Livia C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20160120142968 (E.E.O.C. Nov. 30, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Livia C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142968 Hearing No. 560-2013-00175X Agency No. 2003-0331-2012103056 DECISION The Commission accepts Complainant’s appeal from the Agency’s July 23, 2014 final order 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Veterans Claims Examiner at the Agency’s Regional Office in St. Louis, Missouri. On April 26, 2012, Complainant observed a banana hanging over the cubicle of a co-worker (CW1). Complainant reported the incident to her supervisor (S1-1). S1-1 took a photograph of the scene and informed his superiors of the incident. S1-1 removed the banana, but Complainant claims that the banana remained hanging for over two hours. Management determined that a co-worker (CW2) hung the banana and a second co-worker (CW3) had encouraged him to hang the banana. 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. 0120142968 2 On May 1, 2012, Complainant spoke with her second-level supervisor (S2) about the incident. S2 informed Complainant that management would fully investigate the incident. Complainant claims that S2 told her that “whatever we do, you won’t see it” which she interpreted as that nothing would change. That same day, Complainant learned from CW1 that S2 made a comment overheard by others to CW3 who was crying in her cubicle that “everything will be okay; you don’t have anything to worry about.” On May 3, 2012, Complainant asked S2 about his comments to CW3. S2 acknowledged consoling CW3 and said that he wanted her to feel better because she was his friend and was really feeling bad about her actions. Management investigated the incident and subsequently issued a letter of reprimand to CW2 and counseled CW3 for their actions. In July 2012, Complainant met with the Director, Assistant Director, and the Education Officer. The Director informed Complainant that an investigation had been conducted. Complainant asked why she was not included in the investigation. Complainant claims that the Director told her that there was no need as the investigation confirmed the incident occurred and the co-workers involved admitted to their involvement. Complainant complained to the officials that whatever discipline had been issued was insufficient because CW2 and CW3 walked around as if nothing had ever happened. Complainant claims that CW3 taunted her by looking into her eyes and saying “Good morning” in a hateful manner. Additionally, Complainant complained that CW3 did things to push her such as returning claims for correction that did not need it or placing documents from the fax machine on Complainant’s desk regardless of who they were addressed to. The Director and the Assistant Director had a follow-up meeting with Complainant. The Director informed Complainant that he had spoken with S1-1 and S2 about her concerns. S1-1 addressed the issue with CW3. Complainant had been involved in the planning of a team pot-luck luncheon. Complainant and several employees had disagreements about the planning, and decided to re-schedule the meeting for another day. S1-1 became very concerned about the team dynamics and commented to CW1 to schedule the next team meeting on a day when Complainant would not be at work. S1-1 later acknowledged to Complainant that he made the comment and apologized. On June 15, 2012, an employee (CW4) who had been accused of sexual harassment at another office was moved to a cubicle in front of Complainant. This was the only cubicle available at the time. Complainant was not in the office at the time, but when she returned she discovered that her fan was missing. Complainant reported the missing fan to S1-1. S1-1 spoke with CW4 about the issue, and CW4 returned the fan. On August 6, 2012, management held a section meeting. Complainant claims that she was accused of leaving the meeting by a supervisor (S1-2). Complainant alleges that S1-2 walked up to her and told her she needed to get back to the meeting in a loud and disrespectful tone. Complainant contends that she had been standing near her cubicle at the meeting and simply decided to sit down close to her cubicle. 0120142968 3 On November 28, 2012, Complainant received metro vouchers from S2. Complainant signed them and placed them under the telephone on her desk as a reminder to go to the credit union to exchange them for a metro pass. On November 30, 2012, Complainant noticed that they were missing. CW1 arrived at work and told Complainant that she had taken the vouchers as a joke, but that she would return them the next day. The next day, CW1 arrived at work and informed Complainant that she could not find them. Complainant told CW1 that they should talk to S2. CW1 then handed Complainant her monthly metro pass for Complainant to use. On December 6, 2012, Complainant’s new first-level supervisor (S1-2) advised Complainant to describe the incident in writing. S1-2 spoke with CW1 on December 7, 2012, and requested a statement from her a few days later. On December 20, 2012, S2-3 asked Complainant for a formal meeting and advised Complainant that the Assistant Education Officer had instructed her to confiscate the metro pass that CW1 had given her based on the Agency’s transportation benefits handbook. Complainant told S1-2 that she would not be turning in the pass because she had no other way home. Complainant went to talk to S2 about the matter, but she claims as she approached, he gave her a look that she perceived as “pure hatred.” Complainant alleges that she turned around and gave S1-2 the metro pass after speaking with a union representative. On August 2, 2012 (and amended on January 8, 2013), Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (African-American), color (Black), and in reprisal for prior protected EEO activity as evidenced by the multiple incidents described above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ granted summary judgment in favor of the Agency and issued a decision without a hearing on June 11, 2014. In the decision, the AJ initially determined that Complainant’s claims could be grouped into three categories: the banana incident, the metro voucher incident, and other actions Complainant perceived as discriminatory. With regard to the banana-related incidents, management agreed that the hanging of the banana was inappropriate and took prompt steps to correct the behavior. Complainant believed that the banana was not removed quickly enough, she was not included in the investigation, she was not informed of the result of the investigation, she was not consoled after the incident, and management expressed personal opinions regarding whether harm was meant by the hanging of the banana. First, the AJ noted it was not unreasonable for management to determine that Complainant did not need to be included in the investigation as she did not witness the hanging of the banana. Even without Complainant’s involvement, the investigation fully revealed how the banana came to be over the cubicle, the identity of the individuals involved, and the discussions that took place. Additionally, it was not Complainant’s cubicle over which the banana was hanging. Finally, discipline of employees is not shared with bargaining unit employees, so it was not 0120142968 4 unreasonable for S2 to state that Complainant would not see any discipline imposed against the offending employees. The AJ noted that it was undisputed that the identity of the employee responsible was known immediately; therefore, there was no need for a major investigation. The investigation took place on July 17, 2012, with a follow-up on August 2, 2012. CW2 received a letter of reprimand for hanging the banana while CW3 received a letter of counseling for suggesting that they hang the banana. Complainant believed that the discipline issued was insufficient because CW2 and CW3 “walk around laughing and giggling like they’ve done nothing wrong.” The AJ noted that Complainant was understandably offended by the employees’ conduct; however, the evidence showed that the Agency took steps to address the situation and no similar conduct ever occurred again thus demonstrating that the corrective action taken was appropriate and effective. Furthermore, the conduct at issue was not done to Complainant; rather, she was an observer as all other employees in the unit. Complainant further alleged harassment when S2 comforted CW3, but did not show concern for Complainant. S2 affirmed that Complainant was not at work that day otherwise he would have spoken to her. S2 confirmed that CW3 was his friend. The AJ noted the hazards of friendships and bargaining unit employees, but added that S2's actions were not improper under Title VII. With respect to the metro card incident, Complainant believed that it was discriminatory for S1-2 to not act immediately against CW1 after she took the metro vouchers; that she had to surrender the metro pass; and that S2 gave her a mean look and did not discuss the incident with her. Complainant admitted that S1-2 asked her to provide her statement in writing, which Complainant provided on December 11, 2012. S1-2 spoke to CW1 regarding the incident on December 7, 2012, and requested a statement on December 12, 2012. S1-2 reported the incident to S2, and CW1 was subsequently disciplined for her actions. Thus, the AJ found that S1-2 took action to address the issue after Complainant reported it. Furthermore, the AJ noted that the transferred metro voucher was non-transferrable; therefore, it was reasonable for management to take away the voucher after it was impermissibly transferred. Finally, as to the look given by S2, the AJ noted that Complainant provided no evidence that S2 refused to speak to her about the voucher issue. Further, Complainant made no attempt to stop him as he was leaving; instead, she interpreted his look and decided she would not address him or the issue. Complainant presented no evidence that the look was based on discriminatory or retaliatory animus. Regarding the remaining issues, the AJ found that Complainant reported the taking of her fan, and management acted to retrieve the fan. Management advised CW4 that he could not remove anything from anyone’s desk and there is no evidence that CW4 engaged in any further similar conduct. As to the negative comments, the AJ noted that Title VII was not meant to address this type of behavior. Further, Complainant was not issued any discipline with regard to either incident. Complainant reported that CW3 and others were being mean to her, and S1- 0120142968 5 1 spoke to CW3 regarding Complainant’s concerns. The issue was further resolved when CW3 was moved in August 2012. The AJ concluded that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected 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). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, she has not shown that she was subjected to a hostile work environment in violation of Title VII. With respect to the issues related to the banana-hanging incident, the Commission acknowledges that under certain circumstances, a single incident of offensive conduct may be sufficient to create a hostile work environment under Title VII. See EEOC Compliance Manual, Section 15, “Race and Color Discrimination,” No. 915,003, 15-38 (Apr. 29, 2006). In the instant case, the record shows that Complainant observed a banana hanging 0120142968 6 in the workplace over CW1’s cubicle, which she perceived as an offensive reference to African-Americans as monkeys. Complainant reported the matter to S1-1 who took steps to immediately address the situation. ROI, at 354. S1-1 took photos of the scene, notified his superiors of the situation, and removed the banana. Id. at 357. Management initiated an investigation, and the employees responsible (CW2 and CW3) were identified and disciplined for their conduct. Id. at 309. Complainant may have been offended after learning that S2 consoled CW3 days after the incident; however, there is no evidence that he engaged in conduct impermissible under Title VII. Furthermore, despite Complainant claims related to management’s investigation of the matter and the discipline imposed, the record does not show that any similar conduct recurred. As such, the Commission finds that Complainant failed to establish that the Agency should be held liable for the co-workers’ conduct. With regard to the metro vouchers issues, the Commission agrees with the AJ that there is no evidence that the incident alleged was based on discriminatory or retaliatory animus. S3 affirmed that she collected statements and reported the incident to S2 after Complainant reported that CW1 had taken and lost Complainant’s metro vouchers. ROI, at 440-41, 451, 466. S3 confirmed that she was advised by upper management to confiscate the pass CW1 gave to Complainant because the transit benefits are not transferrable under Agency policy. Id. at 453. S2 stated that Complainant did not attempt to talk to him about the situation on the day in question, but he would have made time for her if she had. Id. at 340. Furthermore, the record shows that management disciplined CW1 for her conduct, and no similar conduct recurred. Id. at 467. As to the remaining issues, the Commission agrees with the AJ that there is no evidence that the alleged incidents were based on discriminatory or retaliatory animus. More specifically, S1-1 acknowledged that he commented to CW1 to schedule a team meeting when Complainant was not in the office. ROI, at 364. S1-1 explained that Complainant had several conflicts with her co-workers and he was very concerned with the negativity present in the team. Id. at 364- 65. S1-1 further stated that he discussed the matter with Complainant and apologized. Id. at 365. With respect to the issues with CW4 and the removal of her fan, S1-1 confirmed that CW4 was moved from another office into the cubicle in front of Complainant because it was the only available cubicle. Id. at 368. S1-1 learned that CW4 used Complainant’s fan in her absence, and he instructed CW4 to put it back and to not touch it again. Id. There is no evidence that any similar conduct recurred. Finally, with respect to Complainant’s issues with CW3, S1-1 maintained that he spoke with CW3 and advised her to avoid contact with Complainant. Id. at 376. CW3 later accepted a reassignment to another area. Id. at 210. The Commission concurs with the AJ’s determination that, even when viewing all of the alleged incidents and evidence in the light most favorable to Complainant, Complainant’s hostile work environment claim must fail. Finally, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency’s reasons for its actions were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds no basis to disturb the AJ's summary judgment decision 0120142968 7 finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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). 0120142968 8 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 November 30, 2016 Date Copy with citationCopy as parenthetical citation