[Redacted], Antoinette L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020004738 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antoinette L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2020004738 Agency No. 2003-589W-2018101969 DECISION On May 11, 2020, 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 April 9, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) at the Agency’s Robert Dole VA Medical Center (VAMC) in Wichita, Kansas. On April 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity (prior EEO complaints in 2015 and 2016) when, on November 28, 2017, a Nurse Manager (M1) and two other medical employees were in the hallway talking about Complainant and M1 stated to Complainant, “We were talking about your lover . . . the one you let touch inside your legs . . . the one you let up in that pussy.” Complainant alleged sexual harassment, stating that M1 alleged that then-President Trump was Complainant’s lover. Complainant noted that M1 was a responsible management official in her prior EEO complaint. 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. 2020004738 2 Complainant stated that the Agency conducted a fact-finding investigation but then returned M1 to management on February 6, 2018. Complainant stated that she could not return to the same department thereafter.2 On November 28, 2017, Complainant reported the alleged harassment to management and, subsequently, management conducted an internal fact-finding investigation (FFI). During the FFI, M1 stated that she and two employees were discussing politics including then-President Trump and she stated, “this is the same person that said grab them in the pussy.” M1 denied stating what Complainant alleged. She stated that it was not directed at Complainant and that Complainant walked by as they were conversing and asked, “what did you say?” M1 also stated that she had “shadowed” Complainant a week earlier based on coworker complaints and she figured that Complainant knew a write-up was forthcoming which might have motivated her to file against M1 first. The two witnesses stated that they did not fully recall the incident, but Complainant was not included in the conversation until she questioned what M1 stated. The witnesses stated that they were talking about political news and M1’s statements were joking. The FFI found that M1’s use of vulgar language was improper, but her language was not directed at Complainant. It found that M1’s language did not appear to be a pattern of behavior and the risk of re-offense was low. The record shows the Agency issued M1 a letter, dated November 30, 2017, placing her on “authorized absence,” pending the outcome of the internal FFI. Upon completion of the FFI, the Agency issued M1 a written reprimand dated February 5, 2018, citing “use of obscene language in the presence of subordinate employees” to remain in her official personnel folder for up to three years. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency wrongfully terminated her employment in reprisal for the instant complaint. She stated that she filed an appeal with the Merit Systems Protection Board (MSPB), but it did not accept her appeal due to inaccurate submissions from Human Resources. In opposition, the Agency stated that it removed Complainant from employment in April 2019 for violation of a May 2018 last chance agreement, but that removal is not the accepted claim for the instant complaint. 2 The record shows, effective February 23, 2018, the Agency reassigned Complainant to another department per her February 7, 2018 request. 2020004738 3 The Agency stated that Complainant did not file an EEO complaint regarding her termination and acknowledged that MSPB dismissed the matter for lack of jurisdiction due to the nature of Complainant’s nurse appointment.3 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”). As an initial matter, we clarify that the issue before us is Complainant’s claim of discriminatory harassment, not the removal as Complainant asserted on appeal. Harassment To establish a claim of hostile work environment harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on her sex or retaliatory animus based on her prior EEO activity. Complainant alleged that her Nurse Manager, M1, made obscene and vulgar statements to her in front of two witnesses. Complainant reported the allegation to management and it promptly conducted an internal harassment fact-finding investigation. During the investigation, M1 and the two witnesses stated that they were discussing then-President Trump when Complainant walked by and questioned what M1 said. M1 and the witnesses stated that M1’s language was used jokingly and not directed at Complainant. 3 The record contains an MSPB initial decision regarding Complainant’s removal, with docket no. DE-0714-19-0276-I-1. 2020004738 4 Specifically, M1 stated that she referred to Trump and stated, “this is the same person that said grab them in the pussy.” The Agency removed M1 from work pending its internal investigation and, after the investigation, determined her language was obscene but not directed at Complainant. The Agency returned M1 to her department a couple of months later. Two weeks later, the Agency reassigned Complainant to another department at her request. Also, the Agency issued a written reprimand regarding obscene language to place in M1’s personnel file for up to three years. We find that Complainant failed to establish harassment based on discriminatory motives. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020004738 5 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 8, 2021 Date