Sharon M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181425 (E.E.O.C. Aug. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sharon M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120181425

Hearing No. 440-2014-00054X

Agency No. 200J05372013102245

DECISION

On March 23, 2018, 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
February 23, 2018 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 an Ultrasound
Technician, GS-9, at the Agency’s Jesse Brown VA Medical Center in Chicago, Illinois.
Complainant entered employment with the Agency as an X-Ray Technician in November 2006
subject to a one-year probationary period. Complainant moved to the Ultrasound department in
2010. From the beginning of her employment in 2006 to 2013, the Radiology Operations Manager
(S2) was Complainant’s second level supervisor. Beginning in 2007, Complainant claimed that
S2 began calling her “Sweet [Complainant’s first name.]” Complainant alleged that S2 would
invade her personal space and use a low “sexual” tone such that she could feel his breath on her

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.
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face. Complainant claimed that S2 acted this way multiple times a day for years. In addition, in
Summer 2007, she felt S2’s eyes follow her as she walked by him in a hallway and heard him
moan “um um um” like he liked what he saw. Complainant claimed that S2 once told her that
since they were from the same small town in Mississippi that they needed to “look out for each
other” which Complainant took to mean they should sleep together for her to have a good career
with the Agency.

Additionally, Complainant alleged that on a Saturday in 2009, S2 called her from Outpatient
Radiology while she was working in Inpatient Radiology. Initially, the caller disguised his voice
and said “Hey baby, you’re so beautiful. I want to be with you.” The caller then laughed and “it’s
[S2,] how’s everything up there?” S2 denied making the phone call and stated that he normally
did not work on Saturdays unless there was an emergency.

In Summer 2009, Complainant alleged that S2 approached her and her co-worker (CW1) when
they were walking outside and chastised CW1 for wearing scrubs outside of the hospital.
Complainant claimed that S2 then said to her “why didn’t you tell him, sweetie?” in a “sexy tone.”
Complainant claimed that S2 leaned closely toward her and said she was beautiful and that she
had beautiful eyes. S2 denied that this incident occurred and CW1 could not recall this incident
or any other inappropriate conduct by S2.

In 2010, Complainant claimed S2 approached her regarding her new hairstyle. Complainant stated
that S2 leaned in closely, moved the hair away from her face, and said “you don’t need all of that,
you really don’t need all of that.” S2 denied that this incident occurred. In addition, Complainant
claimed that S2 repeatedly called her beautiful and sweet at the Starbucks inside the Agency’s
facility. Complainant alleged that a co-worker witnessed the incident; however, the co-worker
stated that he could not recall this interaction or any other inappropriate conduct by S2.
Complainant stated that she never told S2 to stop the comments and conduct, but she made it clear
to him she was not interested by stepping back when he approached her and avoiding him when
she saw him coming.

Complainant filed an EEO complaint in 2012 alleging discrimination regarding her non-selection
for a promotion and identified S2 as the responsible management official. Complainant did not
raise any sexual harassment allegations in the complaint. The parties entered into a settlement
agreement to resolve the matter in which Complainant agreed that S2 would serve as her mentor.

On March 6, 2013, Complainant attended a staff meeting for the Ultrasound department to resolve
scheduling and personality conflicts between the employees. Complainant claimed that during the
meeting, S2 yelled at her that “you guys need to get along...you act like kids.” S2 denied yelling
during the meeting and notes from others who attended the meeting corroborated S2’s account.

On April 4, 2013, Complainant attended a staff meeting for the Ultrasound department. During
the meeting, employees discussed their belief that their workload was preventing them from taking
breaks. S2 was not in the meeting but was waiting outside for the next meeting that would be held
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in the same room. S2 overheard the issue and stepped in to instruct the supervisor (S1) to ensure
employees received breaks. S2 then left the room.

Complainant stated that she did not report any of above alleged conduct until March 2013, because
she was afraid to come forward when she was under her probationary period. After Complainant
contacted the Office of Resolution Management (ORM), ORM notified the Chief of Radiology of
the complaint. The Chief investigated Complainant’s allegations. The Chief conducted several
rounds of witness interviews but found no evidence to substantiate Complainant’s claims.
Management considered reassigning Complainant or S2 but could not do so due to the workload.
On or around March 20, 2013, however, the Chief instructed S2 to stay away from Complainant.
S2 had no interaction with Complainant following the instruction.

On June 10, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the basis of sex (female) as
evidenced by the following events:

1. On a regular basis (at least twice a month) from 2006 to December 2012, she was
subjected to comments from a supervisor (S1) when he called her “beautiful and
sweet [Complainant’s first name],” referenced her appearance, stared at her, and
said he wanted to be with her;

2. On March 6, 2013, S1 yelled at Complainant and a coworker and said “you guys
need to get along . . . you act like kids;” and

3. on April 4, 2013, S1 was aggressive toward Complainant and interrupted her when
she tried to speak at the morning meeting.

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.
Complainant timely requested a hearing and the Administrative Judge assigned to the matter (AJ-
1) held a hearing on September 20, 2016. After AJ-1’s retirement, the matter was assigned to a
second Administrative Judge (AJ-2) who issued a decision based on the written record on February
13, 2018. In the decision, AJ-2 found that Complainant had not been subjected to discrimination
as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that there were several procedural errors committed by the AJs
assigned to her case. Complainant argues that AJ-1 should have sanctioned the Agency for its
untimely investigation of her complaint. Further, Complainant claims that AJ-2 issued a decision
based solely on credibility findings despite not hearing testimony of witnesses at the hearing. In
addition, Complainant alleges that AJ-1 failed to address her claims of reprisal. Complainant
contends that the preponderance of the evidence shows that she was subjected to a discriminatory
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and retaliatory hostile work environment. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

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 Complainant v. U.S. Postal Serv., EEOC
Appeal No. 0120140034 (Nov. 25, 2014) at n.2 (applying de novo standard of review where AJ
who issued decision did not preside at the hearing). This essentially means that we should look at
this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous)
the AJ's and Agency’s factual conclusions and legal analysis -- including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 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”).

As an initial matter, Complainant contends that the AJ erred by not sanctioning the Agency for
completing the investigation of her complaint in an untimely manner. EEO Regulation 29 C.F.R.
§ 1614.108(f) provides that agencies shall complete investigations of complaints within 180 days
from the filing of the complaint, or where a complaint was amended, within the earlier of 180 days
after the last amendment to the complaint or 360 days after the filing of the original complaint. In
this case, Complainant filed her EEO complaint on June 13, 2013; therefore, the investigation
should have been completed by December 10, 2013. On November 4, 2013, the Agency notified
Complainant informing her that the investigation would likely not be completed until February
2014 and provided Complainant information about her right to request a hearing or file a civil
action at the expiration of the 180-day investigative period. Complainant declined the Agency’s
request to extend the investigative period.

However, Complainant, through her attorney, contacted the Agency on December 12, 2013,
requesting that six witnesses be interviewed as part of the Agency’s investigation. In addition, on
December 19, 2013, Complainant requested a hearing. The Agency interviewed the requested
witnesses. On March 12, 2014, the Agency transmitted the completed report of investigation,
almost 100 days after the 180-day deadline. The Agency maintains that its delay should not be
sanctioned based on Complainant’s request that the Agency investigate six witnesses on the 182nd
day of the investigative period despite her refusal to grant the Agency’s request for an extension.

Upon review, the Commission finds that there is no evidence that the Agency's delay in this case
is attributable to contumacious conduct or bad faith. As such, under the specific circumstances
present, we do not find that either AJ abused their discretion in declining to sanction the Agency
for its delay in completing the investigation.
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Additionally, Complainant contends that AJ-1 erred in not accepting reprisal as a basis of
discrimination in the instant complaint. While Complainant did not officially file a motion with
AJ-1 to include any retaliation claims, AJ-1 denied Complainant’s attempts to include the basis of
reprisal prior to and during the hearing. AJ-2 noted in his decision that Complainant failed to raise
reprisal allegations with an EEO Counselor and failed to amend her complaint to include such
allegations. We have consistently held that AJs have broad discretion in conducting hearings and
matters such as discovery orders, scheduling (e.g., deadlines for submissions), and whether to
accept or reject a motion to amend. See 29 C.F.R. § 1614.109(e). EEO Management Directive for
29 C.F.R. Part 1614 (EEO MD-110) at 7-8 to 7-14 (Aug. 5, 2015). Upon careful review of the
entire record, we cannot find that AJ-1 committed error or abused his discretion when not allowing
Complainant to raise reprisal allegations prior to or during the hearing.

Finally, we find that AJ-2 properly issued a decision in this matter. See Duzenski-Peterson v.
Dep’t of Energy, EEOC Request No. 05A30376 (Mar. 18, 2003) at n.1 (no reversible error for AJ
who did not preside over hearing to issue decision where she had the hearing transcripts before she
issued the decision); Lozada v. Dep’t of Transp., EEOC Request No. 05900136 (May 3, 1990) (AJ
who did not preside over hearing appropriately issued decision where AJ “did not base his
credibility finding on the conduct and demeanor of the witnesses”). We are not persuaded by
Complainant's argument that AJ-2 made erroneous credibility determinations. AJ-2 did not make
any credibility determinations based on witness conduct and demeanor. Instead, he made factual
determinations based on the entirety of the record--the hearing transcript and exhibits and the
evidence in the report of the investigation. Moreover, we have conducted an independent, de novo
review of the entire record. As explained below, we agree with AJ-2's conclusion that Complainant
has not established that the Agency subjected her to sexual harassment or a discriminatory hostile
work environment.

Hostile Work Environment - Sexual Harassment

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment
affected a term or condition of employment, either unreasonably interfering with the work
environment or creating an intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No.
01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from
the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982);
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

In the instant case, Complainant alleged that S2 subjected her to sexual harassment essentially
every day, multiple times a day for years. S2 denied that he made any comments or subjected
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Complainant to any inappropriate contact. Despite the frequency and public nature of the alleged
incidents, Complainant failed to offer any corroborating evidence to support her contentions that
she was subjected to any conduct of a sexual nature. Complainant's coworkers denied witnessing
S2 engaging in any inappropriate conduct toward Complainant.

However, even assuming the alleged conduct was sufficiently severe or pervasive to establish an
intimidating, hostile, or offensive work environment, Complainant would still be required to
establish a basis for imputing liability to Agency. In the absence of a tangible employment action
by a supervisor, such as a termination, disciplinary action, etc., an employer is vicariously liable
for harassment if management knew or should have known of the alleged harassment and failed to
take immediate and appropriate corrective action. See Policy Guidance on Current Issues of
Sexual Harassment, EEOC Notice No. N-915-050 at 29-30 (Mar. 19, 1990); Rathers v. Dep’t of
the Treasury, EEOC Appeal No. 0120080750 (Aug. 12, 2009), req. for recon. den’d EEOC
Request No. 0520090677 (Mar. 11, 2010); Owens v. Dep’t of Transp., EEOC Request No.
05940824 (Sept. 5, 1996).

Even assuming that Complainant established that the conduct occurred, we find that the AJ’s
conclusion that the Agency proved its affirmative defense is legally correct and supported by the
record evidence. The evidence showed that the Agency acted reasonably to prevent workplace
harassment by providing publications and annual training on its anti-harassment policies and that
Complainant received that training on repeated occasions. Further, the record is devoid of any
evidence establishing that Complainant reported the alleged sexual harassment to any management
officials, which began in 2006, until 2013. This even though she had earlier demonstrated her
familiarity with EEO procedures by filing two other EEO complaints naming S2 as the responsible
management official, neither of which raised a claim of harassment. However, management
officials immediately conducted an investigation into Complainant's allegations following
Complainant’s report. The investigation found that Complainant's sexual harassment claims were
unsubstantiated. Nonetheless, the Chief instructed S2 to stay away from Complainant. There is
no evidence that any similar conduct recurred. As a result, the Commission finds that there is no
basis for imputing liability to the Agency.

Hostile Work Environment – Non-Sexual Harassment

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).

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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 prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

Here, Complainant asserted that based on her sex, Agency management subjected her to a hostile
work environment. For example, Complainant identified a March 2013 staff meeting in which S2
told her and a co-worker that they were acting like kids and an April 2013 staff meeting where S2
interrupted her and was aggressive toward her. The Commission finds that Complainant has not
shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment. Moreover, even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory animus. As a result, the Commission finds that Complainant
has not established that she was subjected to a discriminatory hostile work environment as alleged.

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 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 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
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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.
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

August 7, 2019
Date