Lashawna L.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 21, 2018

0120152570 (E.E.O.C. Feb. 21, 2018)

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

Lashawna L.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120152570

Hearing No. 510-2015-00228X

Agency No. 200I-0010-2014103161

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated July 13, 2015, finding no discrimination
regarding her 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In her complaint, filed on July 2, 2014, Complainant alleged discrimination based on sex
(female) and disability when she was subjected to harassment in that:

(1) On March 27, 2014, her first line supervisor (S1), Product Line Contracting
Supervisor for Services and Commodities, sent an email instructing all staff members
to keep their doors open during working hours unless they were meeting with a
vendor or engaged in a sensitive phone conversation;

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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(2) On April 3, 2014, in response to her request for clarification on behalf of her therapist
regarding “the specific OSHA requirement” that stipulated how far open she needed
to keep her door, S1 indicated that her door “needed to remain completely opened,”
which was a “direct violation of the terms and conditions he agreed to” as an
accommodation when she returned to work in January 2013;

(3) For three and a half years, S1 “placed greater restrictions and requirement” on her
than her coworkers;

(4) She was “forced to process her procurements utilizing a two-tiered review system,”
while her coworkers used the standard “one-tiered system;” and

(5) By email message dated and effective April 8, 2014, she submitted her resignation
due to the “relentless harassment, targeting and implementation of stricter
requirements” to which she was subjected (constructive discharge).

After completion of the investigation of the complaint, Complainant requested a hearing but later
withdrew the request. The Agency then issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

Initially, we note that Complainant’s August 12, 2015 appeal brief was timely filed and we will
consider the brief accordingly. Our records indicate that Complainant, via her newly appointed
attorney, submitted another appeal brief on April 18, 2017, which was filed beyond the requisite
time limit under 29 C.F.R. § 1614.403(d). Thus, we will not consider the April 18, 2017 appeal
brief for this decision. We note that even if we do consider the April 18, 2017 brief,
Complainant’s request to remand the case back to an EEOC Administrative Judge for a hearing
is denied. Based on the record, we find that Complainant clearly withdrew her hearing request
on May 13, 2015, and asked for a final Agency decision. Other than her mere assertions,
Complainant provides no evidence that her May 13, 2015 decision to withdraw a hearing request
was involuntary or she was so physically or emotionally incapacitated as to be unable to make a
sound decision at that time.

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After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed by the
Agency as a Contract Specialist, GS-11 at the West Palm Beach Veterans Affairs Healthcare
System in West Palm Beach, Florida. Complainant indicated that she had been dealing with
PTSD (post-traumatic stress disorder) since 1977, when she was in the Air Force. She stated that
she was able perform the duties of her position without any medical restrictions.

Complainant indicated that she had been out on an injury compensation claim from October 29,
2012, until January 28, 2013. The record indicates that in September 2012, an identified
Contracting Officer (CO1), who was assigned to review Complainant’s work at the relevant
time, complained that Complainant wrongfully accused him as his not being supportive of her
work and made a “threatening remark” that she “could have killed him.” On appeal,
Complainant acknowledges that CO1 and she “were involved in an incident that escalated to a
level that was totally inappropriate” and CO1 emailed her advising her that he was suing her for
defamation of character based on hearsay information regarding a phone call she had with a
Chief of Service. Furthermore, Complainant acknowledges that after CO1 finally left her office
after the confrontation, her then office mate who shared the office with her, returned to the office
and she “made [an] off-handed comment.” Complainant indicates that the Agency investigated
the incident, described above, but no action was taken against her or CO1. We note that the
September 2012 incident is not at issue, but provides background for the work environment
involving Complainant and a person assigned to review her work.

When she came back to work in January 2013, Complainant stated that management agreed she
would be in a single-person office and allowed to keep the door closed in order to help her with
concentration and focusing on her work by having a quieter work environment. S1
acknowledged that while Complainant was on extended leave, there was an interim agreement
pending her compensation claim negotiated by the Human Resources Specialist. The agreement
was to provide Complainant a single-person office with a door but it did not specify that the door
was to be closed and locked at all times. S1 noted that Complainant’s compensation claim was
subsequently denied but she never requested a reasonable accommodation as she agreed to do
during the negotiation. Complainant does not dispute this. S1 indicated that Complainant
nevertheless was not asked to leave her office. Complainant does not dispute this.

Regarding claims (1) and (2), S1 stated that he sent the email at issue to all his staff to promote
the office customer service and open relationships between customers and employees. S1 noted
that her office serviced numerous walk-in customers and there had been an increase in the
number of employees keeping their doors closed during business hours. S1 indicated that all
employees, including Complainant, were not prohibited from closing the door if they were in a
private conversation or on a phone call or if there was noise outside the office. Complainant
does not dispute this. S1 noted that at the relevant time, Complainant’s door would remain
closed and locked. S1 stated that when he promoted that office doors be left open, Complainant
asked him, “What constitutes open?” She would then open her door approximately 2 cm as
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compliance. There is no evidence that the actions regarding the office door violated any
reasonable accommodation that had been granted or any purported “agreement”.

Regarding claim (3), Complainant claimed that beginning in 2011, she was getting behind with
her work because S1 was creating delays by not timely reviewing her work and because she was
the only employee in the office that was required to submit her work to S1 for review. She
indicated that she was the most productive employee in the office.

S1 acknowledged that there might have been delays in his reviews but Complainant was not held
accountable for any delays he caused. S1 indicated that Complainant’s work was delayed mainly
because she was overcomplicating her work and refusing to take his direction and not because of
his reviews. About S1’s reviewing Complainant’s work, S1 stated that Complainant was
originally assigned two Contracting Officers to review her work, as all Contract Specialists were
required, but they refused to review her work because she would not take their advice. S1 also
indicated that Complainant was not the most productive employee. The record indicates that
Complainant received a “Fully Successful” annual performance rating (the higher ratings were
“Excellent” and “Outstanding”) for the period of October 1, 2012, to September 30, 2013.

Regarding claim (4), S1 acknowledged that at the relevant time, S1 reviewed Complainant’s
work before it was signed off by one of the Contracting Officers. Specifically, S1 stated that the
Contracting Officers in the office refused to review Complainant’s work without S1’s initial
review because they did not want to get in any disputes with her. S1 noted that at the relevant
time, Complainant did not tell him that she had a problem with him reviewing her work and he
did periodically review the work of others as well. Complainant does not dispute this.

Regarding claim (5), Complainant claimed that she was forced to resign effective April 8, 2014,
due to “relentless harassment, targeting and implementation of stricter requirements” to which
she was subjected. Specifically, Complainant indicated that she was subjected to “stricter
requirements” when she was subjected to S1’s reviewing her work before it was reviewed by
Contracting Officers. This matter is addressed above under claims (3) and (4). Complainant
also claimed that she was harassed with the open-door policy. This matter too is addressed
above under claims (1) and (2).

To establish a claim of hostile work environment, 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).

We note that during the investigation of the instant complaint, Complainant also indicated that
since she came back to work in January 2013: she received threatening emails from her
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coworkers; her coworkers took pictures of her in her office and told S1 that she was sleeping;
and a male Hispanic coworker made comments at a staff meeting that a woman’s place was in
the home and there should be a kitchen so women could make lunch for the men. Complainant
acknowledged that “she did not discuss this with [S1] but after discussing it with her therapist,
she determined that it was in her best interest of her health to resign from her position.”

S1 stated that his employees reported to him that Complainant came in to the office at 6 a.m.
although her tour started at 8 a.m. and set her alarm to wake her up at 7 a.m. The employees
assumed Complainant was sleeping in the office. Based on this report, stated S1, he came in
early a few times but Complainant was not sleeping when he knocked on her door. S1 indicated
that Complainant did not report any harassment by her coworkers. S1 stated that it was CO1
who reported that he was harassed by Complainant as described earlier in this decision. S1
denied harassing Complainant or any other employees and he was surprised she resigned in April
2014.

We note that where the alleged harassment is perpetrated by coworkers, liability is imputed to
the employer if it knew or should have known of the misconduct and failed to take immediate
and appropriate corrective action. See Policy Guidance on Current Issues of Sexual Harassment,
EEOC Notice No. N-915-050 at 29-30 (March 19, 1990); Owens v. Department of
Transportation, EEOC Request No. 05940824 (September 5, 1996). In this case, there is no
evidence that Complainant notified the Agency of the alleged harassment by her coworkers prior
to her resignation. The Agency, thus, did not have the opportunity to conduct a prompt
investigation and take remedial action to prevent Complainant from further exposure to the
harassment by her coworkers. Thus, we find that Complainant failed to establish that there was a
basis for imputing liability on the Agency. Based on the foregoing, we find that Complainant
failed to establish that she was subjected to harassment as alleged. Therefore, we find regarding
Complainant’s claim of constructive discharge that Complainant failed to show that the Agency
engaged in discrimination that became so intolerable that she had no choice but to resign. See
Walch v. Department of Justice, EEOC Request No. 05940688 (April 13, 1995); Taylor v. Army
& Air Force Exchange Serv., EEOC Request No. 05900630 (July 20, 1990). Thus, we find no
discrimination in claim (5).

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that she was denied a
reasonable accommodation and she has not claimed that she was required to perform duties
beyond her medical restrictions. Regarding her being required to leave the office door open (as
per office policy), Complainant failed to show that her desire to keep her office door closed and
locked during her office hours would effectively accommodate her medical conditions. It
appears that Complainant was not working well with her work reviewers. Complainant failed to
show that she was treated less favorably than a similarly situated employee under similar
circumstances or that the Agency’s reasons for its actions were a pretext for discrimination.
Based on the foregoing, we find that Complainant has failed to show that the Agency’s action
was motivated by discrimination as she alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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 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
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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

February 21, 2018
Date