0120142809
09-13-2016
Verdell A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Verdell A.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120142809
Hearing No. 430201200286X
Agency No. 200405902012100902
DECISION
Complainant filed an appeal from the Agency's July 28, 2014 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Phlebotomist and Registered Nurse at the Agency's VA Medical Center in Hampton, Virginia.
On January 18, 2012, Complainant filed an EEO complaint alleging that she was subjected to a hostile work environment and harassment based on sex (female) when: 2
1. In July 2011, a coworker ("H1") repeatedly requested that she teach him how to salsa dance and speak Spanish, and referenced her home of record (Texas), information he obtained on her public Facebook page;
2. During the period of July and August 2011, H1 waited for her in the facility parking lot until she left her evening shift, and then verbally accosted her by calling out to her and attempting to converse with her;
3. During the period of July and August 2011, H1 visited her Facebook page and obtained information regarding her home of record; then referenced personal information while she performed her assigned work tasks, in the presence of a patient;
4. In October 2011, H1 followed her from the facility until she reached the interstate;
5. On November 9, 2011, another coworker ("C2") informed her that H1 visited her work area (lab) to inquire about her whereabouts;
6. In November 2011, she felt threatened when H1 and another coworker approached her, blocked her path, and H1 inquired whether he offended her;
7. On November 30, 2011, she was required to attend a meeting and submit a formal response statement concerning an incident earlier that month where the Nurse Officer of the Day charged her with creating a hostile work environment for H1 by looking at H1 in a threatening manner; and
8. On December 5, 2011, H1 alleged that she subjected him to a hostile work environment because of the harassment allegations and restraining order she had issued against him.
The Agency accepted the complaint and conducted an investigation. At the conclusion of the EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge ("AJ"). The hearing was held on June 18, 2014, and eight witnesses testified. Both parties were represented by attorneys. On July 7, 2014, the AJ issued a decision concluding Complainant failed to prove the Agency subjected her to discrimination as alleged.
In determining that Complainant failed to prove discrimination in this case, the AJ made the following findings of fact which he noted were based on the evidence contained in the report of investigation, the testimony presented at the hearing, the exhibits admitted during the hearing, and his own "observations of the witnesses' credibility, demeanor and conduct at the Hearing."
In April 2011, Complainant, a registered nurse, accepted a position with the Agency as a Phlebotomist. Her responsibilities included drawing patients' blood on the third floor unit where H1 (male), a Housekeeping Aide, was assigned to clean. H1 was also authorized to use the computers at the unit's nurses' station in order to update which rooms were clean and prepped for patients.
In July 2011, H1 looked up Complainant's Facebook page, which was not privacy protected, on the nurses' station computer. He was able to glean that she enjoyed salsa dancing and spoke Spanish. H1 told Complainant, who was on the ICU floor talking with her (male) friend, the ICU Telemetry Technician ("T1"), that he saw her Facebook page and asked her to give him Spanish lessons and teach him how to Salsa. Complainant recommended a venue that offered Salsa lessons and walked away.
H1 also began calling Complainant "Texas," after overhearing her tell T1 that Texas was her nickname when she was in the Navy. Whenever H1encountered Complainant, he would call out, "what's up, Texas" loud enough to draw attention to Complainant. Complainant began ignoring H1, but he continued to shout "Texas!" whenever he saw her. Complainant also alleges that on multiple occasions in July and August of 2011, H1 waited in his car or stood in the parking lot until he saw her leaving work; then shout "hey Texas, come here, I want to talk to you." Complainant ignored this as well.
In August 2011, H1 made to Facebook friend request to Complainant, which she either declined or ignored. He made no requests.
In September 2011 Complainant applied for and accepted a position as a Nurse in the Intensive Care Unit (ICU). In her new role, Complainant reported to the Nurse Manager, who was her immediate supervisor ("S1").3 Complainant was assigned a preceptor ("P1"), a fellow staff nurse assigned to train Complainant.
After she assumed her new job, Complainant alleged that once, in October 2011, H1 followed her off the premises in his car during his shift. Complainant alleged she changed her schedule to avoid H1, even though their shifts still overlapped.
In early November 2011, someone identifying himself as "Al from work" called Complainant at her unlisted phone number and told her he was attracted to her and that she was beautiful. . On November 7, 2011, Complainant reported that telephone call to the Agency's police. Complainant believed "Al" was actually H1 and began asking coworkers to walk her to her car after work
On November 9, 2011, Complainant's prior coworker from the Phlebotomy Lab informed her that H1 asked about her. Later that week, H1, accompanied by his friend, another Housekeeping Aide ("H2") approached Complainant in a hallway. H1 said "yo why you ain't talking to me" and asked if he did something to offend her. Complainant said yes and walked away. H2 was put off by Complainant's tone, which he described as a "sneer" or "snarl" and suggested H1 speak with a supervisor.
On November 30, 2011, H1 reported to the Nurse on Duty ("S2") that he was uncomfortable working with Complainant, and that she was making inappropriate comments about him and his personal life. S2 immediately notified H1's supervisor and Complainant that they needed to meet and discuss the allegations.
During the meeting, Complainant accused H1 of behaving inappropriately toward her, including the constant references to Spanish and Salsa lessons the previous summer. H1 retorted his grievances against Complainant. It also came to light that there was an employee named Al, who had since been fired, who was probably the person who called Complainant. Both S2 and H1's supervisor described the meeting as unproductive and likened H1 and Complainant to kids who couldn't get along. Afterward, S2 requested statements from Complainant and H1, and H1's supervisor assigned him to work on another floor and instructed him to stay away from Complainant. Complainant reported no further incidents with H1 since the November 30 meeting.
Complainant did not submit a written statement as requested by management. Instead, in early December 2011, Complainant reported the alleged harassment to the VA Police, who investigated the matter, but found insufficient evidence of stalking. Complainant also initiated contact with an EEO Counselor and sought a protective (restraining) order against H1 from the local court, which was initially granted.
A copy of the protective order was forwarded to the Agency, and on December 10, 2011 H1's third level supervisor issued him a "Letter of Instruction," which, among other things, ordered H1 to stay away from the ICU building.
Based on these facts, the AJ determined that Complainant failed to prove the Agency subjected her to discrimination as alleged. The Agency adopted the finding in a Final Order.
The instant appeal from Complainant followed.
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. Nat'l Labor Relations Bd., 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 a claim of hostile work environment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, 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 a protected basis -- in this case, because of her sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Allegations 1 and 3 - Use of Complainant's Personal Information
In allegations 1 and 3, Complainant alleged that H1 referenced personal details about her life that she did not provide to him - most notably his repeated requests for Spanish and Salsa lessons and calling her "Texas" in a loud and overly familiar manner. However, within the context of the record as a whole, we find that neither of these actions nor the way in which H1 obtained personal details about Complainant's life was as hostile or abusive as to constitute harassment. H1 obtained the information from Complainant's public Facebook profile, available to anyone on the internet; and from allegedly overhearing a conversation between Complainant and T1 in a common area of their shared workspace. Complainant acknowledges that after she ignored his Facebook friend request, H1 did not submit any additional requests or bring it up again.
Claims 2, 4, 5 and 6 - Stalking Incidents
"An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it." See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
The AJ found allegation 4, which alleges that H1 followed Complainant in his vehicle from the parking lot until she reached the interstate, as well as Complainant's testimony that H1 always seemed to be waiting in the hallway for her or at whatever door she would use to exit the building, while the "most serious," were "not believable." The AJ cites Complainant's demeanor while testifying about these "stalking incidents," and that the incidents were not referenced in Complainant's initial EEO interview or in both Complainant and T1's to the VA Police. We see no objective evidence in the record to contradict the AJ's credibility finding, so we have not considered these "stalking incidents" in reaching our decision.
Without Claim 4 and Complainant's other allegations to create a context of "stalking incidents" or alleged stalker-like behavior; we find that Claims 2, 5, and 6 lose the requisite level of hostility to constitute harassment. Claim 2, which alleges that H1 waited for Complainant in the parking lot, is reduced to another example of H1 loudly calling her "Texas." Nothing in the record indicates that H1 approached Complainant when he called out to her; and as discussed above, calling out "Texas" at Complainant is not sufficient to establish a claim of harassment.
Allegations 5 and 6 suggest additional examples of "stalking incidents," but this framing is not supported by the record. Contrary to Complainant's allegation in 5, there is no evidence that H1 actively sought her out in her new workspace. In her statement to the VA Police, Complainant's prior coworker from the Phlebotomy lab confirmed that she told Complainant that H1 said "hi" and that he wondered if he did something wrong; but specifies that she relayed the message after encountering H1 on the smoking deck. In allegation 6, multiple witness statements, including that of her friend, T1, attest that H1 and H2 did not block Complainant's path when they approached her. We note that the alleged actions in allegations 5 and 6 occurred just days after she received an inappropriate phone call that she believed was from H1, although it later appeared it was from another individual. Allegations 5 and 6 appear to be nothing more than two isolated instances of H1 attempting to communicate with her, which do not constitute harassment.
Allegations 7 and 8 - H1's Counter Allegations
Both allegatons 7 and 8 arose from H1's allegations that Complainant subjected him to a hostile work environment. In allegation 7, H1 reported Complainant's repeated dirty looks to S2. Based on the circumstances and the record, we find that S2's actions were consistent with her role as a supervisor and her stated purpose of resolving a conflict allegedly caused by an employee under her supervision. We agree with the AJ's finding that the effect of the November 30 meeting was prompt and effective action to prevent Complainant from being subjected to further alleged incidents of potential harassment from H1 as H1 was immediately reassigned and Complainant concedes she had no further contact with him after November 30.4 As for allegation 8, Complainant puts forth no evidence to show how H1 contacting an EEO Counselor to allege that the restraining order she submitted against him caused him to experience a hostile work environment was so severe and pervasive as to unreasonably interfere with her work environment. Complainant acknowledges that the Agency took action to comply with the restraining order and that she had no interaction with H1 after November 30, 2011.
In sum, we concur with the AJ's determination that none of the instances alleged, separately or combined, were sufficiently severe or pervasive to establish a hostile work environment for Complainat that violated Title VII. As such, the question of the Agency's liability for H1's actions does not present itself.
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.
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 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
September 13, 2016
__________________
Date
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.
2 Complainant also alleged an additional claim of reprisal under Title VII concerning her work schedule for a one-week period, which the AJ found against, but declined to raise the matter on appeal to this Commission.
3 S1 retired from the Agency prior to the hearing and did not appear as a witness.
4 We note that there is considerable argument on appeal about whether or not Complainant reported H1's behavior to management prior to the November 30 meeting. Complainant contends she reported the harassment to S1, who she asserts brushed it off as a "personal matter." She does not state when this occurred. As already noted, S1 had retired at the time of the hearing and did not testify. However, during the investigation, S1 stated that she was Complainant's supervisor after she left the lab and assumed the nursing position. S1 stated that Complainant did not talk to her about H1 until after she had already gone to the Agency police and had a court date for the protective order so S1 believed the matter was being addressed by the proper authorities. S1 said that the incidents Complainant mentioned occurred while she was working in the lab, not as a nurse. Complainant also alleges that she told P1 about some of the harassment, testifying during a deposition that she did so sometime in late October or November. However, we note that P1 was not a supervisory employee, but a coworker assigned to help train Complainant.
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