Adalberto P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120172175 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adalberto P.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120172175 Agency No. 200P06122016102267 DECISION On June 2, 2017, 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 May 11, 2017, final decision concerning his 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in an intermittent capacity as a GS-5 Licensed Vocational Nurse (LVN) for four VA medical clinics located in the cities of Fairfield, Vallejo, Oakland, and Martinez, California. On May 20, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on race (African-American), sex (male), and disability (Post Traumatic Stress Disorder) when: 1. on undetermined dates, the Nurse Manager, Complainant’s supervisor (S1), asked him why he wanted a full-time position when he is a disabled veteran; 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. 0120172175 2 2. since January, S1 has continually reduced his scheduled work hours;2 3. on October 2, 2015, S1 asked him to write his self-evaluation and to ask a coworker to help him; 4. on October 22, 2015, S1 informed him that she had selected another individual for a position for which he applied; 5. on October 22, 2015, S1 stated to him, "Why do you need to work?" 6. on October 23, 2015, S1 gave him a “Fully Successful” rating on his performance evaluation; 7. on November 13, 2015, S1 informed him that she had selected another individual for a position for which he applied; 8. on November 13, 2015, S1 asked him why he needs to work and stated that he does not need to work full-time because he is a disabled veteran; 9. in November or December 2015, Complainant was assigned to train one of the newly selected individuals; and 10. on February 12, 2016, when Complainant contacted the Chief of Nursing to report his belief that the selections were unfair and that S1 was creating a hostile work environment, S1 asked him to speak directly to her regarding any issues he wanted to discuss.3 After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or a hostile work environment as alleged. The instant appeal followed. On appeal, Complainant requests that the Commission reverse the Agency’s final decision. 2 Claim (2) is also a discrete act of alleged discrimination. 3 The Agency dismissed claims (4), (6), and (7) pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO Counselor contact; however, we note that the Agency considered these claims as background evidence in support of Complainant’s harassment claim. We agree with the Agency’s dismissal of these claims involving untimely discrete acts and note that Complainant has not raised any opposition to the Agency’s dismissals on appeal. 0120172175 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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”). Hostile Work Environment To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) that he 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 his 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). Therefore, to prove his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission notes that Complainant chose not to request a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. Complainant alleged several incidents of what he believed to be discriminatory harassment. We find that Complainant failed to present evidence to prove that the alleged acts took place. Assuming that the incidents occurred as alleged, the Commission finds that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. With respect to his work hours, S1 stated that when Complainant first entered duty, he was covering a full-time LVN who had been out for longer periods of time; therefore, he had worked more hours. 0120172175 4 S1 further explained that once the LVN came back from leave and back to the regular position, Complainant's hours had been reduced.4 She affirmed that she provided Complainant with scheduled shifts at the Mare Island clinic when she needed an extra LVN, but could not provide him with such shifts when she did not need an extra LVN. She stated that she informed Complainant that he was hired to serve as an intermittent5 LVN at three other clinics as well, and that he could contact those clinics to get more scheduled shifts if he wanted more shifts. However, Complainant did not want to do that. With respect to his non-selections, S1 also affirmed that the selections for full-time LVN's at the Mare Island clinic referenced by Complainant were made based on an Agency application and selection process that included a selection panel. The selection panel selected the best qualified candidates based on the criteria established during the application process. Regarding the self- evaluation and performance evaluation, S1 further asserted that she encouraged everyone on her staff to provide some narrative of their own accomplishments. She confirmed that she would then try to incorporate it into the performance evaluations. She explained that it was up to the employees to provide the write-up if they chose to do so. In addition, she explains that since she covered two clinics she would not always know if someone had done something above and beyond the call of duty unless they tell her or put it in writing. She further stated that she rated Complainant Fully Successful because he did “basis work.” As to assigning him to train a new employee, S1 denied assigning Complainant the task of training a newly hired LVN at the Mare Island clinic as alleged. She also denied instructing Complainant to bring his complaints to her instead of the Chief of Nursing as alleged. S1 also denies making any of the derogatory or discriminatory statements to Complainant. Complainant affirmed that he does not know why he believes that these issues were based on discrimination, but that the actions of S1 made him feel uncomfortable. Complainant did not present evidence to refute S1’s explanations or establish that he was subjected to unwelcome personal slurs or other denigrating or insulting verbal or physical conduct based on his protected classifications. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. To the extent that any of the alleged conduct occurred, we find insufficient evidence of discriminatory animus on the part of any responsible management official. After reviewing the record, the Commission finds that Complainant has not shown that he was subjected to a discriminatory hostile work environment. Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his claims, the Commission finds that he has not shown that the Agency's reasons for its actions were a pretext for unlawful discrimination. Accordingly, the Commission finds that Complainant has not established that he was subjected to discrimination or a hostile work environment as to all claims alleged. 4 Complainant was the only intermittent GS-5 LVN under S1’s supervision. 5 Complainant’s position was not a full-time position but an on-call, as needed position. 0120172175 5 CONCLUSION Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision. 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 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. 0120172175 6 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation