[Redacted], Charlene S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2021000262 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000262 Hearing No. 410-2017-00466 Agency No. 200I-0534-2016105121 DECISION 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 September 30, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Certified Nurse Assistant, GS-5, at the Agency’s VA Medical Center in Charleston, South Carolina. On December 13, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency subjected her to a hostile work environment based on race (Black), sex (female), and in reprisal for prior protected EEO activity (instant complaint) when: 1. on August 16, 2016, Complainant’s co-worker (CW1), another nurse, kicked Complainant in the buttocks; 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. 2021000262 2 2. Complainant’s Supervisor (S1) failed to respond to Complainant’s request for reassignment that was submitted on or about August 28, 2016; and 3. on or about August 30, 2016, No Contact Orders instructing Complainant and CW1 to stay away from each other were rescinded. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On September 29, 2020, the AJ issued a decision by summary judgment finding no discrimination.2 On September 30, 2020, the Agency issued its final order implementing the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through her representative, argues that the AJ improperly issued a decision by summary judgment. In pertinent part, Complainant asserts that discovery was incomplete, and the AJ issued a decision by summary judgment without providing any notice. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. Preliminary Issues - Development of Record and Notice of Summary Judgment As an initial matter, we address Complainant’s argument that the AJ failed to provide notice prior to issuing a decision by summary judgment. We note that before issuing the decision, the AJ issued a July 21, 2020 order which scheduled an August 4, 2020 teleconference for the parties to “discuss in specific detail” the claims at issue and whether any additional information was necessary to proceed with the adjudication of this case. 2 The record indicates that this appeal was reassigned on November 26, 2019, to the AJ who issued the summary judgment decision at issue. 2021000262 3 Specifically, the AJ provided both parties the opportunity to submit additional evidence (affidavits, declarations, or any other relevant documents not included in the report of investigation) no later than three days before the scheduled August 4, 2020 teleconference for discussion, even though discovery on the claims concluded on June 25, 2018.3 The July 21, 2020 order further provided that following the August 4, 2020 teleconference, the AJ would “issue an Order concerning the further adjudication of this complaint.” Thereafter, the AJ determined that, based on the record and discussions held during the August 4, 2020 teleconference, there were no genuine issues of material fact and issued a decision by summary judgment on September 29, 2020. Our review of the record reflects that the investigative record was complete. There is no indication that Complainant submitted additional evidence during the August 4, 2020 teleconference.4 Consequently, Complainant cannot argue on appeal that the investigative record is incomplete given that Complainant had the opportunity to supplement the record before the AJ but declined to do so. Complainant is correct that EEOC regulations provide that if an AJ determines on their own initiative that facts are not in genuine dispute, they may, after giving notice to the parties and providing them an opportunity to respond in writing, issue a decision by summary judgment. See 29 C.F.R. § 1614.109(g)(3). Here, it appears the AJ failed to fully comply with these requirements. However, under the particular circumstances of this case, we conclude this error was harmless. The AJ clearly indicated in the July 21, 2020 order that the purpose of the August 4, 2020 teleconference was to have a detailed discussion to determine: (a) the claims at issue and (b) to determine whether the record had been adequately developed. In other words, the purpose of the August 4, 2020 teleconference was to determine whether there were any genuine issues of material fact, and the AJ specifically noted in the July 2020 order that she would “issue an Order concerning the further adjudication of this complaint.” Finding no genuine issues of material fact were identified by the parties, the AJ issued a decision by summary judgment. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. However, even on appeal, Complainant has failed to meet this burden. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 3 The originally assigned AJ indicated, in an April 26, 2018 order on initial conference, deadlines, and record completion, that discovery would begin on May 16, 2018 and concluded on June 25, 2018. 4 The record only indicates that Complainant sought, on March 6, 2018, to reinstate claims the Agency previously dismissed. However, on December 3, 2019, the Agency and Complainant issued a joint statement indicating that there were no motions or pending matters and Complainant was no longer pursuing her motion for reconsideration regarding reinstating previously dismissed claims. 2021000262 4 Merits of Complainant’s Claims To establish a claim of hostile 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). In other words, 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 a protected basis - in this case, her race, sex or protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record indicates that on August 16, 2016, Complainant attempted to pass through a hallway where CW1 and two other nurses were present. Complainant asserted that she asked the nurses not to block the hallway with their medicine carts, and with her back turned, CW1 kicked her in the butt. Complainant indicated that this incident was the second instance where CW1 had kicked her. However, Complainant acknowledged that she had not previously reported CW1’s prior actions to management. Nevertheless, Complainant reported the August 16, 2016 incident to the Chief Nurse, her first level supervisor (S1), and the Service Line Chief. During an August 17, 2016 meeting, Complainant informed S1 about the incident as well as CW1’s prior history of kicking her. Complainant also informed S1 that she felt “violated, uncomfortable, and embarrassed” around CW1. Complainant stated that S1 instructed her to write a Report of Contact and then S1 would follow up on the matter. Complainant also filed an August 20, 2016 report with the VA police department. In response, S1 testified that she reported Complainant’s complaint to her supervisors as well as human resources/labor relations and the EEO manager. Contrary to Complainant’s assertions, however, S1 stated that she made sure that Complainant was not assigned to the same work team as CW1; she made sure that neither employees worked the same days as much as possible; she instructed CW1 to stay out of Complainant’s work area and not make contact with her; and she and issued a No Contact Letter to both employees. 2021000262 5 The record indicates that Complainant and CW1 received a No Contact Order on August 25, 2016. The order prohibited Complainant and CW1 from personal contact or communication with each other including email, text messaging, calling, instant messaging, voice mail, or using third parties to communicate with each other. The order specified that it would be effective “until investigation of alleged harassment is complete and appropriate administrative action is determined.” Despite the No Contact order being in place, Complainant stated that on August 28, 2016, she verbally asked the Chief Nurse and S1 to reassign her, because she and CW1 were still allowed to work in the same area while the investigation was pending. Complainant stated that management reasoned that because CW1 passed medications on one side of the hall and Complainant performed patient care on the other side of the hall, it was acceptable for them to remain in the same unit. However, S1 testified that Complainant never requested reassignment because Complainant felt as though she was on the unit the longest and should not have to move. Additionally, the Chief Nurse indicated that her supervisor and the Associate Director of Patient Care Services, at the direction of Human Resources, decided not to reassign CW1 during the VA police investigation into the complaint. Documentation in the record reflects that the Human Resources Officer (HRO) indicated in a September 6, 2016 email that results of the investigation indicated that the kick did not cause harm, the action was done “in jest and was not forceful in nature.” Consequently, the HRO stated that after consulting with the Police and Service Line, “it was agreed upon that a strongly worded counseling would suffice in this situation.” Nevertheless, on August 31, 2016, Complainant stated that she contacted S1 and expressed her dissatisfaction that she and CW1 were not separated. On this day, Complainant stated that S1 informed her that CW1 would likely only receive a write-up in his record and the Chief Nurse informed Complainant that the investigation into this matter had closed. Complainant stated that she later learned in September 2016 that the No Contact Order had been rescinded on August 30, 2016. Thereafter, Complainant alleged that she endured harassing and intimidating behavior (whistling while in her presence) by CW1. In response to Complainant’s allegation that the No Contact Order had been rescinded, the record reflects that the terms of the No Contact Order were effective “until investigation of alleged harassment is complete and appropriate administrative action is determined.” Consequently, the No Contact Order was no longer effective on August 30, 2016, which was the same day that the Chief Nurse and S1 had a meeting with CW1 to discuss the findings of the investigation and determine appropriate action. The Chief Nurse stated that the VA police investigation was complete with no charges filed against CW1, but she gave CW1 a verbal warning for his behavior. The record supports that S1 also emailed CW1 in writing on August 30, 2016, reminding him of the verbal reprimand he received and informed him that a repeat of his August 2016 behavior or any violation of the code of conduct would result in termination. 2021000262 6 S1 further testified that she was informed by human resources that the No Contact Orders were no longer in effect once CW1 received his disciplinary action. S1 explained that to keep orders in effect after CW1 had been disciplined would appear to indicate that CW1 was continuing to be disciplined. Considering these claims, even if true, Complainant has not produced evidence that considerations of her race, sex, or retaliatory animus motivated management’s actions toward Complainant. Here, the record supports that management took immediate corrective action in response to Complainant’s harassment allegations once Complainant had notified management. Management issued a No Contact Order and made a concerted effort to avoid Complainant and CW1 from working together while an investigation was pending. Although Complainant was not satisfied with these actions, she cannot assert that these actions were not effective. Notably, Complainant stated that she requested a reassignment. However, aside from Complainant’s assertion, there is no other evidence to corroborate Complainant’s claim. S1 testified that Complainant never requested a reassignment. Additionally, the nature of the physical kick at issue was categorized throughout the investigation as a “joke,” an action made in “jest,” and one that did not cause physical harm. While CW1’s actions were inappropriate, there was no indication that CW1 exhibited these actions because of Complainant’s protected bases. Consequently, the nature of Complainant’s claim of harassment is of a type that arise out of typical workplace conflicts or mis-communications. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes only prohibit harassing behavior that is directed at an employee because of his or her protected bases. Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s race, sex, or prior protected EEO activity. Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2021000262 7 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. 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). 2021000262 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 April 5, 2022 Date