Shanta M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 20, 20160120140846 (E.E.O.C. Oct. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanta M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140846 Hearing No. 420-2012-00205X Agency No. 200305202012100568 DECISION Complainant filed an appeal from the Agency’s November 19, 2013, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Chief of Dental Services at the Gulf Coast Veterans Healthcare Systems in Biloxi, Mississippi. On January 26, 2012, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of sex (female) when: (1) on September 29, 2011, her supervisor (S1) turned a professional meeting into a personal attack when he made an unprofessional and/or intimidating remark to her regarding how her work was to be measured; (2) on September 30, 2011, S1 refused to discuss false allegations made against her by a colleague (C1) and additionally, S1 failed to address the harassing behavior she made him aware of on at least two occasions; (3) on October 4, 2011, S1 directed and/or ordered her to participate in a mediation; (4) on October 17, 2011, during a conference call with colleagues, 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. 0120140846 2 S1 falsely accused her of raising “serious allegations that are not supported.” S1 then began waving a piece of paper in her face and laughing when he said "if you (Complainant) had reached out and engaged people, you could have resolved these things. ... It's good to see you smile instead of always looking for a fight;" (5) on January 19, 2012, S1 attempted to overturn a decision made by Complainant to not provide performance pay to C1, who resigned; (6) on January 19, 2012, and ongoing, S1 undermined her authority as Dental Service Chief, by failing to inform her when he has "important" interactions with her subordinate employees; and (7) on a continuing basis, S1 requires the Administrative Officer (AO) to be present and taking notes when he meets with Complainant. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 18, 2013, motion for a decision without a hearing and issued a decision without a hearing on October 18, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. UNDISPUTED FACTS In her decision, the AJ notes the following undisputed facts: From May 9 through 13, 2011, a Dental Service Site Visit was conducted. The purpose of the visit was to provide insight for Dental Services. The site visit was requested by the then facility director (D1). The site visit was conducted by two experienced dental service chiefs. Complainant advised the site visit team in May, 2011 that she felt welcome at all sites. When the site visit team interviewed the employees in Biloxi they noted that they expressed one of two extreme views of Complainant. "Few individuals were neutral or ambivalent; responses were emotionally charged at one extreme or the other." The negative opinions described Complainant as "aggressive and intimidating with poor communication skills and lack of compassion." D1 agreed to meet with Complainant regarding the site visit. This meeting took place on June 3, 2011. In that meeting, the director, who received the report from the site visit, pointed out that the site visit team made nice comments about her. On September 29, 2011, S1 mentioned the site visit, in a dental service meeting. On September 30, 2012, S1 refused to discuss the May 2011 allegations made by a subordinate who resigned in June of 2011. On October 4, 2011, Complainant and S1 attended a mediation based on emails Complainant sent to him, intending to resolve continuing problems requiring coordination at his level. During a conference on October 17, 2011, Complainant made allegations regarding a Veterans’ Affairs/Department of Defense service agreement with Eglin Air Force Base. S1 accused Complainant of raising serious unsupported allegations against an employee (C2) who worked on the project. She alleged that C2 was engaging in actions "tantamount to fraud, waste, abuse and possible criminal use of government funds. 0120140846 3 On January 19, 2012, Complainant decided not to provide performance pay to her former subordinate (C1). S1 went to the Human Resources department (HR) to ensure that C1 "got what he should.” S1 asked that AO attend meetings between him and Complainant. He did not require that AO take notes. AO also attends his meetings with other service chiefs. On one occasion, S1 said that Complainant should "not be emotional." S1 also told an unnamed female employee (at an unknown date and location) that Complainant should "conform to be 'more submissive' in order to find a husband." ANALYSIS AND FINDINGS 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. To establish a claim of harassment a 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 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). Therefore, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Specifically, we agree that Complainant failed to present sufficient evidence establishing that the actions of S1 and/or D1 had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. We also agree with the Agency in concluding that Complainant fails to establish a sufficient connection between the alleged harassment and her gender. 0120140846 4 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 action with adopts the AJ’s summary judgment decision in favor of the Agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 0120140846 5 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 October 20, 2016 Date Copy with citationCopy as parenthetical citation