Merilyn W.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 9, 2018

0120162140 (E.E.O.C. May. 9, 2018)

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

Merilyn W.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120162140

Hearing No. 510-2016-00067X

Agency No. 200I-0573-2015103570

DECISION

On June 14, 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
May 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical
Support Assistant, GS-6, with the Veterans Affairs Health Care System (VAHCS) located in Lake
City, Florida. On June 17, 2015, Complainant filed an EEO complaint alleging that she was
subjected to harassment (sexual) based on sex (female) when: (1) on May 14, 2015, the Patient
Service Assistant (C1), her co-worker, grabbed her around the waist and stated, “you know that I

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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want you,” or words to that effect; and (2) on May 14, 2015, C1 grabbed her in the elevator and
told her to give him a hug and stated, “I want to give it to you,” or words to that effect.

After 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 EEOC Administrative Judge.
Complainant timely requested a hearing but subsequently withdrew her request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that while Complainant established a prima facie case of sexual harassment, she failed to show
that the Agency was legally liable because it had taken prompt, appropriate and effective corrective
action calculated to stop the harassment.

FACTUAL BACKGROUND

Complainant testified as follows: On May 14, 2015 she was walking from the cafeteria back to
her work station and as she passed C1 he asked her why she had not called him. Complainant
responded to C1 that she was married and was not going to call him. C1 then approached her and
put his arm around her waist and pulled her close saying “he wanted her” and kissed her on the
forehead. Complainant stated to C1 once again that she was married and not to touch her. C1
continued to walk with Complainant following her into the elevator. While in the elevator C1
asked her for a hug and when she reached her arm out he then stated: “no I want a front hug” and
approached her saying “I want to give it to you.” Complainant related that after the incident she
felt horrible and disgusted and called her supervisor (S1). S1 called the VAHCS police and
Complainant gave the police a statement about what had occurred.

The following morning, C1’s supervisor (S2) took his statement and advised him not to have any
contact with Complainant. Approximately two weeks later, Complainant was notified that
management was conducting a fact-finding investigation into the incident, however she did not
know if any disciplinary action was ever taken against C1.

Complainant explained she is very uncomfortable at work and walks everywhere with a co-worker.
Complainant stated she is unaware of other complaints against C1. Complainant also explained
that on one occasion, she volunteered to work a shift in the Eye Clinic (which was not far from
C1’s station) 2 to maintain her professionalism on the job but suffered from anxiety especially
when she heard his voice over the pager system. Complainant maintained she had been the victim
of sexual harassment and management had not handled the situation in a professional manner,
instead making her seem to be the guilty party. Complainant noted that she is aware of the
Agency’s anti-harassment policies through yearly online training.

S2 testifies that she learned of the events on May 14, 2015. She contacted Complainant and C1
on the same day for statements, and the EEO office for assistance. S2 stated that C1 provided a
statement but Complainant refused. She further stated that after she talked with the EEO office,
she was instructed to conduct a fact-finding investigation. She asserted that during the fact-finding

2 The record shows that she was not able to see C1 while working in this location.
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investigation, C1 told her that he and Complainant had a mutual friendship and that they both
laughed, talked, and hugged each other in the past. S2 noted that C1 denied any of the behavior,
other than hugging Complainant when he got off the elevator. S2 stated that she advised C1 that
hugging Complainant was inappropriate and gave him a stay away order. In addition, S2 stated
that on May 29, 2015, she learned that Complainant had volunteered to work for one shift in the
Eye Clinic, which was close to C1’s work area. S2 noted that she asked S1 why she allowed
Complainant to work near C1 when he was given a stay away order. According to S2, S1 explained
that Complainant volunteered to work the shift and stated that it was not a problem. S2 stated that
the fact-finding concluded on June 5, 2015, and a determination was made that both parties
engaged in mutual communications and conduct. However, C1 was issued an Admonishment on
August 26, 2015 for hugging Complainant. He was also instructed to take Prevention of Sexual
Harassment Training, which he completed on May 26, 2015. S2 further stated that Complainant
has not reported any further incidents.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Hostile environment sexual harassment is established by showing: (1) complainant’s membership
in a protected class; (2) complainant was subjected to unwelcome verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4) the harassment was
sufficiently severe or pervasive to affect a term or condition of employment, and/or that the
harassment had the purpose or effect of unreasonably interfering with his or her work performance
and/or of creating an intimidating, hostile, or offensive work environment and (5) that liability is
imputed to management because it failed to take immediate and appropriate corrective action
although it was aware of the harassment.3 See McGinnis v. Sec'y of Defense, EEOC Appeal No.
01902760 (Nov.15, 1990).

The Commission’s regulations require an employer to take “immediate and appropriate” corrective
action once it knows or has reason to know that sexual harassment has occurred. See 29 C.F.R.
§ 1604.11(e). The Commission has held that appropriate remedial action depends on the specific
facts of the case; more specifically, on the severity and persistence of the harassment and the
effectiveness of any initial remedial steps. Taylor v. Dept. of the Air Force, EEOC Request No.
05920194 (July 8, 1992).

3 Element 5 is required when the alleged harasser is a co-worker or other non-supervisory
employee.
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In this case, we assume that Complainant established a prima facie case of sexual harassment.
Upon review of the record, we agree with the Agency in concluding that the record shows that
once notified, management took immediate action, calculated to end the harassment (i.e., issued
C1 a stay away order; conducted a fact-finding investigation to determine if further action was
necessary; issued C1 an Admonishment; and required C1 to undergo sexual harassment training).
The record shows that Complainant reported no further incidents. We note that on appeal,
Complainant asserts (without corroborating evidence) for the first time that the harassment
continued. However, we find these untimely assertions insufficient to prove by a preponderance
of the evidence that the harassment continued beyond May 14, 2015. Given these facts, we find
that the Agency took appropriate steps to end the harassment and avoid liability.

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.

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.
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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

May 9, 2018
Date