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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021003010 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003010 Agency No. 200J-0335-2020103341 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April 7, 2021, 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 her complaint, Complainant was employed as a Management Analyst, and a Finance Administrative Specialist at the Agency’s St. Paul Regional Office located in St. Paul, Minnesota. S1, the Support Services Division Chief, was her supervisor. S2, the Assistant Director was Complainant’s second-level supervisor. On July 6, 2020, she filed an EEO complaint alleging that she was discriminated against and subjected to a hostile work environment (sexual and non-sexual) based on sex (female) and in reprisal (prior EEO activity) when: 1. From June 24, 2019 to April 8, 2020, C1, the Supervisory Administrative Specialist and alleged harasser: a) leered at her and stood too close to her; b) accused her of having an affair with a coworker (CW1); 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. 2021003010 2 c) frequently made inappropriate, derogatory, and violent comments to her; and d) despite reporting her concerns, management did not take appropriate action to stop the harassment. 2. From April 13, 2020 to June 2, 2020, she was excluded from meetings; 3. From April 2020 to June 2020, S1 removed several duties from her position; and 4. On June 2, 2020, A1, the EEO Program Manager, tried to coerce her into delaying mediation.2 After its investigation into the complaint, 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. Complainant requested a final decision; therefore, in accordance with her request the Agency issued a final decision, which found that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged. This appeal followed. Regarding claim (1)(a), Complainant stated that on unspecified dates in 2019, she observed C1 looking at her chest on at least two occasions. Furthermore, on a weekly basis, he invaded her personal space by standing very close to her, and on June 24, 2019, to April 8, 2020, he stood, or sat, too close to her during weekly morning meetings and during conversations in the hallway areas. Regarding claim (1)(b), Complainant indicated that C1 did not directly accuse her of having an affair with a coworker, but she learned during the course of the Agency’s Fact Finding Investigation (FFI) that C1 told the Investigating Officer that he believed Complainant was having an affair with a coworker. Complainant noted that this accusation was false. Regarding claim (1)(c), Complainant stated that from June 24, 2019 to April 8, 2020, C1 made vulgar, obscene comments to her and other employees on a weekly or daily basis. Once when Complainant told him that she was repulsed by a comment, she alleged that he told her, “If you tell anyone, I’ll kill you.” According to Complainant, on April 6, 2020, C1 told her that “there are too many redheads in the world.” She also noted that he frequently called her a “redheaded stepchild.” On other occasions, C1 told her that she needed a “good ole country ass whooping.” Complainant perceived all these comments to be a threat. 2 Complainant also raised two additional claims that were dismissed by the Agency on the grounds that they did not state a claim. These claims were: (a) the facility did not conduct the internal investigation into her allegations of harassment within their own policies and procedures; and (b) there was a violation of Freedom of Information Act when management refused to release requested information testimony given by coworkers. Complainant did not contest the dismissal of these matters on appeal; therefore, they will not be addressed further in this decision. 2021003010 3 Complainant stated that she did not report these incidents to management until April 6, 2020, because she believed that C1, S1, and A1 all had close work relationships and friendships. Complainant acknowledged that witnesses would not have heard C1 make any offensive comments as they occurred in private while she was either in C1’s office or during text or Facebook messages that C1 sent to her. Complainant believed that C1, through his actions and obscene comments, was trying to exert his dominance over her because he perceived her to be an “attractive female,” and because he was attempting to “groom” her for a future sexual relationship. Complainant stated that while many employees found C1’s comments to be just a “personality issue,” she found his comments highly disturbing and upsetting, and she began to fear for her personal safety and worried that C1’s behavior would further escalate. According to the Agency, while Complainant and C1 worked together on assignments, he did not have a supervisorial relationship to Complainant. The Agency also noted that Complainant first reported her concerns regarding C1 to S1 on April 6, 2020. On April 7, 2020, S1 issued a No Contact Order to C1 and reported Complainant’s allegations to Human Resources and the Director’s office for further action. HR1, the Supervisory Human Resources Specialist, stated that Complainant contacted her on April 7, 2020, based on S1’s referral. HR1 obtained details from Complainant regarding her allegations against C1. Subsequently, HR1 ordered an FFI and informed the Regional Office Executive Director (D1), of Complainant’s allegations. HR1 informed Complainant of management’s response, to include issuing C1 a No Contact Order and ordering the FFI. Additionally, HR1 provided information to Complainant regarding the Agency’s Employee Assistance Program. On April 8, 2020, the Agency appointed two Assistant Division Chiefs to conduct the investigation. The FFI took place from April 2020 to June 3, 2020. The two Assistant Division Chiefs interviewed 25 non-management witnesses and three management witnesses regarding C1’s alleged sexual and non-sexual harassment. The FFI report was issued on June 3, 2020, and it found that based on the totality of witness statements, C1 used “insulting, disrespectful, and obscene” language at the workplace. The report found that C1 also concealed information regarding an earlier criminal conviction of stalking, and that C1 was not candid in his responses regarding the allegations at issue. Specifically, the report found that C1 lied to investigators by trying to deflect blame on Complainant by alleging that she was “promiscuous” and had “asked for that type of treatment.” The report further found that Complainant’s allegations of sexual and non-sexual harassment were supported solely by her statements. Of the 28 witnesses interviewed, none provided statements that corroborated Complainant’s allegations that C1 subjected her to sexual and non- sexual harassment. The report did note that C1 was not a credible witness because he had a 2005 criminal conviction for stalking. On June 5, 2020, the Agency issued C1 a Notice of Proposed Removal from federal employment. On June 12, 2020, he resigned from his position with the Agency. 2021003010 4 As part of the subsequent EEO investigation, 14 non-management witnesses provided statements. Twelve of them claimed they did not witness C1 make any offensive comment or statement to Complainant. One witness, CW1, stated he did not overhear any inappropriate comments, nor did he witness any inappropriate conduct; however, he recalled that on one occasion, Complainant informed him via text message that C1 had made an offensive, sexual, comment to her. CW1 also stated that C1 used vulgar language when interacting with him, to include making statements like those as alleged by Complainant. A second witness, CW2, stated that he witnessed C1 engaged in crude humor with male and female employees; however, he was not offended by it because it was often made in the context of mutual, jocular discussions, recalling prior military experiences. He stated that Complainant, C1, and himself would share stories from their Army career, about training and experiences on deployment. He felt that an outsider might think that their conversation was crude or inappropriate.3 Claim (2) According to management testimony and documentation contained in the record, due to the facility’s No Contact Order issued to C1, and a civil restraining order obtained by Complainant against C1, management determined that both C1 and Complainant could not attend meetings together. Because C1 was responsible for specific issues that were discussed in the meetings, S2 allowed him to continue to attending meetings. Claim (3) S1 stated that management did not change the duties assigned to Complainant. Due to Complainant’s restraining order against C1, and the No Contact Order issued by management, C1 was not permitted to communicate with Complainant regarding work assignments. Management determined that a new process of communicating work assignments between Complainant and C1 was necessary. Management informed Complainant, and C1, that they could communicate scheduling issues through S1 or another manager as interlocutors. This arrangement was temporary and was in place from April 7, 2020 to June 2020. Claim (4) A1 stated that she did not attempt to coerce Complainant into delaying mediation. A1 maintained that she contacted Complainant to inform her that the FFI involving her case was complete and that the Agency believed the proposed administrative actions against C1 would most likely take about a month to complete. Unsure of the impact that all this would have on mediation, A1 stated that she told Complainant she was scheduling the mediation session for June 18, 2020. 3 C1 did not participate in the EEO investigation. 2021003010 5 On appeal, Complainant disputes the Agency’s assertion that C1 was not her supervisor. According to Complainant, on the occasions when S1 was out of the office, C1 would act as the Division Director. She cited three such occasions when this took place, i.e., December 26, 2019, February 7, 2020, and February 10, 2020. 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”). Claims 1(a) - 1(d): To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 2021003010 6 This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. The Agency found that it was likely that C1 made offensive, inappropriate comments of the nature described by Complainant in claims (1)(a) - (c), that C1’s conduct was sufficient to meet elements (2) and (3) of a sexual harassment claim as set forth above, and that a reasonable person could find this conduct to be sufficiently severe or pervasive enough to create an intolerably hostile work environment, i.e., element 4. Accordingly, the Agency found Complainant’s allegations occurred as stated, despite an absence of corroborating evidence, and it assumed Complainant showed that she was subjected to sexual harassment by C1. We concur in these determinations by the Agency. Like the Agency, however, we find that Complainant did not establish element 5 of the harassment claim because there is no basis for imputing liability to the employer.4 First, we note that there was no tangible employment action at issue here. Therefore, the Agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. The record indicates that the Agency had a policy that was communicated to its employees against sexual harassment which included the posting of notices and mandatory training sessions. Although Complainant stated that the sexual harassment first began on June 24, 2019, she did not report her concerns to management until April 6, 2020. Upon notification of her concerns, management immediately issued C1 a No Contact Order. On April 8, 2020, management and HR initiated a fact-finding investigation in which over thirty witnesses were interviewed over the course of a two-month period. During this time, C1 was not permitted to have any communication with Complainant. Due to COVID-19 concerns, as of mid-March 2020, Complainant and C1 were not physically located on the premises but, like all other employees, were on full-time telework status. Upon completion of the investigation on June 5, 2020, management issued C1 a Proposed Removal. C1, however, resigned from the Agency on June 12, 2020. We find that the Agency exercised reasonable care to prevent and correct promptly any harassing behavior; and that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. 4 Unlike the Agency, however, we find that the more stringent analysis for alleged supervisory harassment is more appropriate here based on the specific facts of this case. 2021003010 7 Contrary to claim 1(d), we find that once Complainant reported her concerns to management on April 6, 2020, the Agency took immediate, appropriate, and effective actions to stop the harassment and to effectively address Complainant’s allegations. Accordingly, we find that the Agency cannot be held liable for sexual or non-sexual harassment, or reprisal, in violation of Title VII. Claims 2 and 3: To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal for her prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions set forth in claims 2 and 3. We find no persuasive evidence of pretext. Prior to reporting her allegations, Complainant and C1 worked together on various matters, which required both direct contact and group interaction. After Complainant raised her claims to S1 and HR, the Agency issued a no contact order and initiated an investigation; moreover, Complainant obtained a no contact order from a state court. During the time immediately preceding the report through C1’s resignation, the contact had been and was largely virtual due to the coronavirus pandemic. Based on the existence of the administrative and judicial no contact orders, the Agency maintained that it was impossible to have both parties in the same meeting or on the same communication. Consequently, the Agency instituted a policy that any required communication and coordination be directed through S1 or another supervisor, but that, “No duties were taken away, but additional steps were put into the process to separate the communication.” 2021003010 8 According to the Agency, C1 had to attend certain meetings, during the investigatory period until his resignation, “because [he] supervised a finance team within our division where his responsibility was to assign work and ensure his employees completed it timely to achieve our mission of serving Veterans. Many of our meetings involve the assignment of work to employees; therefore, [his] presence was critical to achieving the mission of serving Veterans.” Management was required to determine whether the purpose of the meeting was about C1’s finance team, and the goals surrounding his team’s performance. If information in the meetings was determined to fit those characteristics, C1 would attend the meeting and Complainant would be briefed by her supervisor. Complainant was also provided a summary of the content of any meetings via skype, emails, or calls, and she was able to ask questions and clarify anything discussed. Furthermore, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), we find that Complainant’s claim of a hostile work environment must also fail with respect to claims 2 and 3. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the Agency’s actions regarding claims 2 and 3 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). Claim 4: The Commission’s long stated policy is that, “[n]othing said or done during attempts to resolve [a] complaint through ADR [Alternative Dispute Resolution] can be made the subject of an EEO complaint.” EEO-MD-110, at 3-9. Also, “an agency decision not to engage in ADR, or not to make ADR available for a particular case . . . cannot be made the subject of an EEO complaint.” Id.; see Shealey v. EEOC, EEOC Appeal No. 0120070356 (April 18, 2011). Consequently, we DISMISS this claim for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). CONCLUSION 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. 2021003010 9 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). 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. 2021003010 10 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 February 7, 2022 Date