Leora R.v.Dep’t of Health & Human Serv.

Equal Employment Opportunity Commission

Aug 30, 2019

EEOC Appeal No. 0120180736 (E.E.O.C. Aug. 30, 2019)

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

Leora R.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120180736

Agency No. HHS-HIS-0312-2016

DECISION

On December 19, 2017, 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
November 7, 2017 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
IN PART and REVERSES IN PART the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse,
Emergency Room (ER), GS-09, at the Kayenta Health Center located in Kayenta Arizona. On
June 21, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to
discrimination and a hostile work environment on the bases of race (African-American), color
(Black), and in reprisal for prior protected EEO activity when:

1. On February 29, 2016, Complainant inquired about a deduction on her paycheck to her
second-line supervisor (S2) (Native American, brown) and was incorrectly told she did
not have any leave to use so Family Medical Leave Act (FMLA) and Leave without
Pay (LWOP) was posted for both days;

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 January 31, 2016, Complainant was charged 11 hours and 30 minutes of LWOP;

3. On January 7, 2016, Complainant was charged seven hours of LWOP;

4. On December 3, 2015, Complainant was (a) told she is not being discriminated against
and to be quiet about the EEO talk with her first-line supervisor (S1) (Native American,
brown); and (b) S1 reported to Complainant a false statement that a Health Technician
(HT1) (Native American, brown) made about her, regarding a conversation she had
with HT1, which HT1 altered the context and the actual statement;

5. On December 1, 2015, Complainant asked, “Why is it when I work with a group in the
ER it seems that I am the only one taking [patients]”

6. On November 25, 2015, Complainant informed S1 that another registered nurse [(RTN
(Caucasian)] stated, “Since day one, [a coworker (ME) (Native American)] has carried
on with negative gossip about [Complainant]. I believe if she is gossiping about
[Complainant], she is likely gossiping about me. It seems as if she gets joy from
bullying and harassing new employees in front of others. [Complainant] and I work
very well together and as a team we support each other, but we don't get the same
feeling working with [ME]”;

7. On November 7, 2015, Complainant was verbally degraded by a Clinical Registered
Nurse (CRN) (Native American, brown) and other staff members;

8. On October 7, 2015, Complainant was denied overtime;

9. On August 5, 2015, Complainant was charged Absent Without Leave (AWOL); and

10. On June 21, 2015, Complainant was reprimanded by a Registered Nurse (RN1), for
socializing with three other African-American co-workers in the lab.

The Agency initially dismissed Claim 1 for failure to state a claim and Claims 2 – 10 for untimely
EEO contact. However, the Commission reversed the Agency’s dismissal finding that Claims 1-
10 stated a cognizable claim of harassment since at least one incident (Claim 1) was timely raised.2
See Leora R. v. Dep’t of Health and Human Srvs., EEOC Appeal No. 0120162702 (Oct. 27, 2016).

After the EEO 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.
In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b).

2 The record reveals that EEO Counselor contact occurred on March 21, 2016.
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The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

FACTUAL BACKGROUND

Claims 1-3 – January 7, 29 and 31, 2016 Leave Issues

Complainant claimed that she had not requested Family Medical Leave Act (FMLA) leave, but
rather annual leave and/or sick leave for the dates in question. Complainant also asserted that a
Civilian Pay Technician (HR) who worked in the Human Resources payroll department, said there
was no FMLA entered for her. Complainant stated that she was on leave from January 7 to
February 5, 2016. On January 31, 2016, she noticed she was incorrectly charged LWOP.

S1 asserted that Complainant was constantly changing her leave requests. S1 recalled that
Complainant’s last scheduled work day was January 7, 2016, and that Complainant was taking the
rest of the month off per doctor’s orders for mental health leave. S1 also stated that it was difficult
to calculate Complainant's leave with the constant changes in her schedule, and on Complainant’s
last days before leaving the facility, the timekeeper was still trying to figure out which type of
leave was for which day Complainant was out. S1 stated that at the time Complainant's time-sheet
was finalized, it showed a negative balance. S1 affirmed that she assumed Complainant had been
asking for family leave without pay and donated hours and approved Complainant's request for the
donated leave when it was determined she had exhausted her leave. S1 also recalled there was a
mandatory webinar, which Complainant attended on the morning of January 7, 2016, but
Complainant was granted leave after that. Complainant was to transfer to Oklahoma on February
7, 2016.

S2 recalled that on February 29, 2016, Complainant called in stating she was not coming in, and
then did not come in for three days. S2 further stated that Complainant was taking a lot of leave
and traveling home to see a sick family member. S2 asserted that when employees failed to submit
leave in a timely manner, it caused problems. S2 further noted that when staff were having issues
with their leave or had depleted leave and began accruing a negative balance, S2 would have to
explain their balance in the Administrative Time and Leave Record (ATLR). S2 stated that
Complainant never interacted with her and did not allege a hostile work environment.

S2 also stated that Complainant was scheduled to work on January 7, 2016, before taking leave.
S2 noted that Complainant had exhausted her leave and it was hard for the timekeeper to track
Complainant's leave because of the constant changing of Complainant's schedule. S2 noted that
S1 may have reported Complainant's leave to S2 to avoid disarray and a last-minute “scramble” to
find a replacement. S2 also asserted that Complainant did not come to her to voice any concern
about harassment.

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HR stated that she reviewed Complainant’s records prior to her transfer to Oklahoma. HR further
explained that for three or four weeks prior to Complainant’s transfer, she had not been at work
and there were several emails back and forth to get Complainant to submit proper documents and
to account for her time and attendance because at the time Complainant left, she had a negative
leave balance. HR noted that Complainant's last time-card went through, but it was incorrect. To
correct the record, HR asked for the records from the timekeeper. HR explained that by the time
Complainant got her paystub, Complainant saw that she was charged LWOP, but HR thought it
was FMLA-LWOP. HR also stated that Complainant was aware of HR's response and had
contacted HR via email. HR asserted that she explained to Complainant that she had insufficient
leave, and the information that she gave to the new service unit in Oklahoma was from
Complainant’s timecards in the system. HR further explained that if employees did not have
enough leave to cover time off, they were required to take LWOP. HR recalled that Complainant
responded via email that she did not want to deal with the Kayenta service unit.

Claim 4 –December 3, 2015 Discussion with S1

The record shows that Complainant had a conversation with S1 on December 3, 2015, regarding
allegations of race discrimination. During that conversation (which Complainant recorded),
Complainant asked S1 to investigate her allegations of discrimination based on Complainant being
the only African-American and Black person in the Kayenta Service Unit. The record establishes
that S1 made the approximate statement, “You sent me an email saying you were being
discriminated against with regard to [C1’s] leave. That was none of your business, and this had
nothing to do with race okay?” S1 also stated, “The other staff also see it as you discriminating
against them because you are putting yourself differently ... the other staff are upset that you see
this as a discrimination issue. I’ve worked with lots of people in the past, for many years, with
many races, and never felt I've discriminated against anybody.” S1 also told Complainant, “I don't
think we're discriminating against you,” and, “You need to calm down on that.” On this same day,
Complainant emailed the Regional EEO Manager (REM) and wrote, “I decided not to file. I have
been threatened, reminded I was on probation, and told that they did not see any discrimination
against me. I was told this today during a conference and that there would be an EEO filed against
me (I am sure most info will be made up) if I pursue this so I'll just plan to leave and work
elsewhere.” 3

On December 4, 2015, Complainant emailed REM, “I am just really fearful that there will be
retaliation against me. I don't want to stir the pot, there was a call made to the police today to the
facility, I am already here alone. I have to protect myself.” On January 7, 2016, Complainant
emailed REM stating, “I am really concerned about my wellbeing here at Kayenta.

3 Complainant asserted that she had a conversation with the Health Technician (HT) about a Madea
movie, that featured Tyler Perry, an African-American actor and director. Complainant stated she
had asked HT “Why would you ask me that? Because I'm the only Black person here?”
Complainant asserted that S1 told her that HT was offended by the conversation and was
considering filing an EEO complaint.

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I am fearful of retaliation if I talk too much or talk to the wrong people but if I don't say something
I may be at jeopardy here as well. I am not sure if I should speak to someone outside of Kayenta
Service Unit because every move I make is being monitored and discussed with individuals who
determine whether, or not I keep my job. I need to know what are my options?”

S1 maintained that it was not her policy to tell staff alleging discrimination that they are not being
discriminated against and acknowledged her choice of language during the meeting was an error
on her part. During this meeting, S1 told Complainant that if there were ever instances where she
felt discriminated against, to report them back to her and she would do what was necessary to
rectify the issue. S1 further stated that she has not been a supervisor long enough to know all the
rules, and her supervisory skills may not be the best because she was not really sent to training for
supervising, and there was no one to provide guidance. S1 also states that she is learning from her
errors and hopes to not make the same mistake twice.

S2 stated that HT1 was an excellent nurse who told her (S2) that she did not trust Complainant and
objected to Complainant always making statements about race. S2 explained that HT1 was
bothered when Complainant made her question about the Madea movie to be about Complainant’s
race. According to HT1, Complainant stated. “It's because I’m Black, right?” and HT1 responded
“No, it's not.” S2 noted that type of speech was not tolerated. S2 also recalled that Complainant
immediately backed off and said, “I'm kidding,” but HT1 was very bothered and may have filed a
complaint.

Claim 5 – December 1, 2015 - Other Nurses Not Working (Co-Worker Harassment)

Complainant stated that she sent an email to S1 on December 1, 2015 explaining when she worked
with this group in the ER, she was the only one taking patients. Complainant recalled that there
were usually four nurses and Complainant would have two or three beds. Complainant asserted
she was taking all the patients, but the nurses that were Native American did not take any patients.
Complainant contended that they were braiding each other’s hair while Complainant was taking
patients. Complainant presented no corroborating evidence in support of this claim, however.

S1 stated she did not recall being informed of any incident. S1 also noted that her whole email
batch was deleted during the new computer replacement and office move, so she had very limited
emails in her files. However, S1 recalled they usually had only three nurses on duty since they did
not have a mid-shift nurse. S1 also explained that there were three nurses for the day shift and
three nurses for nights.

Claim 6 - Gossip

Complainant stated that she had informed S1 that in June and August 2015, that ME was speaking
negatively about her saying, “Who does she think she is working here?”
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Complainant also asserted that in July 2015, RTN informed S1 by email that ME was being mean
to her. Complainant learned of this when RTN forwarded that email to Complainant on or about
November 25, 2015. Complainant claimed that before their conversation on December 3, 2015,
S1 gave Complainant no more than a cursory response to her complaints. Neither Complainant
nor RTN attributed the comments and gossip to Complainant’s race; however, Complainant
claimed that she was treated differently because she was the only African-American employee.

S1 stated that Complainant did come to her to tell her that ME was not treating her well. S1 further
asserted that she issued ME a verbal warning telling her to stop such behavior and that any
continuance of it would be more seriously dealt with. S2 stated that she had no knowledge of this
claim.

The Lead Clinical Nurse (LCN) (Native American, brown) affirmed that ME had a bad attitude
and poor communication skills. RTN also noted that she sent an email to S1 on May 28, 2015,
describing a hostile work environment. RTN further stated that the Native American employees
tried to make everything as difficult as possible and did not welcome anyone outside their race
working there. RTN added that her eight-week assignment at the Kayenta Service Unit as a
traveling nurse was awful and she felt discriminated even though she was only there for such a
short duration. RTN affirmed that she experienced constant bullying by the Navajo employees,
who did not like her because she is White.4 RTN also asserted that the Native American
employees were as mean to her as they were to Complainant. RTN recalled that Complainant
would be conversing with others, trying to get help on something, and the Native American staff
would accuse her of not doing her job.

Claim 7 – Negative and Rude Tone on November 7, 2015

Complainant asserted that CRN and other staff members spoke rudely to her in front of patients.
Complainant noted that the only witnesses to these incidents were patients. However, Complainant
stated that she sent an email to S1 notifying her that CRN was very rude to her, and there was a
Health Technician (HT2) who was very nasty to her, but nothing was done about it. Complainant
stated they would do things like yell at her or snatch something from her or tell her “No, you do it
yourself.” Complainant did not indicate that she informed S1 that she believed that CRN and
HT2’s actions were discriminatory. Complainant claimed that they were all Navajo and she was
the only person spoken to rudely.

S1 denied any knowledge of this claim. S2 stated that anytime the staff has issues within the
department it is reported to the supervisor, but he had no knowledge of this claim.

LCN recalled that CRN spoke to many others in a negative tone, with a stern voice, and to the
point. CRN stated that she did not think there was any discrimination and they all (i.e., the staff)
laughed a lot. CRN also noted that “after hours we all socialized and [Complainant] made some
racial remarks and we just blew it off. I'm kinda dumbfounded with regard to this claim.”

4 RTN did not provide any specific statements or incidents that would support her belief.
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Claim 8 – Overtime on October 7, 2015

Complainant claimed that she had been working overtime since she started her employment.
However, on October 7, 2015, Complainant alleged that the overtime signup sheet noted that the
overtime signup sheet had a note by her name that stated, “Can work if nobody else wants the
day.” Complainant asserted that she was the only individual with the notation next to her name
which she claimed intentionally publicized to the staff that she was the only one denied overtime
that day. No witnesses could verify this claim and there is no evidence related to the overtime
sheet in the record.

S1 stated she could not respond to this claim because Complainant was mainly a night-time nurse.
S1 further affirmed that they worked on a matrix and Complainant was in a separate matrix than
other nurses who worked dayshifts. S1 asserted that she does not recall anything specific regarding
that date. In addition, S1 recalled that Complainant received a lot of travel compensatory time
because she was approved for a lot of training during the time she worked at the Kayenta Service
Unit. S2 asserted that she had no knowledge of this claim.

Claim 9 – AWOL on August 5, 2015

Complainant asserted that on August 5, 2015, she needed to take her car for repairs and the closest
repair shop was located six hours away in Albuquerque, New Mexico. Complainant explained
that she called S1 early in the day explaining that she would not make it to work that evening
because she was at the repair shop waiting on a part. Complainant recalled that S1 approved her
leave via text message and said she would cover Complainant’s shift. Complainant further claimed
that she assumed S1 referred to her entire shift, but S1 later said she (S1) thought it was for only
two hours. Complainant claimed that at 11:00 p.m., S1 sent her a text asking where she was and
noted Complainant would be charged Absent without Leave (AWOL). Complainant stated that
she reminded S1 that she said she would cover for Complainant, but now S1 was not doing so.
Complainant stated that she emailed the Acting Chief Executive Officer to explain and was told to
speak with an EEO counselor.

Complainant also alleged that in November 2015, she witnessed S1 treat a Native American
employee (C1) more favorably when she approved C1’s request on short notice for S1 to cover
her shift because her car’s axle needed repair. Complainant contended that despite C1 failing to
follow policy by calling in at least two hours before her shift was scheduled to start, S1 covered
the shift and treated C1 more favorable than Complainant under similar conditions.

S1 asserted that on short notice, Complainant had called in to say that she would not be able to
make it to work. S1 also indicated that it was difficult communicating with Complainant by cell
phone because there was poor reception. S1 also asserted that Complainant should have been able
to make it to work (albeit a little late). S1 recalled that she reminded Complainant regarding the
leave denial that she was still on probation because Complainant had used a great deal of her leave
and had also been off quite often for training.
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S1 also recalled that Complainant was in S1’s office on a later occasion when C1 called in
requesting leave because the axle on her vehicle broke. S1 stated that Complainant made the
comment right away that S1 was discriminating by granting leave to that staff member because
she was Native American. S1 stressed that C1’s leave request was not the same as Complainant’s
situation and noted that C1 called in with more than two hours of notice. In addition, S1 denied
that her decision to charge Complainant with AWOL was based on race.

Claim 10 – Complainant Told to Stay in ER on June 21, 2015

Complainant stated that when she first arrived at the Kayenta Service Unit, there were three
additional Black employees in the facility with her who she would socialize with during down
times or breaks. Complainant said when there were patients she would be in the ER. Complainant
recalled that on June 21, 2015, a Registered Nurse (RN1) told her that she was not allowed to leave
the ER and go to other areas, then named the three Black employees’ names. Complainant
affirmed that she responded, “Those are the Black people and you're talking to a fourth Black
person.” Complainant stated RN1 responded, “I didn't say anything about color,” then walked off
and said, “I don't have time to argue with you about it.” Complainant stated this conversation
occurred in front of CRN. Complainant noted that she emailed S1 and S2 stating if she could not
socialize with the other Black people specifically, she could resign and move on.

S1 affirmed that RN1 was a contract nurse and she was having an issue with Complainant leaving
the Department without notifying her colleagues. S1 further stated that RN1 would not reprimand
Complainant because she did not have that authority. However, S1 recalled that the Health
Technicians agreed that it was difficult finding Complainant on several occasions. S1 noted that
there was an emergency incident in triage and Complainant could not be found because she was
socializing in the lab. S1 explained that Complainant was told that she needed to let the staff know
of her whereabouts, because staff should not be looking for her in the event of an emergency. S1
asserted that this request had nothing to do with Complainant’s race or the race of her co-workers.

S2 stated that when on duty, an employee was not supposed to leave the unit, especially at night
because there was only a skeleton crew at that time, and an emergency case could enter at any
moment. S2 also recalled that Complainant was found in the lab several times during her shift and
told to tell her staff where she could be found when leaving the unit. S2 stated that he did not issue
a reprimand, but a simple reminder to Complainant to exercise common courtesy to let colleagues
know of her whereabouts.

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
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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”).

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or 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 their 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). 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). 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., EEOC Notice No. 915.002 at 6 (Mar.
8, 1994).

Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in
protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was
subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a time and in such manner that a retaliatory motive may be inferred.
See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v.
Dep't of Health and Human Servs., EEOC No. 0120150971 (Nov. 22, 2017).

The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission
policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the
terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on
Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). Burlington N. & Santa Fe
Ry. Co v. White, 548 U.S. 53 (2006). The statutory retaliation clauses prohibit any adverse
treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999).

The preponderance of the evidence does not support a claim of discriminatory harassment based
upon race or color. The record is devoid of evidence of discriminatory animus based on race or
color on the part of any management official or coworker. Furthermore, the record does not
support that the conduct at issue was sufficiently severe or pervasive.

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However, the record supports a finding that S1 subjected Complainant to retaliatory harassment.
It is undisputed that on December 3, 2015, Complainant came to S1 to raise a complaint of racial
discrimination which is protected EEO opposition activity. The anti-retaliation provisions make
it unlawful to discriminate against an individual because she has opposed any practice made
unlawful under the employment discrimination statutes. Enforcement Guidance on Retaliation and
Related Issues, No. 915.004 (Aug. 25, 2016), II(A)(2) (Retaliation Guidance). Protected
“opposition” activity broadly includes the many ways in which an individual may communicate
explicitly or implicitly opposition to perceived employment discrimination. Id. An example of
opposition includes complaining to anyone about alleged discrimination against oneself or others.
Id. at II (A)(2)(e).

In response to Complainant’s protected opposition activity, S1 made several statements including:
“You sent me an email saying you were being discriminated against with regard to [C1’s] leave.5
That was none of your business, and this had nothing to do with race okay?” The undisputed
record also shows that in this same conversation, S1 reminded Complainant that she was still on
probation. S1 also told Complainant: “I don't think we're discriminating against you,” and, “You
need to calm down on that.” S1 also mentioned that Complainant’s co-workers may be filing an
EEO complaint against Complainant. It is also undisputed that S1 discouraged Complainant from
making “jokes” or comments on the floor to other employees accusing them of having an issue
with her race. These statements resulted in an email by Complainant to the Regional EEO Manager
(REM), the same day, stating Complainant felt threatened, and questioned whether she should file
the discrimination complaint. Complainant also told REM that she wanted to transfer to a different
facility, and that she was concerned for her wellbeing.

S1 stated that it was not her policy to tell staff alleging discrimination that they are not being
discriminated against and admitted that her choice of language during the December 3, 2015
meeting was an error on her part. S1 asserted that she told Complainant that if there were ever
instances where she felt discriminated against, to report them back to her and she would do what
was necessary to rectify the issue. However, it is undisputed that Complainant came to her on
December 3, 2015 with complaints of discrimination and S1 did nothing to investigate
Complainant’s complaint. S1 also stated that she has not been a supervisor long enough to know
all the rules, and her supervisory skills may not be the best because she was not really sent to
training for supervising, and there was no one to provide guidance. S1 noted that she was learning
from her errors and hoped to not make the same mistake twice.

We agree with the Agency’s final decision noting that the record shows Complainant felt
threatened when S1 reminded Complainant of her probationary status, told her to “calm down on
that,” with respect to her complaints of race discrimination, and denied that she and most everyone
on her staff was engaged in discrimination against Complainant.

5 Complainant raised the issue of discrimination as alleged in Claim 9, pertaining to C1 being
treated more favorably with respect to leave due to car trouble.
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However, we disagree with the Agency’s conclusion that Complainant has not met her burden to
show, by a preponderance of the evidence, that she was subjected to retaliatory harassment because
she failed to establish that the actions of S1 during the single meeting on December 3, 2015 “was
severe and pervasive enough to alter Complainant’s work performance.” The threshold for
establishing retaliatory harassment is different than for discriminatory hostile work environment.
Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it
is not severe or pervasive enough to alter the terms and conditions of employment. If the conduct
would be sufficiently material to deter protected activity in the given context, even if it were
insufficiently severe or pervasive to create a hostile work environment, there would be actionable
retaliation.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, Sect.
II.B, e.g. 17; see also Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006); see e.g.,
Martinelli v. Penn Millers Ins. Co., 269 F. App’x 226, 230 (3d Cir. 2008) (ruling that after
Burlington Northern, an employee claiming “retaliation by workplace harassment” is “no longer
required to show that the harassment was severe or pervasive”).

The evidence clearly establishes that S1’s conduct toward Complainant on December 3, 2015 was
sufficiently material to deter protected activity in the given context (i.e., a new employee on
probationary status, reminded of her employment status, told to essentially stop raising claims of
race discrimination because her claims lack merit and told that her co-workers may file a complaint
against her because they find her claims of race discrimination offensive). The record also shows
that S1’s conduct had the effect of deterring Complainant from pursuing an EEO complaint at that
time.

While we find evidence that Claim 4 is sufficient to establish a claim of retaliatory harassment; we
find, however, that the evidence in the record in support of the incidents in Claims 1-3 and 5-10
do not add support to Complainant’s claim of retaliatory harassment. Specifically, with respect to
Claims 1-3, we find insufficient evidence in the record to establish that the responsible
management officials were motivated by Complainant’s protected classes when it issued
Complainant LWOP. With respect to Claims 5, 6 and 7, while the record shows that at least two
of Complainant’s co-workers treated her and others with disrespect and engaged in some level of
bullying, the record does not establish that such conduct was motivated by retaliatory or
discriminatory animus.

With respect to Claim 8, while S1 and S2 have little knowledge of this claim, Complainant failed
to present evidence to establish that she was in fact denied overtime. Even assuming that
Complainant was denied overtime, the record is devoid of evidence to establish that the responsible
management official was motivated by unlawful discriminatory motives. With respect to Claim
9, the record establishes that Complainant and C1 are not similarly situated comparators. The
record shows that Complainant had taken a substantial amount of leave prior to the day she called
in about her car repair issues. The undisputed record shows that the cell connection was poor
leaving communication regarding shift coverage between Complainant and S1 solely through
means of texting. S1 believed that Complainant would only need two hours coverage and
Complainant believed that S1 would cover her entire shift.
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Since Complainant’s shift was due to start at 11:00 p.m. that evening, S1 reasonably believed
Complainant would be able to make it to work two hours late. The record is devoid of evidence
to show that S1’s belief was unreasonable or fabricated. We also find the record devoid of
evidence to establish discriminatory or retaliatory animus on the part of S1 in issuing Complainant
AWOL for failing to make it to work.

With respect to Claim 10, we find that Complainant failed to establish discriminatory motives on
the part of management for asking Complainant not to leave the unit. While Complainant took it
as racially motivated (rather than retaliatory), management explained that on several occasions
Complainant could not be found during an emergency triage because she was socializing in the
lab. S1 explained that Complainant was told that she needed to let the staff know of her
whereabouts, because staff should not be looking for her in the event of an emergency.
Complainant did not refute this assertion.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE IN PART the Agency’s decision with regard to
retaliatory harassment as evidenced in Claim 4 and AFFIRM IN PART as to all other claims. We
REMAND the matter for further processing in accordance with the ORDER below.

ORDER

The Agency is ordered to take the following remedial action:

1. Within 90 days of the date this decision is issued, the Agency shall conduct a
supplemental investigation with respect to Complainant's claim of compensatory
damages. The Agency shall allow Complainant to present evidence in support of her
compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369
(Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The
Agency shall issue a final decision with appeal rights addressing the issues of
compensatory damages no later than thirty (30) days after the completion of the
investigation.

2. Within 90 days of the date this decision is issued, the Agency shall provide at least 16
hours of in-person or interactive EEO training to S1 regarding the right of employees
to be free from harassment and retaliation for engaging in activities protected by Title
VII of the Civil Rights Act of 1964.

3. Within 60 days of the date this decision is issued the Agency shall consider taking
appropriate disciplinary action against S1. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose discipline.

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4. If S1 has left the Agency's employ, the Agency shall furnish documentation of her
departure date. The Agency shall immediately post a notice in accordance with the
paragraph below.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the
report must include evidence that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at Department of the Health and Human Services, Indian Health
Service, Kayenta Health Center in Kayenta, Arizona facility copies of the attached notice. Copies
of the notice, after being signed by the Agency's duly authorized representative, shall be posted
both in hard copy and electronic format by the Agency within 30 calendar days of the date this
decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced, or covered by any other
material. The original signed notice is to be submitted to the Compliance Officer as directed in the
paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of
the expiration of the posting period. The report must be in digital format and must be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
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A civil action for enforcement or a civil action on the underlying complaint is subject to the
deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a
civil action, the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

August 30, 2019
Date