Sharolyn S., Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 3, 2017

0120152020 (E.E.O.C. Oct. 3, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharolyn S., Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152020 Hearing No. 510-2014-00088X Agency No. 200I-0673-2012104852 DECISION 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 April 23, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Mammographer at the James A. Haley Medical Center in Tampa, Florida. On January 4, 2013, Complainant filed an EEO complaint in which she alleged that the Supervisory Mammographer, her immediate supervisor (S1), and a coworker (CW) subjected her to a hostile work environment because of her race (Caucasian) and disability (long-term effects of knee-replacement surgery in left knee). In particular, she alleged that between September 2010 and November 2012, she had complained to S1 about CW subjecting her to verbal and physical abuse, including constantly bumping against her chair, causing it to jar, which in turn caused her to experience pain throughout her lower back and legs. She maintained that S1 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. 0120152020 2 ignored her repeated pleas to take corrective action. She also alleged that on October 1, 2012, S1 relocated her to a different office setting as part of a transitional work assignment. Complainant was initially injured on the job in January 2008. Hearing Transcript (HT) 24. She tore cartilage and ligaments in her left leg. She underwent knee replacement surgery and was out of work for three months, after which her claim before the Department of Labor’s Officer of Workers’ Compensation Programs (OWCP) was accepted. HT 15. On November 16, 2011, Complainant reinjured her left knee but remained at work on a reduced schedule until December 22, 2011. She then left work for three weeks to undergo a total knee replacement. HT 178. Complainant returned to work on January 8, 2012, but February 7, 2012, she left work again and did not return until June 25, 2012. During this period, she underwent a third knee surgery. HT 18, 178. After she returned in June 2012, she was limited to four hours a day sedentary work, including clerical work, answering phones, assisting with mammography paperwork, FDA, and QSA paperwork. She was unable to do patient care. HT 179, 201. She remained in this assignment until October 11, 2012, when she suffered yet another knee injury. On October 12, 2012, she presented a note from her doctor that she was unable to continue working. Investigative Report (IR) 259; HT 178-79. She had not been back to work since that time. HT 19, 21, 157-58, 218.2 S1 testified that she was not aware that Complainant had a disability. HT 196, 201-03. Complainant testified that since September 14, 2010, CW would verbally and physically abuse her by blocking her comings and goings into the office through a doorway, knocking her over when she was leaving while she was on crutches, and slamming the door in her face. IR 114, 221-22, 225-27; HT 32-33. She further testified that CW had been deliberately hitting her chair on a daily basis, which caused her to experience pain in her lower back, both buttocks, and her legs, causing her left foot to go numb. HT 32-33. She averred that no one other than CW had jarred her chair. IR 114. She stated that she never received a response from S1 and opined that S1 did not want CW, who was Hispanic, to file an EEO complaint. IR 110-14; HT 32, 36-38, 42- 44, 54-55, 66. CW acknowledged that she and Complainant did not get along. CW denied that she ever bumped into or jarred Complainant’s chair, or that she attacked Complainant in any way. IR 137. CW averred that Complainant had attacked her professional reputation and tried to have her removed from the Radiology Department. IR 133-36. She also averred that she kept having issues with Complainant over patient coverage during lunch breaks, and that in an attempt to resolve the problem, she agreed to Complainant having the earlier lunch break. IR 136-37. At the hearing, CW testified that in May 2011, she wrote a report of contact after she overheard Complainant complaining to other employees that she was being treated more favorably because she, CW, was Hispanic. IR 139, HT 227-228. In addition, she averred that on August 8, 2011, she had gone to the EEO office to look into filing a complaint against Complainant for harassment. IR 133, 139; HT 229-32. 2 S1 testified that the last OWCP status report that she received from Complainant was in July 2013. HT 196. 0120152020 3 S1 averred that her office was close to the office that Complainant and CW shared, and that she never witnessed CW bumping into Complainant’s chair at any time. IR 155, 164-65; HT 181-82. She testified that she began leaving her door open so that she could see into Complainant’s office in an attempt to observe the behavior Complainant claimed CW was engaging in. She acknowledged, however, that Complainant and CW did not get along. HT 180-81. S1 testified that she attempted to resolve the conflict between Complainant and CW on at least ten occasions between September 2010 and November 2012. IR 147, 151-52; HT 192-93, 212, 237. S1 suggested on a number of occasions that they both go to mediation. IR 158. In September 2012, a fact-finding was conducted by the Administrative Officer (AO) for the Radiology Department at the direction of the department head. The AO testified that the fact- finding was initiated as a result of Complainant’s complaints about CW jarring her chair. HT 107. The AO issued her report on October 8, 2012. In paragraph 4 of the report summary, the AO stated that although she was able to establish that there was a great deal of personal friction between Complainant and CW, she was unable to validate Complainant’s claim that CW had been hitting Complainant’s chair on an ongoing basis. The AO also noted that S1 had given a tremendous amount of attention to trying to resolve the conflict between Complainant and CW. IR 202. Complainant averred that on an unspecified date, S1 informed her that the fact-finding had been concluded and that the AO had found no evidence to substantiate her claim regarding CW. S1 also informed her that she was going to be relocated from the Mammography Department to an office in the Main Radiology Department, which was on the ground floor. IR 118-19, 124. She reiterated that they were moving her in order to “not make CW unhappy.” IR 124. According to the AO, Complainant had expressed a desire during the fact-finding that she be relocated to a different office. HT 109. In paragraph 7 of her report summary, the AO recommended that Complainant be relocated to a less congested area until full resolution of her OWCP case and in accordance with the limitations suggested by Complainant’s physician in a letter dated September 17, 2012. IR 203. Between November 2011, when she had reinjured her leg, and October 2012, Complainant had been in a series of light duty transitional assignments, the requirements of which included sitting, utilizing computers, answering phones, confirming appointments, and other clerical duties. IR 191-92, 246-50. S1 stated during the investigation and at the hearing that Complainant was given the transitional assignment on October 1, 2012, in accordance with her physician’s recommendations and to separate her from CW. IR 157-60; HT 192, 216. She also averred that Complainant had never lost her full-time status even though her work restrictions limited her to working only four hours per day, and that CW needed to remain in place because of patient-care responsibilities, which were outside of Complainant’s restrictions. IR 159; HT 189-91. At the conclusion of the investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on March 3, 2015, and issued a decision on April 8, 2015. The AJ concluded that Complainant had not established that she had 0120152020 4 been subjected to a hostile work environment based on her race or disability. 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. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. To establish her harassment claim, 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 classes; (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). Complainant must show 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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Complainant must also prove that the conduct was taken because of a protected basis. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998). Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant identified her race as Caucasian. We will assume for purposes of analysis that Complainant is an individual with a disability. This is sufficient for her to establish the first element of a claim of harassment. We also find that the conduct described Complainant’s complaint is unwelcome from her own subjective perspective. See Floyd L. v. Dept. pf Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27, 2017). Complainant must establish that CW and S1 acted because of her membership in classes protected by Title VII or the Rehabilitation Act in taking the actions that comprise her harassment claim. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016); Rufus G. v. U.S. Postal Service, EEOC Appeal No. 0120142395 (Mar. 29, 2016); Joni M. v. Dept. of Homeland Security, EEOC Appeal No. 0120142884 (Feb. 1, 2016). She can do so by showing such weaknesses, inconsistencies, or contradictions in their explanations for the incidents described in the complaint that a reasonable fact finder could 0120152020 5 rationally find those explanations unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that her race and disabilities were factors in the incidents that led to her complaint, Complainant averred that management was afraid that CW would prevail if she were to file an EEO complaint because CW was Hispanic, and that management wanted to keep CW happy. IR 111. She also testified that in late 2010, S1 permitted CW to leave work after hearing that her daughter had been in a car accident, while in January 2011, S1 had refused to let Complainant leave work after she heard that her daughter had been attacked, making her wait until CW had returned from her break. HT 34-35. S1 denied that she ever told Complainant that management was concerned about CW filing and winning an EEO complaint. HT 215. S1 also denied that she treated Complainant and CW any differently with regard to their family emergencies. IR 147. One witness stated in a letter dated October 2013 that she had witnessed Complaint exhibit “bad behavior against CW, undermining CW at every turn.” This witness had referred to Complainant as “conniving.” IR 264. As to the transitional assignment that occurred on October 1, 2012, the AO confirmed S1’s testimony that the assignment was made in accordance with Complainant’s own request and was within the limitations recommended by her physician. We therefore agree with the AJ that Complainant has not established the existence of an unlawful motivation on the part of either S1 or CW in connection with the incidents set forth in the complaint now before us. We further find that Complainant has not established that the actions of which she complains were sufficiently severe or pervasive such that a legally hostile work environment existed. The conduct alleged to constitute harassment 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 (March 8, 1994). Complainant must bear in mind, however, that anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). The testimony of S1, CW, and AO, together with AO’s report, clearly establish that Complainant and CW did not get along personally. However, no other witnesses had confirmed that CW had struck Complainant’s chair even once, and, as previously noted, one witness had laid the blame for the conflict squarely at Complainant’s feet. Consequently, we find that neither the “chair-jarring” nor any other incident of alleged harassment identified by Complainant was severe or pervasive enough, either singly or collectively, to rise to the level of harassment. Even assuming that Complainant established her claim of harassment, we note that the Agency took actions to avoid liability. Where a hostile environment is alleged, the Agency can raise an affirmative defense by demonstrating: (1) that it exercised reasonable care to prevent and correct 0120152020 6 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. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Here, not only did S1 exercise reasonable care to correct the situation that existed between Complainant and S1, she made extraordinary efforts to do so. Between September 2010 and October 2012, she met with Complainant and CW ten times in an effort to persuade them to resolve their differences, to no avail. Complainant had numerous opportunities to mediate or to take advantages of other opportunities to resolve her differences with CW provided by the Agency. This defense is not available when the harassment results in a tangible employment action being taken against the employee. Id. Tangible employment actions include undesirable reassignments. Fredrick T. v. Dept. of Education, EEOC Appeal No. 0120151356 (Aug. 2, 2017); Twanna c. v. Dept. of the Navy, EEOC Appeal No. 0120151403 (Jul. 28, 2017); Chanell A. v. Dept. of Defense, EEOC Appeal No. 0120150139 (Jul. 28, 2017). To the extent that Complainant argues expressly or implicitly that the transitional assignment given to her in October 2012 constitutes a tangible employment action, we disagree. This was not a situation in which the victim of harassment was moved against her will. Complainant had expressed to the AO the desire to relocate as an outcome of the fact-finding. As we noted above, the position she was assigned to was within the limits prescribed by her doctor. Moreover, the position was located on the ground floor of the facility, closer to the main entrance, which would have afforded her less physical discomfort and stress in settling into work every day. The only reason that Complainant never served in the October 1, 2012 transitional assignment is that she had returned to the OWCP roles on October 12, 2012, and retired less than a year later. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for 0120152020 7 reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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. 0120152020 8 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 3, 2017 Date