0120170066
09-14-2018
Liza B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Liza B.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170066
Agency No. 200P06052015105457
DECISION
On September 19, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 11, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency discriminated against Complainant when it allegedly subjected her to harassment based on her national origin and sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Instruments Technician at the Agency's Loma Linda Veterans Affairs (VA) Medical Center in Loma Linda, California. Complainant started working in the cardiology department in December 2014. See Report of Investigation (ROI) at pg. 150. She reported to her first line supervisor (S1) (Caucasian, female), and was initially mentored by a coworker (CW1) (Italian/Spanish, male). CW1 performed a skills evaluation, and Complainant noticed "big differences" between her responses and CW1's record. She emailed S1 to inform her of the discrepancy, and Complainant stated that, when CW1 learned that she reported this, he started harassing her. See ROI at pgs. 156, 162-163.
Starting in December 2014, Complainant stated that, when she placed a box of gloves in one of the shared rooms, CW1 would remove them. See ROI at pg. 168. Complainant alleged that, in February 2015, she was the only one performing electrocardiograms (EKGs). See ROI at pg. 170. On February 5, 2015, Complainant found a note on one of the computer keyboards stating, "Is it okay to take over someone's space without asking?" She believed that CW1 was responsible for the note. See ROI at pg. 172. Also on February 5, 2015, CW1 informed Complainant that only he had special privileges to use the MUZE system.2 See ROI at pg. 175. Complainant stated that she was promised on February 6, 2015, that she would be cross-trained, and was not. See ROI at pgs. 177-178.
On March 11, 2015, Complainant asked CW1 for one of the new razors, and he did not provide one. See ROI at pg. 178. On March 16, 2015, Complainant greeted CW1, and stated that there was a patient. She alleged that he became angry and responded, "I don't want you to ever address me that way again." Complainant stated that when she started walking away from CW1, he followed her and proceeded to yell at her. See ROI at pgs. 181-182.
On March 17, 2015, CW1 left a note on the computer stating, "Locked do not use." See ROI at pg. 188. Later that day, Complainant spoke with another coworker (CW2) (Caucasian, male), and when she stated that she wanted to learn new things in the Stress Lab, he sarcastically responded, "All that's needed back here is for you to have a VA badge and a nuclear badge." See ROI at pgs. 191-192.
On March 18, 2015, another technician had an order for an EKG. While Complainant was available to perform the EKG, CW1 acted as if Complainant was not capable of performing one. See ROI at pgs. 197-198. On March 19, 2015, Complainant was performing an EKG, and informed CW1 that there was a problem with one of the cables. He responded that there was nothing wrong with the cable, and that it was "probably the way you perform them." Complainant overheard CW1 talking to two coworkers about the situation. See ROI at pgs. 198-199. On March 23, 2015, Complainant noticed that one of the computers was not working. She went to use another computer, and did not mention the issue with the first computer. CW1 asked Complainant if she was having issues with that computer; CW1 went to look at the computer, and returned to state that a cable was unplugged. Complainant stated that this had happened a number of times, prior to this incident. See ROI at pgs. 201-203.
On March 26, 2015, another coworker (CW3) informed Complainant that one of her EKGs was crumpled up in the garbage can. Complainant was saving the EKG to discuss with a doctor. CW3 stated that CW1 told him about the EKG in the trash. Complainant stated that, on March 27, 2015, S1 instructed her not to leave EKGs around, and to shred them unless she planned to keep them for educational purposes. See ROI at pgs. 207-209.
In April 2015, CW1 asked Complainant about his stack of EKGs, and accused her of taking them. Also in April 2015, S1 and CW2 removed Complainant's ability to use MUZE. See ROI at pgs. 213-215. On April 15, 2015, Complainant asked CW1 if he was going to work in the Stress Lab or in the EKG room that day. See ROI at pg. 217. CW1 responded that he would be in the Stress Lab that day, and stated to CW2, "I don't want [Complainant] using my room because she leaves it all dirty." See ROI at pg. 222. On April 20, 2015, Complainant alleged that she had to do an unfair number of EKGs because she was the only technician available. See ROI at pg. 224.
On April 30, 2015, a nurse did a presentation on the proper way to place electrodes at a department meeting. Complainant stated that she found this demeaning because the nurse was speaking about Complainant's electrodes. See ROI at pgs. 225-226. Complainant stated that she learned that CW1 accused her of not completing her share of EKGs, which led to CW2 following Complainant as she worked on May 14, 2015. See ROI at pg. 227.
On an unspecified date, Complainant noticed that one of her lab coat sleeves was taped shorter than the other. She went to the linen department and was informed that they did not do that. When she returned, Complainant overheard CW1 ask CW3 to ask Complainant if she fixed her sleeve. CW3 then asked Complainant if she got her sleeve situation handled, and she responded that she did, and heard CW1 laughing. See ROI at pg. 228. Additionally, Complainant stated that she found her radioactivity name tag on the floor. See ROI at pg. 255.
On August 5, 2015, Complainant was using the MUZE computer when CW1 asked to use it. She left and went to a room across the hall, and after CW1 finished, she returned to find the computer cables unplugged. See ROI at pg. 244. Complainant asked CW2 to plug things back together. See ROI at pg. 250. Complainant also alleged that CW1 does not perform EKGs past 3:30 p.m. See ROI at pg. 259.
On October 3, 2015, Complainant stated that CW1 deliberately bumped into her, and did not say "excuse me," or "I am sorry." See ROI at pg. 266. On an unspecified date in October 2015, Complainant asked CW2 if CW1 could open a locked cabinet; CW1 claimed that he did not have a key. See ROI at pg. 593. On October 20, 2015, Complainant was delayed in going on her lunch break. When she returned, S1 informed Complainant that CW1 stated that Complainant did not inform anyone that she would be returning a little later than usual. S1 then suggested that Complainant write on the calendar whenever she takes a late lunch. See ROI at pg. 79.
On October 29, 2015, Complainant found a large rubber spider at the Respiratory Hygiene Station. On October 30, 2015, S1 facilitated a visit from the Infection Control Department, based upon Complainant's report of a roach. Complainant alleged that CW1 and CW2 made her the "butt" of the joke for reporting the roach. Also on October 30, 2015, Complainant approached CW1 to inform him that someone was looking for him. CW1 responded, "Who is they?!" without looking at Complainant. See ROI at pgs. 79-80.
On November 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her when it subjected her to harassment on the bases of national origin (Hispanic) and sex (female) when:
1. On December 19, 2014, and January 15, 2015, CW1 opposed Complainant's use of gloves, refused to allow her to keep gloves in the exam room, and hid gloves from her;
2. From February 1-28, 2015, Complainant was assigned more EKG procedures than her co-workers;
3. On February 5, 2015, CW1 left Complainant a note on her keyboard that stated, "Is it okay to take over someone's space w/o asking?";
4. On February 5, 2015, CW1 informed Complainant that only he had special privileges to use the MUZE software;
5. On February 6, 2015, Complainant was promised that she would be cross-trained in the Stress Lab, but was not subsequently trained;
6. On March 11, 2015, CW1 withheld razors from Complainant's use in the exam room;
7. On March 16, 2015, CW1 yelled aggressively at Complainant, and attempted to make her look incompetent and inefficient;
8. On March 17, 2015, CW1 placed a note on the computer in exam room #2, which stated, "Locked, do not use";
9. On March 17, 2015, a co-worker allegedly mocked Complainant when stating, "Oh, all that is needed to work back here is a VA badge and a nuclear badge";
10. On March 18, 2015, CW1 "misrepresented and demeaned" Complainant when he asked for "outside" help in performing EKGs, when she was available;
11. On March 19, 2015, CW1 spoke "ill" of Complainant behind her back, and maligned her work to other staff in a demeaning and defamatory way;
12. On March 23, 2015, CW1 allegedly sabotaged the computer used by Complainant by unplugging it;
13. On unspecified dates in 2015, CW1 allegedly made unfounded complaints that Complainant kept the exam room dirty loudly for others to hear, completed Complainant's EKGs for female patients without her permission, used a double standard when it came to shaving patients, ignored Complainant's questions or offered vague answers, and misconstrued facts regarding changes made to the EKG machine templates;
14. On March 26, 2015, CW1 removed Complainant's EKG graph from the workstation, and accused her of inappropriately crumbling it and placing it in the trash;
15. On March 27, 2015, Complainant was instructed by S1 to shred and remove EKGs immediately, when CW1 and other technicians did not have to;
16. In April 2015, CW1 repeatedly switched the box of medium-sized gloves with a box of XL-sized gloves;
17. In April 2015, CW1 accused Complainant of taking his EKGs;
18. In April 2015, Complainant's ability to use MUZE was removed;
19. On April 15, 2015, CW1 mocked, mimicked, and was sarcastic when Complainant asked where he would be working that morning;
20. On April 15, 2015, CW1 voiced unfounded accusations regarding Complainant's work performance and cleanliness in front of other staff and patients, suggesting that she was not able to use his room;
21. On April 20, 2015, Complainant was assigned an unfair number of EKGs to complete;
22. On April 30, 2015, Complainant was singled out and labeled as not knowing how to place electrodes during a department meeting;
23. On May 14, 2015, Complainant was accused of not completing her share of EKGs;
24. From July 27, 2015, through August 4, 2015, Complainant was subject to the following pranks: her lab coat was shortened with dermal tape, her radioactivity name tag badge was found under the floor cabinet, the open glove box was removed from the exam room and placed back on the supply shelf, the monitor cable for the workstation computer was unscrewed, the medium-sized gloves were removed and hidden in a supply room cabinet and replaced with XL-sized gloves, CW1 left the room and cables unkempt, and CW1 refused to sign off MUZE or Windows, which prevented other staff members from using them;
25. On August 5, 2015, after using the MUZE system, CW1 unplugged both the computer and monitor;
26. On August 5, 2015, Complainant became aware that all the medium-sized gloves were missing again;
27. On August 5, 2015, CW1 did not perform EKGs after 3:30 p.m.;
28. On September 16, 2015, the medium-sized gloves were missing again;
29. On September 17, 2015, Complainant found the computers unplugged and the cables mixed, which prevented their use by the staff;
30. On October 3, 2015, CW1 deliberately bumped into Complainant without saying "excuse me," or apologizing;
31. In October 2015, CW1 refused to open a locked cabinet, despite previously having the key to open it;
32. On October 20, 2015, S1 confronted and accused Complainant of not following protocol after CW1 falsely reported that she failed to inform anyone that she was taking a late lunch, and as a result, S1 suggested that Complainant record on the calendar when she leaves, despite no one else having to do so;
33. On October 29, 2015, Complainant found a large rubber spider on the Respiratory Hygiene Station;
34. On October 30, 2015, Complainant was made the "butt" of a joke for previously reporting the pest problem concerning the Respiratory Hygiene Station; and
35. On October 30, 2015, CW1 responded rudely to Complainant after she informed him that someone was looking for him.
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). In accordance with Complainant's request, 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 based on her national origin and sex as alleged.
The Agency found that Complainant had named witnesses, but that they were not able to corroborate her allegations. However, the Agency assumed Complainant's allegations as true, and found that they did not rise to the level of actionable harassment. The Agency noted that most of the complained of conduct was by CW1, but that both parties seemed to contribute to the conflict. The Agency concluded that a reasonable person would not find this environment so severe or pervasive that it altered the conditions of Complainant's employment.
Complainant filed the instant appeal, and submitted a brief in support of her appeal. The Agency provided a response on November 28, 2016.
CONTENTIONS ON APPEAL
Complainant requests that the Commission consider her appeal to be timely. She stated that she was out of town, and not sure when the Agency's final decision was delivered. Complainant stated that, when she received it, she "desperately tried to obtain Form 573" to file her appeal.
On appeal, Complainant alleges that CW1, CW2, and S1 lied in their affidavits. Complainant also states that another coworker (CW4) attested that CW1 was "anti-female," and that she also was harassed by CW1. Additionally, Complainant states that another coworker (CW5) was questioned, but her statement was not included in the investigation. She states that CW5 was a witness, and harassed by CW1. Complainant also denies that she contributed to the conflict with CW1.
The Agency argues that Complainant has not submitted evidence to reflect discriminatory animus by any management official. Additionally, the Agency states that Complainant cannot successfully rely on CW4, who stated that CW1 was "a bit anti-female," because CW4 also denied any first-hand knowledge of CW1 treating Complainant in a hostile or discriminatory manner. The Agency requests that the Commission affirm its final decision finding that Complainant has not shown that she was discriminated against when she was allegedly subjected to harassment based on her national origin and sex.
ANALYSIS AND FINDINGS
Standard of Review
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").
Timeliness of Appeal
As an initial matter, we will address the timeliness of Complainant's appeal. Complainant concedes that her appeal may be untimely. She states that she was out of town for approximately one and a half weeks, and does not know when the Agency's final decision was delivered. We find that the record does not contain any evidence showing proof of delivery of the final decision, or even a certificate of mailing showing the date that the Agency mailed it. Even if the Agency mailed the final decision on August 11, 2016, Complainant's appeal would only be three (3) days late. However, since there is no proof of the mailing or delivery of the final decision, we will consider Complainant's appeal to be timely.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (Mar. 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
The record shows that some of the complained of conduct did not occur as Complainant described. With regard to incident 30, a witness (W1) stated that she did not recall CW1 bumping into Complainant, and that neither of them made any comments at the time to make it "a memorable event." See ROI at pg. 614. For Complainant's allegation that CW1 repeatedly unplugged the computer cables, S1 stated that she called for IT support, who inspected the situation and found that the wires were "all very loose." See ROI at pgs. 421-422. CW2 added that he had experienced times when he unintentionally pulled out some cords. See ROI at pg. 310.
In response to the allegations that CW1 intentionally hid Complainant's gloves, CW1 stated that the shared EKG room was very small, and that he would put the gloves away when he cleaned. See ROI at pgs. 344-345. S1 stated that there are "many very compulsive people" who will clean when they see that a room is untidy. See ROI at pg. 400. Additionally, S1 stated that the medium-sized gloves were a popular size, and that she believed that other people would take the boxes when they saw them. See ROI at pg. 446. Further, S1 stated that Complainant felt that CW1 was sabotaging her, and when other people would tell Complainant that they were responsible for certain incidents, she would not believe them. See ROI at pgs. 416-417.
Even assuming, arguendo, that the events occurred as Complainant described and were unwanted, she has not shown that the conduct occurred because of her protected classes. When asked how some of these incidents were connected to her sex, Complainant did not state why she believed the incidents occurred because of her sex, or national origin. See ROI at pgs.165, 169, and 225. While CW4 stated that she believed that CW1 was a "bit anti-female," she also stated that she did not believe that Complainant's sex made her a "target." Additionally, CW4 stated that CW1 made "pretty mean" remarks about Complainant, but CW4 attributed that to Complainant not working as fast as CW1 would like. See ROI at pg. 621.
The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even if CW1 and CW2 were rude, mocked Complainant, and made unfounded accusations about her work, she has not shown that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on her national origin or sex.
On appeal, Complainant repeatedly alleges that CW1, CW2, and S1 lied. Unfortunately, Complainant did not request a hearing before an EEOC AJ, and, as a result we do not have the benefit of an AJ's credibility determinations of the witnesses in this case. Additionally, the record shows that CW5 was out of the office, and did not provide a written statement for the instant complaint. See ROI at pg. 627. Had Complainant requested a hearing, CW5 could have testified as a witness. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a "he said, she said" situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, Complainant has failed to establish that she was subjected to harassment based on her national origin and sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant has not shown that she was discriminated against when she was allegedly subjected to harassment based on her national origin and sex.
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 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
_9/14/18_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The MUZE (also referred to as MUSE in the record) system is a data collection system used for EKG compilation and retrieval. See ROI at pg. 346.
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