[Redacted], Tomeka T., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 28, 2022Appeal No. 2020004558 (E.E.O.C. Feb. 28, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tomeka T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004558 Hearing No. 520-2019-00561X Agency No. 200H-06892018103823 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 13, 2020, final order 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. At the time of events giving rise to this complaint, Complainant worked as an Administrative Support Assistant at the Agency’s Connecticut Healthcare System in West Haven, Connecticut. On August 9, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment (sexual and non-sexual harassment) on the basis of sex (female) and in reprisal for prior protected EEO activity, when from March 2018 through May 2018, she was subjected to: a) offensive comments, stares, facial expressions, and gestures; b) inappropriate questions; c) complaints; d) scrutiny of completion of tasks; e) assignment of new duties; and f) emails about the completion of tasks. 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. 2020004558 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant did not oppose.2 The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ found that the Agency’s facts were accurate and consistent with the record, and undisputed by Complainant. Of the six incidents of alleged harassment specified in the Agency’s Motion for Summary Judgment, the AJ noted that two events were not properly before her because Complainant did not amend her complaint and they were not within the scope of her complaint. The AJ determined that two events, such as efforts to follow up on assignments, involved a supervisor’s efforts to manage duties and assignments of an employee, which were ordinary tribulations in an office environment, and do not constitute unlawful harassment because they were not severe or pervasive. In the remaining two incidents, Complainant alleged that her harasser looked at her as if she were a “piece of meat” and stated, “okay, okay,” while nodding his head; and he asked Complainant about the quantity of use of feminine products to determine how many to stock in the dispensers. The AJ found that, even if the events occurred as Complainant alleged, she failed to demonstrate that the behavior was severe or pervasive enough to create a discriminatory work environment. Moreover, the AJ stated that the Agency took remedial action once it learned of the unprofessional conduct by sending the alleged harasser to another campus, where he would not have contact with Complainant; issued him a formal letter of counseling; and required him to complete training. The AJ also noted that Complainant conceded that the harassment stopped around April 20, 2018. The AJ concluded that, therefore, the incidents did not change the employment conditions altogether into an abusive working environment. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that 2 On appeal, Complainant states that she was improperly represented by her union representative, who missed the deadline to file a response to the Agency’s Motion for Summary Judgment. However, the Commission’s regulations state that a complainant is responsible for proceeding with the complaint, whether or not she has designated a representative. 29 C.F.R. § 1614.605(e). 2020004558 3 an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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 she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute, and she did not identify any dispute of material facts on appeal. Through her representative, Complainant argues that the complained of actions “fall directly under the categories of harassment based upon sex and reprisal,”3 and that the alleged harasser’s explanations are the only evidence contrary to evidence presented by Complainant, “which includes witness testimony corroborating the inappropriate and harassing nature of his behavior.” Complainant Appeal Brief at 11. However, Complainant did not cite to any specific facts, nor show a genuine dispute based on the evidence, and we note that mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. den’d, EEOC Request No. 05A10914 (Oct. 1, 2001). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that the Agency subjected Complainant to harassment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 3 Complainant asserts that the alleged harasser returned and attempted to take disciplinary action against her and he continued to harass her through September 2019. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should she wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. 2020004558 4 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). 2020004558 5 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 February 28, 2022 Date Copy with citationCopy as parenthetical citation