May 2012, a nurse (N1) commented that she couldn’t trust Complainant’s culture and
training; (13) in June 2012, S1 yelled at the staff regarding the thermostat; (14) on July 3,
2012, S1 yelled and pointed her finger in Complainant’s face and grabbed papers out of
Complainant’s hand; (15) on July 3, 2012, S1 charged toward Complainant, pointing her
finger in Complainant’s face and yelled at her regarding patients switching providers; (16) on
or about July 19, 2012, Complainant’s manager (M1) refused to address Complainant’s
concerns about the behavior of a coworker; (17) on August 6, 2012, Complainant was issued a
written counseling; (18) on August 13, 2012, S1 refused to have Complainant add her own
patients to her schedule; (19) on August 17, 2012, S1 commented “fuck her” when another
nurse (N2) was talking about Complainant; (20) on August 17, 2012, N2 gestured toward
Complainant in a violent manner when she yelled at her; and (21) effective August 20, 2012,
Complainant was forced to resign from her position.

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 (AJ). Complainant requested a hearing but
subsequently withdrew her request. Consequently, 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. On appeal, Complainant argues that the
investigation was insufficient and that the statements of coworkers and management officials
are not worthy of belief. She also reiterates her contention that she was subjected to a hostile
work environment.

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”). As to Complainant’s contention on appeal that the
investigation was insufficient, our regulations provide that the agency shall develop an
impartial and appropriate factual record upon which to make findings on the claims raised by
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the written complaint and define an appropriate factual record as one that allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred. See 29 C.F.R.
§1614.108(b). Upon review, we find that the factual record developed in this case allows us to
draw conclusions as to whether discrimination occurred. Accordingly, we determine that the
record is adequately developed.

Next, regarding the claims that constitute discrete acts, to prevail in a disparate treatment
claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The
burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000).

Here, the Agency articulated legitimate, nondiscriminatory reasons for its actions constituting
discrete acts. With respect to (1), S1 stated that she did not have the authority to deny
Complainant an administrative day as it is a standardized automatic process. As to (2), the
record shows that in order to be transferred to another physician, a patient must request the
transfer through a patient advocate, and that S1 did not have the authority or ability to transfer
or reassign patients. As to (8), affidavit statements from both management officials and nurses
show that Complainant had full discretion over when to take breaks based upon her work
obligations and patient schedules. The record does not support her contention that management
was in a position to refuse to allow her to take lunch.

Finally, with respect to (17), the record shows that both Complainant and S1 were given
written counseling following a series of altercations, and several official mediation sessions,
between them. Complainant’s manager (M1) states that the counseling letters “were not
intended to be punitive” but were meant to “make expectations clear” and remind both
Complainant and S1 that they were required to interact in a professional manner. We note that
although Complainant contends that S1 was “volatile” and lacked the ability to control her
temper, these claims are not supported by witness statements. In so finding, we note that the
record shows that both Complainant and S1 often raised their voices to one another, and that
during a meeting on July 19, 2012, organized by M1 in order to allow all staff members to
discuss workplace conflicts, a number of nurses stated that Complainant was extremely
difficult to work for. We do not find that Complainant has shown that any of the Agency’s
articulated reasons for its actions were a pretext for unlawful discrimination.

Next, to establish a claim of discriminatory harassment, Complainant must show that: (1) she
is a member of the statutorily protected class; (2) she was subjected to harassment in the form
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of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998);
29 C.F.R. § 1604.11. 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 (March 8, 1994). Further, the incidents
must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must also show that there is a
basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982).

Here, we find that Complainant has not established that any of the incidents alleged were based
on her protected classes. In so finding, we note that despite Complainant’s contentions,
affidavit testimony and contemporaneous witness statements consistently contradict
Complainant’s version of events. Further, we find that Complainant has proffered no evidence
beyond her mere assertions that any coworker or management official ever disparaged her
national origin, color, or religion. Further, with respect to Complainant’s claim that on
October 31, 2011, S1 asked her if she was ever racially profiled, the record shows that this
incident occurred after the police were called over a misunderstanding with Complainant’s
teenaged son. S1 states that after the police came and spoke to Complainant, “she insinuated
that she had been questioned harshly because of her race” and that S1 was attempting to
empathize with her. Moreover, we note that Title VII is not a civility code and while it seems
clear from the record that Complainant and S1 had a personality conflict and great difficulty
communicating effectively with one another, the evidence does not support a finding that the
incidents alleged were motivated by discriminatory animus toward Complainant’s protected
bases or amounted to unlawful harassment.

Finally, Complainant asserts that, due to the hostile work environment, she had to resign. As
such, Complainant argued that she was constructively discharged from the Agency. The central
question in a constructive discharge case is whether the employer, through its unlawful
discriminatory behavior, made the employee's working conditions so difficult that any
reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman
v. Dep’t. of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002).

The Commission has established three elements which Complainant must prove to substantiate
a claim of constructive discharge: (1) a reasonable person in Complainant’s position would
have found the working conditions intolerable; (2) conduct that constituted discrimination
against Complainant created the intolerable working conditions; and (3) Complainant’s
involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't.
of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, Complainant failed
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to provide any persuasive evidence to support her assertion that she was subjected to a hostile
work environment on any of her protected bases. Therefore, we conclude that Complainant has
not established her claim of constructive discharge.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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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 21, 2016
Date