[Redacted], Vernita L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 21, 2021Appeal No. 2020002609 (E.E.O.C. Sep. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vernita L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002609 Agency No. 200J-0583-2019103300 DECISION On March 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 4, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment and discrimination based on her protected classes and in reprisal for her protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, in Patient Care Services and Surgery at the Agency’s medical facility in Indianapolis, Indiana. On July 19, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of national origin (Hispanic),2 sex (female, sexual orientation),3 and reprisal for prior protected EEO activity when: 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. 2020002609 2 1. from April 2, 2019 until June 20, 2019, Complainant was forced to take leave; 2. on June 20, 2019, Complainant was constructively discharged from her position as a Registered Nurse; and 3. Complainant was subjected to harassment when: a. since 2014, coworkers have made sexual, gender, sexual orientation, and race- based comments about her; b. from April 2, 2019 until June 20, 2019, Complainant was forced to take leave; c. on April 30, 2019, Complainant was temporarily detailed and denied telework; d. on June 10, 2019, coworkers openly discussed her EEO complaint and Complainant was restricted from reporting it; e. since June 14, 2019, coworkers “shunned” and ignored her, as well as convinced new employees to avoid her; f. on June 18, 2019, Complainant’s renewed complaints to management were dismissed; and g. on June 20, 2019, Complainant was constructively discharged from her position as a Registered Nurse. The Agency accepted the complaint for investigation. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant named the following as the responsible management officials (RMO): her first line supervisor, the Operating Room Nurse Manager (RMO1) (Caucasian, female, engaged in prior EEO activity) and her second line supervisor, the Chief of Patient Care Services Surgery Nurse IV (RMO2) (Caucasian, female, engaged in prior EEO activity). 2 To the extent that Complainant is claiming “Hispanic” as a race, the Commission has consistently held that “Hispanic” is not a race category or racial classification. See Salais v. Dep't of the Army, EEOC Appeal No. 0120082383 (Sept. 22, 2008). 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020002609 3 Since 2012,4 Complainant asserted that her coworkers have made sexual, gender, sexual- orientation, and race-based comments about her. Complainant asserted that in April 2012, she complained of a coworker (CW1) to RMO1 but that nothing was done. However, during the investigation, Complainant acknowledged only reporting two incidents of harassment and not previously reporting the alleged 2012 incidents. The reported incidents occurred between February and April of 2019. On or about April 16, 2019, Complainant asserted that she informed RMO1 that coworkers had made harassing comments towards her. RMO1 notified RMO2 of the situation. RMO1 informed Complainant to reach out to the EEO office and requested details of the verbal assault so that an internal fact-finding could be initiated. RMO1 asserted that Complainant denied her help and said she wanted to handle the situation herself. Complainant also initially refused to identify what was said or by whom. RMO2 directed RMO1 to conduct a fact-finding. However, when Complainant refused help, RMO2 completed a Report of Contact and notified the EEO Office, Human Resources, and her chain of command that Complainant had alleged harassment by her coworkers but would not share what was said or by whom. RMO2 noted that prior to this report, Complainant had not submitted other allegations of harassment. On May 1, 2019, RMO2 temporarily detailed Complainant while a fact-finding investigation was conducted. RMO2 learned that Complainant’s allegations concerned an anesthesiologist and at least two nurses. The Agency determined that it was not feasible to reassign multiple employees from the Surgery Service. Accordingly, RMO2 temporarily detailed Complainant while the investigation was conducted. At no point was Complainant forced to take any leave. When Complainant was informed of the temporary detail, she requested to telework. RMO2 looked into a potential telework position but given Complainant’s position as a Registered Nurse, management did not have any possible telework assignments. On May 17, 2019, the fact-finding investigation was initiated. The report stated that there were three main incidents. In the first, Complainant asserted that on April 2 - 5, and 9 - 11, 2019, a female coworker (CW2) made statements such as: “Have you had a dick lately; what did you bring for lunch, a dick; and eat a dick.” Complainant asserted that there were at least two other female witnesses present during an April 11, 2019 incident. The witnesses denied having seen CW2 making such comments directly at Complainant. Both witnesses and CW2 asserted that the Operating Room teams did often engage in crude jokes and lewd gestures, but that it was in good nature. The witnesses noted that Complainant often joked that she should obtain compensation by reporting the jokes as sexual harassment. The witnesses stated that Complainant began making the jokes after the facility underwent a sexual harassment training about a year earlier. 4 The claims state 2014, but in the record, Complainant asserted that she made complaints starting in 2012. 2020002609 4 In a second incident, Complainant asserted that sometime in March 2019, a staff anesthesiologist (CW3) told her to “set the oxygen to 10 because you’re a 10 to me,” and “I missed you, did you miss me.” Complainant asserted that a witness was present. Both the witness and CW3 denied the incident and could not recall who Complainant was. CW3 asserted that he has never engaged in any sexual activity or sexual commentary with any Agency employee. Complainant alleged a third incident but did not describe when it occurred and only noted that housekeepers had made inappropriate comments at her. During the fact-finding, Complainant dropped the third incident. On May 30, 2019, RMO1 provided Complainant with the results of the investigation. Based on the investigation, the fact-finding team concluded that Complainant’s allegations of workplace and sexual harassment were not substantiated. On June 10, 2019, Complainant asserted that she learned of coworkers who were openly discussing her EEO complaint. Complainant stated that she was restricted from reporting it. RMO1 explained that she was informed by a subordinate employee that on June 10, 2019, an employee witnessed another nurse discussing Complainant’s situation in the Operating Room lounge. RMO immediately investigated the allegation and determined that there was a single non-supervisory employee who had initiated a conversation regarding Complainant’s circumstances, stating her belief that Complainant would be unhappy with the results. RMO1 explained that she verbally counseled the employee and ordered that employee to refrain from engaging in such behavior in the future. RMO1 asserted that she took quick and appropriate remedial action to ensure no further such behavior occurred. Complainant alleges that since June 14, 2019, Complainant’s coworkers “shunned” and ignored her, and then convinced new employees to avoid her. Complainant did not provide any evidence of specific instances to support her allegation. On June 18, 2019, Complainant asserted that her renewed complaints to management were dismissed. RMO1 asserted that Complainant made no new reports and she did not witness any such behavior. RMO2 was on scheduled annual leave in June 2019. On June 20, 2019, Complainant asserted that she was constructively discharged from her position as a Registered Nurse. RMO1 was on annual leave when she found out about Complainant’s resignation. RMO1 asserted that she was surprised and disappointed to learn of Complainant’s departure because she was an excellent nurse and hard worker. RMO2 asserted that no one forced Complainant to resign and that she was not subject to any adverse working conditions. RMO2 noted that the facility is a fast-paced environment but in no way hostile. RMO2 attempted to address Complainant’s concerns and was frustrated that the situation could not be resolved. 2020002609 5 CONTENTIONS ON APPEAL Complainant did not provide any appellate arguments.5 The Agency asserted that Complainant failed to provide any persuasive appellate arguments for overturning the FAD. The Agency provided a detailed appellate brief that essentially reiterated the FAD. The Agency requested the Commission to affirm the Agency’s decision. ANALYSIS AND FINDINGS Disparate Treatment - Claims 1, 3(b) and (c) Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In claims 1, 3(b) and 3(c), Complainant alleged that she was forced to take leave, temporarily detailed; and denied telework. The record does not indicate that Complainant was forced to take leave as she alleged. The Agency had temporarily detailed Complainant pending an investigation into Complainant’s harassment complaint. 5 We note that upon receipt of the Report of Investigation (ROI), Complainant mistakenly believed that she had received a copy of the Final Agency Decision (FAD). In this belief, she corresponded with the Agency’s EEO office to contest details in the ROI. However, she did not submit any appellate statements upon filing her current appeal. 2020002609 6 The Agency indicated that although Complainant was not very forthcoming with information, RMO2 learned that Complainant’s allegations concerned an anesthesiologist and at least two nurses. The Agency determined that it was not feasible to reassign multiple employees from the Surgery Service pending the investigation. Accordingly, RMO2 temporarily detailed Complainant while the investigation was conducted. There is no evidence that Complainant was required to take leave as she alleged. When Complainant was informed of the temporary detail, she requested to telework. However, when RMO2 looked into a potential telework position, given Complainant’s position as a Registered Nurse in the Surgical Services, management did not have any possible telework assignments. Therefore, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. Complainant has failed to show that reasons provided by the Agency, regarding the reassignment and decision to deny telework assignment, were pretextual. Therefore, we find that Complainant has not established that these actions constituted discrimination. Hostile Work Environment Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome conduct; (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. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). Complainant has demonstrated that she belongs to statutorily protected classes based on her national origin, sex, and prior protected EEO activity and that she was subjected to unwelcome conduct. Complainant asserted that the staff anesthesiologist (CW3) and a nurse (CW2) had discriminatorily made comments based on her statutorily protected classes of sex and sexual orientation in claim 3(a). 2020002609 7 She further asserted that coworkers openly discussed her EEO complaint and shunned her based on her protected EEO activity, and management failed to take action when she complained as alleged in claims 3(d), (e), and (f). Therefore, we must determine whether the harassment alleged affected a term or condition of her 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. In support of claim 3(a), Complainant described two events.6 Complainant asserted that in April 2019, CW2 made statements such as: “Have you had a dick lately; what did you bring for lunch, a dick; and eat a dick.” However, CW2 denied making the comments and purported witnesses did not support Complainant’s claim. In addition, Complainant claimed that sometime in March 2019, CW3 told her to “set the oxygen to 10 because you’re a 10 to me,” and “I missed you, did you miss me.” Again, CW3 denied making any such statement and Complainant’s purported witness had no knowledge of such events. Therefore, based on the instant record, we find that Complainant has not substantiated her claim that she was subjected to harassment based on her sex or sexual orientation. In claims 3 (d), (e), and (f), Complainant alleged that she was subjected to retaliatory harassment when management chose to do nothing when her coworkers openly discussed her EEO complaint; her coworkers shunned her; and her new complaints were dismissed by RMO1 and RMO2. Here, the record demonstrates that a coworker was overheard making the statement that Complainant was going to be unhappy with the results of the internal fact-finding. However, as soon as RMO1 was made aware of this incident, she immediately verbally counseled the employee. There is no indication that Complainant was restricted from reporting the incident or discouraged from doing so. The record shows that the incident was quickly handled by RMO1. In terms of Complainant’s coworkers shunning her and advising new employees to avoid her, the record is devoid of any evidence to support this contention. Additionally, despite Complainant’s contention that new complaints were dismissed by RMO1 and RMO2, there is no evidence in the record to support claim 3(f). Constructive Discharge - Claims 2 and 3(g) With regard to Complainant's claim asserting a discriminatory constructive discharge, she must prove that the Agency, motivated by discriminatory animus, created working conditions that were so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position would feel compelled to resign. Doe v. Soc. Sec. Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). 6 In this matter, the record demonstrated that Complainant’s allegations of sexual and non-sexual harassment only stemmed from 2019. While Complainant previously asserted that she made complaints going back to 2012, Complainant acknowledged during the investigation that she only reported two incidents in 2019. A third incident was dropped during the May 2019 fact- finding investigation. 2020002609 8 Specifically, Complainant must show that: (1) a reasonable person in her/his position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Greer v. U.S. Postal Serv., EEOC Appeal Nos. 01976756, 01976792 (Dec. 29, 2000). Here, Complainant asserted that she was subjected to ongoing harassment by her coworkers and that management did nothing. However, the record demonstrates that Complainant had only brought the allegations of harassment forward on two occasions, that occurred in 2019, and that the incidents were investigated during an internal fact-finding. The investigation determined that Complainant’s allegations were unsubstantiated. Based on the record, we find that Complainant failed to establish that she was subjected to such intolerable working conditions that she was forced to resign. 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 finding no discrimination and or harassment. 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 2020002609 9 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. 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. 2020002609 10 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 September 21, 2021 Date Copy with citationCopy as parenthetical citation