Alex L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171538 (E.E.O.C. Nov. 29, 2018)

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

Alex L.,1
Complainant,

v.

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

Appeal No. 0120171538

Agency No. 200P-0593-2016101484

DECISION

Complainant timely 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 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant established that the Agency’s proffered
explanation for its actions was pretext to mask discrimination based on his race and prior protected
EEO activity; and (2) whether Complainant established that he was subjected to hostile work
environment harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid,
with the Agency’s Environmental Management Services (EMS), at the VA Hospital in Las Vegas,
Nevada. Report of Investigation (ROI), at 5. The Assistant Chief of EMS served as Complainant’s

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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first-level Supervisor (S1), and the EMS Supervisor temporarily supervised Complainant for a
period of time. Complainant was also managed by the Chief of EMS.

On December 23, 2015, Complainant was informed that his name was not among the selectees
chosen for reassignment to the Fisher House.2 Four individuals were apparently selected for the
reassignment, but Complainant was not one of them. S1 averred that Complainant was not selected
due to his performance; namely, that he was continuously absent from his work area and found on
the computer on numerous occasions not working. ROI, at 130. Thereafter, on December 30, 2015,
the EMS Supervisor, who temporarily supervised Complainant, issued Complainant a Report of
Contact (ROC) accusing Complainant of being hard to find during his shift. In the ROC, the EMS
Supervisor noted that staff reported that they could not contact Complainant or visually see
Complainant at times during his shift. Id. at 226. The EMS Supervisor warned Complainant that
if his behavior in this manner continued, the next step would be disciplinary action. Id.
Subsequently, on February 10, 2016, the Chief of EMS issued Complainant a Letter of
Admonishment. Id. at 211. Therein, Complainant was charged with violating the Agency’s Cyber
Security Policy when he used his supervisor’s computer. Id.

In March 2016, another employee was chosen over Complainant for reassignment to the Northwest
Primary Care Clinic (PCC). Complainant felt that the Agency improperly by-passed him for the
reassignment. In response, S1 stated that he gave Complainant the opportunity to be reassigned to
the Northwest PCC once he finished a 90-day weekend rotation, but Complainant refused the offer.
S1 attested that Complainant was passed over as he failed to accept the offer to reassign him once
the rotation was complete. Id. at 132-33. Complainant averred that the offer letter stated he could
be transferred to the Northwest PCC upon completion of a 90-day work rotation, which
encompassed working on weekends for three months. Id. at 124. Complainant stated that he could
not work on weekends because he had to care for his wife who had been ill for the past eleven
years. Id. On April 4, 2016, management issued Complainant a second ROC. Id. at 227. Therein,
Complainant was accused of not moving fast enough in cleaning rooms for patients waiting to be
seen. Id. Complainant was also cited for taking an unauthorized break drinking coffee and donuts
in the breakroom. Id.

Later, Complainant was reportedly checking his email at 8:05 am, when the Manager Trainee
approached him and told him that he was not supposed to be checking emails and instead should
be doing his training. Id. at 84-85. Complainant asserts that S1 falsely accused him of being on the
computer at 7:35 am. Id. According to Complainant, employees are allowed to use the computer
and check email from 8:00 to 8:15 am. Id.

On March 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian) and reprisal for prior protected EEO activity arising
under Title VII when:

2 The Fisher House provides temporary lodging to families of veterans who are undergoing
medical treatment.
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1. On December 23, 2015, S1 denied his request for reassignment to the Fisher House;

2. On December 30, 2015, the Temporary Supervisor gave him a Report of Contact
(ROC) accusing him of being hard to find;

3. On February 11, 2016, the Chief of EMS gave him a Letter of Admonishment;

4. In March 2016, S1 by-passed his request for reassignment to the Northwest PCC;

5. On April 4, 2016, the EMS Supervisor gave him a Report of Contact (ROC)
emphasizing it was not discipline; and

6. On May 31, 2016, the Manager Trainee stood behind him while he was on the computer
checking emails and told him he should be doing training and not checking email.

Following 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
(AJ). 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 as alleged.

The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for its
actions, which Complainant did not show were pretextual. The Agency noted, with regard to claim
1, that Complainant did not receive the reassignment because there were concerns at the time
regarding Complainant constantly leaving his assigned work area and concerns with his
unauthorized use of the computer during times of his scheduled work assignments. In addressing
claim 2, the Agency observed that Complainant received the ROC due to staff reports that
Complainant could not be located for cleaning assignments. Regarding claim 3, the Agency noted
that Complainant violated the Agency’s Cyber Security Policy when he entered into his
supervisor’s computer without permission. The Agency further found, with respect to claim 4, that
Complainant refused an offer to be reassigned after he completed a 90-day rotation, which would
have demonstrated his ability in following supervisory instructions. With respect to claim 5, the
Agency noted that the ROC served to inform Complainant about his performance issues related to
his unscheduled breaks and his constant socializing. In sum, the Agency found no evidence to
show that management was motivated by either discriminatory or retaliatory animus in its actions
regarding claims 1-5.

In addressing Complainant’s claim of a hostile work environment, the Agency found no evidence
of abusive or demeaning behavior directed towards Complainant. The Agency observed that a
review of the record showed insufficient evidence to establish that the event in question involved
any unlawful severe or pervasive conduct, or that the conduct was motivated by discriminatory
race or retaliatory-based animus. The Agency therefore found that Complainant did not show that
he was subjected to hostile work environment harassment as alleged.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends, in pertinent part, that he informed management that he was
going to file an EEO complaint, but his claims of discrimination nevertheless continued to be
ignored by management, Complainant asserts that he was not informed about his work
performance and attendance record until after the selection had been made with respect to claim
1. Complainant maintains that a coworker opined that African-American employees received
favoritism in the granting of breaks and approved leave, among other things. He also states that no
other Housekeeping employees have been disciplined as he was. Complainant feels that he was
wrongly cited for disappearing from his work area. He states that he only leaves his work area to
throw out the trash, clean the main restrooms, or assist other staff members. Complainant also
believes that S1’s offer to have him reassigned to the Northwest PCC once he finished a 90-day
weekend rotation was not a true offer, as another coworker had already received the reassignment.
Complainant states that management has a history of subjecting him to a hostile work environment,
including observing his activity on the computer and instructing other employees not to make
contact with him. Complainant believes that management is trying to have him fired. He states that
in 2016, management removed him from working with patients and relegated him to the basement.
3

STANDARD OR REVIEW

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”).

3 To the extent that Complainant desires to raise new claims, the Commission has held that it is
not appropriate for a Complainant to raise new claims for the first time on appeal. See, e.g., Shela
O. v. Dep't of the Army, EEOC Appeal No. 0120113826 (Dec. 18, 2015) (citing Torres v. U.S.
Postal Serv., EEOC Appeal No. 01934108 (June 10, 1994)). Should he wish to pursue these claims,
Complainant is advised to contact an EEO counselor to begin the administrative process.

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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products. Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reasons for
its actions. Specifically, with regard to claim 1, S1 explained that Complainant was not selected
because he was frequently absent from his work area and found on the computer on numerous
occasions not working. With respect to claim 2, the EMS Supervisor noted that staff reported that
they could not contact Complainant or visually see Complainant at times during his shift. In
addressing claim 3, the Chief of EMS explained that Complainant was issued the Letter of
Admonishment for unauthorized entry into his supervisor’s computer, which violated the
Agency’s policy on cyber security. With regard to claim 4, S1 stated that he gave Complainant the
opportunity to be reassigned to the Northwest PCC once he finished a 90-day weekend rotation,
but Complainant refused the offer. As for claim 5, a management official stated that he had
received complaints from employees that Complainant was having conversations and not cleaning
rooms in a timely manner. The management official also stated that he found Complainant in the
break room having coffee and donuts when he was not on his scheduled work break. As for claim
6, the Manager Trainee explained that on May 31, 2016, at 7:35 am, he observed Complainant
sitting at the Computer, but Complainant’s computer time was only from 8:00 am to 9:00 am on
Tuesdays.

The burden now shifts to Complainant to establish that the Agency’s nondiscriminatory reasons
were a pretext for discrimination. Burdine, at 254. Notwithstanding Complainant’s contentions on
appeal we find that he was not established that the Agency’s reasons were pretext for
discrimination based on either his race or protected EEO activity. In so finding, we note that a
variety of management officials cited Complainant for the performance issues mentioned above.
There is nothing in the record refuting management’s allegations. We note that Complainant’s
coworker attested that he and other staff would see that Complainant would disappear for long
periods of time during his work schedule and take excessive restroom breaks. ROI, at 204. We
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also note, with regard to claim 5 (the Letter of Admonishment) that the record reflects that two
employees reported that Complainant had read through a supervisor’s emails after finding the
computer unlocked. Id. at 218. In sum, other than Complainant’s unsupported assertions, there is
simply no evidence here that the Agency was motivated by discriminatory or retaliatory animus
with regard to claims 1-6.

As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us. Based on the record before us, we are not persuaded that
Complainant has shown that management’s conduct was based on his race or prior protected EEO
activity.

Hostile Work Environment Harassment

Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant’s claim of a hostile work
environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory or retaliatory animus. See Oakley v. United States Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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 finding that Complainant
did not establish that he was discriminated against as alleged.

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
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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.

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
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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 29, 2018
Date