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

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2020005414 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hulda P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005414 Agency No. SB104329 DECISION On September 25, 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 August 25, 2020, final decision (FAD) 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 with respect to the issue on appeal. BACKGROUND During the relevant time, Complainant worked as a Pharmacy Technician at the Agency’s Brockton Medical Center in Boston, Massachusetts. On September 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, she was subjected to a hostile work environment. In support of her claim of harassment, Complainant indicated that, in relevant part: 1. On or about November 8, 2019, Supervisor looked into Complainant’s car; and 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. 2020005414 2 2. On November 20, 2019, the Human Resource Specialist (HR Specialist) called her a “bully” and accused her of displaying bullying behavior toward Supervisor. The Agency accepted the complaint for investigation. The record revealed the follow information. On or about November 8, 2019, Complainant stated that she received an email that her Supervisor had peered into her car. Complainant filed a report; she stated that she filed the report because she did not know what happened. Record of Investigation (ROI) at 171, 360-61. Supervisor conceded that she looked in Complainant’s car. She reported that, on the day in question, Complainant was parked near her and that she had to walk around the back of Complainant’s vehicle to get to her vehicle. Supervisor said that, when she walked around the back of Complainant’s car, she looked into Complainant’s vehicle. ROI at 187. Chief of Pharmacy Services (Chief) stated that Supervisor reported that she noted that Complainant’s car had Georgia license plates and that Supervisor looked at the front plate, out of curiosity, to see if they were the same. Chief said that Supervisor did not give a reason other than curiosity to look at Complainant’s car. ROI at 276. Complainant said that she called and sent an email to Human Resource (HR) Specialist concerning Supervisor looking into her car because she was concerned about her safety. ROI at 171. Complainant alleged that HR Specialist yelled at her and accused her of being a “bully” because she was displaying bullying behavior toward Supervisor. ROI at 171. Complainant specified that HR Specialist’s statement about her being a bully were racially motivated, as the word “bully” reinforces the stereotype of Black individuals as aggressive. ROI at 172. HR Specialist confirmed that he and Complainant discussed the allegation of Supervisor looking into her car. HR Specialist said that he asked Complainant to explain how she felt that her safety was in jeopardy and that he reminded Complainant that that was not a crime. ROI at 260. HR Specialist alleged that Complainant could not provide him with a reasonable explanation that she feared for her safety. As such, HR Specialist stated that he “assertively informed her that [he] was at a loss of her filing such a frivolous complaint. [He] also asserted that this [had] the appearance of her engaging in bullying tactics against her supervisor.” ROI at 260. HR Specialist contended that he would have taken this position with anyone filing “this type of frivolous complaint.” ROI at 260. 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discriminatory harassment as alleged. 2020005414 3 The instant appeal followed. CONTENTIONS ON APPEAL Complainant specifies that she is only appealing the harassment relative to the two specific instances as outlined above. She points to the inconsistencies in Supervisor’s rationale as issues for the Commission to consider in its analysis.2 The Agency asserts that the alleged incidents neither rise to the level of harassment, nor are they tied to a protected class. 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 Chap. 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”). Harassment As to harassment, in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment.” To establish a claim of harassment, Complainant must show that: (1) she is a member of 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 protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s decision regarding the discrete claims listed in the FAD; as such, we need not address these claims in the instant decision. 2020005414 4 there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enf’t Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enf’t Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In the instant case, we find that neither Supervisor’s looking into Complainant’s car nor Complainant being called a “bully” by HR Specialist constitute harassment or unlawful retaliation. While Complainant is a member of protected classes, and she was the recipient of unwelcome conduct, in neither case has Complainant offered evidence that either Supervisor or HR Specialist conducted themselves as due to her protected classes. The Commission also finds no evidence, beyond Complainant’s supposition, that Supervisor’s or HR Specialist’s conduct was related to her EEO activity. While the Commission recognizes that Supervisor provided a number of conflicting rationales to various different people, there is no evidence that her conduct was due to race, as opposed to curiosity, aside from Complainant’s speculation. Outside evidence of animus, simple bad behavior does not, in and of itself, provide evidence of discrimination on the part of Supervisor or HR Specialist and Complainant has offered no evidence, aside from her assertions and suppositions. Mere assertions or conjecture that a statement or behavior is discriminatory is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019) Similarly, Complainant provides no evidence that HR Specialist made his comment out of discriminatory intent. HR Specialist stated that his comments were in response to Complainant’s filing a charge he found to be frivolous and that he would have had such a conversation with anyone who had made a charge in similar circumstances. To the extent that Complainant argues that the term “bully” is derivative of the stereotype of African Americans as aggressive, the Commission cannot agree. While the Commission has held that unambiguous racial epithets are consistent with racial harassment, Complainant has not shown that the term “bully” is a race- based derogatory term. See EEOC's Compliance Manual, Section 15 “Race and Color Discrimination,” No. 915.00 (Apr. 19, 2006). 2020005414 5 This singular instance, moreover, does not constitute such severity or frequency to rise to the level of harassment; Shalon C. v. Dep’t of Transp., EEOC App. No. 0120141603 (July 21, 2016) (where the Commission affirmed that when a complainant received demeaning comments by her trainers and coworkers, if not due to protected class, were not, in and of themselves, harassment). As Complainant has not presented evidence that would persuade the Commission to find that either Supervisor or HR Specialist’s conduct was due to her protected classes or in reprisal for prior protected EEO activity, we cannot find that the Agency subjected Complainant to harassment as alleged. 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 (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. 2020005414 6 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). 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. 2020005414 7 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 24, 2022 Date