EEOC Appeal 2020000035

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tessa G.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 2020000035
Agency No. HHS-IHS-0190-2018
DECISION
On August 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 15, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Registered Nurse (RN)/Health Home
Coordinator, GS-610-9, at the Agency’s Woodrow Wilson Keeble Memorial Health Center in
Sisseton, South Dakota.
On June 6, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (Caucasian), sex (female), color (white), and in
reprisal for prior protected EEO activity when:
1. 	since October 2015 and continuing to the present, the Assistant Director of Nursing has
subjected Complainant to a hostile work environment when she took various actions,
including but not limited to, the following:
a. 	in October 2015, Complainant was assigned to work under different physicians;
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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b. 	on December 4, 2015, management counseled Complainant regarding her
sweater, but did not counsel other employees;
c. 	in February 2017, management made a threat against Complainant;
d. 	in September 2017 and on January 19, 2018, management shared private
information 	about 	Complainant, 	and 	as 	a 	consequence 	of 	this 	private
information having been shared, both a patient complaint and cancellation of
an appointment were the results;
e. 	on September 9, 2017, management sought to defame Complainant’s reputation
both at work and publicly on Facebook;
f. 	on October 19, 2017, management and a patient whispered and laughed as they
looked at Complainant when she walked through the waiting room;
g. 	on January 17, 2018, management routinely checked on Complainant’s
location;
h. 	from January 2018 through April 2018, management subjected Complainant to
increased scrutiny regarding her arrival time; and
2. 	on August 19, 2018, Complainant resigned from her position with the Agency as a
consequence of the alleged harassment she endured on the job.
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence. 	In
accordance with Complainant’s request, the Agency issued a final decision, pursuant to 29 C.F.R.
§ 1614.110(b), on February 12, 2019, finding no discrimination.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
Harassment – Claims 1.a. – 1.h.
Complainant claims that she was subjected to discriminatory and retaliatory harassment by Agency
management. To establish this 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 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

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an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11 th 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, her race, color, sex or prior
protected activity. Only if Complainant establishes both of those elements – hostility and motive
– will the question of Agency liability present itself.
Regarding claim 1.a., Complainant asserted that in October 2015, she was assigned to work under
different physicians.
The Assistant Director of Nursing (Native American, light tan female), also Complainant’s
supervisor, explained that nurses are assigned “based upon the need of the clinic.” Specifically,
the supervisor stated that a return provider needed a full-time nurse, Complainant was assigned to
this provider based upon that need. The supervisor further noted that Complainant did not respond
to this new assignment.
The Director of Nursing (Native American, brown female), also Complainant’s second-level
supervisor, noted that Complainant was assigned to a different provider “on the same team needing
the RN expertise. Provider A was a part-time, Provider B was full-time “therefore it was felt the
complexity of her patients requested RN.”
Regarding claim 1.b., Complainant alleged that on December 4, 2015, management counseled her
regarding her sweater but did not counsel other employees.
The supervisor stated that, as a first line supervisor, she was responsible for the staff to follow the
dress code policy. The supervisor maintained that she was given a directive by her own supervisor
to counsel Complainant regarding the dress code policy. She stated that on December 4, 2015, she
counseled Complainant because Complainant wore a sweater that was large and 	was “showing
wear and tear at the cuffs. [I] reminded employee of the dress code policy – too large and torn and
ragged clothing is prohibited per the policy…asked to ensure clothing is fitted and shows no signs
of wear and tear, and the need to appear professional in attire.” Furthermore, the supervisor stated
that this matter was raised in a nurse’s meeting as a reminder “to all staff in general, and the
employee still wore inappropriate clothing.”
Complainant asserted that two named co-workers were treated more favorably than Complainant
in similar circumstances. The supervisor stated, however, that the two co-workers’ sweaters “were
fitted appropriately and were not torn or ragged.”
Regarding claim 1.c., Complainant alleged that in February 2017, management made a threat
against her. Specifically, Complainant claimed that she overheard the supervisor said “I am going
to take care of [Complainant].”

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The supervisor maintained that she has no knowledge of the February 2017 incident.
Regarding claim 1.d., Complainant claimed that in September 2017 and on January 19, 2018,
management shared private information about her, and as a consequence of this private
information having been shared, both a patient complaint and cancellation of an appointment were
the results.
The record reflects while the supervisor asserted that she does not have any recollection of this
incident, the Director of Nursing stated that this incident did not occur and that she did not cancel
appointments.
Regarding claim 1.e., Complainant alleged that on September 9, 2017, management sought to
defame her reputation both at work and publicly on Facebook.
The supervisor asserted that she does not have Complainant on her Facebook as one of her friends,
and has no knowledge of Complainant’s allegation.
Regarding claim 1.f., Complainant asserted that on October 19, 2017, management and a patient
whispered and laughed as they looked at Complainant when she walked through the waiting room.
The supervisor maintained that she has no recollection of the October 19, 2017 incident. 	In
addition, the Director of Nursing stated there was no incident, and “as the Director of Nursing, I
speak to all patients in [the] waiting room, [for] good customer service.”
Regarding claim 1.g., Complainant asserted that on January 17, 2018, management routinely
checked on her location.
The supervisor asserted that she had no recollection of the January 17, 2018 because she was on
leave.
Regarding claim 1.h., Complainant claimed that from January 2018 through April 2018,
management subjected her to increased scrutiny regarding her arrival time.
The supervisor averred that Complainant was not targeted or singled out “but [Complainant] did
arrive late on various occasions and was asked to put in leave, but so were other employees.” She
further stated that “when arriving late, [Complainant] stated she should have just come in at ‘15
after’ instead of trying to come to work on time. 	Moreover, the supervisor stated that she
conducted a private counseling with Complainant concerning her arrival time.
In summary, as detailed above, the responsible Agency officials either affirmatively denied events
occurred as alleged by Complainant or offered legitimate, non-discriminatory reasons for the
disputed actions. 	We note again that Complainant neither completed an affidavit during the
investigation nor submitted timely arguments on appeal.

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Therefore, beyond the bare assertions in the formal complaint there is simply no evidence that
discrimination or retaliatory animus played any role whatsoever in the incidents comprising
Complainant’s claim of a hostile work environment. As such, Complainant’s harassment claim is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).
Constructive Discharge: Claim 2
Complainant asserted that she was forced to resign effective August 14, 2018, due to the
discriminatory and retaliatory hostile work environment.
The supervisor noted that Complainant informed her that she was going back to school and “found
a job that would fit her school and work schedule to allow her to attend preceptorship (went on to
teach and would be off in the summer). But I also assumed it was partly because she was getting
her third HIPAA violation allegation, which the last one was brought to the HIPAA coordinator’s
attention by the [Chief of Executive].”
The record contains a copy of Complainant’s resignation note dated July 19, 2018. 	Therein,
Complainant stated “Please accept this as my formal notice of resignation from Woodrow Wilson
Keeble Memorial Health Care Center. There have been many concerns that I feel have not been
addressed and I plan to seek employment elsewhere. I hope this notice is sufficient enough to find
a replacement for me. I am willing to negotiate my actual end date. I will need August 13-16 off
but I am willing to work my late shift and weekend August 17-19. So my final day would be
August 19th , 2018.”
In essence, by arguing her resignation was coerced by the Agency's actions, Complainant is raising
a claim that she was constructively discharged. The Commission has established three elements
which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable
person in the complainant's position would have found the working conditions intolerable; (2) the
conduct that constituted discrimination against the complainant created the intolerable working
conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working
conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11,
2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Here, in light of our finding that Complainant was not subjected to a hostile work environment
based on discriminatory and retaliatory animus for her protected EEO activity, we conclude that
Complainant has failed to prove that her resignation was a constructive discharge from the Agency.
CONCLUSION
We AFFIRM the Agency’s decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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.
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, 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).

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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 23, 2020
Date