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

Equal Employment Opportunity Commission

Oct 31, 2018

0120170217 (E.E.O.C. Oct. 31, 2018)

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

Alex W.,1
Complainant,

v.

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

Appeal No. 0120170217

Hearing No. 550-2016-00162X

Agency No. 200P-0612-2015102751

DECISION

On October 7, 2016, 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
September 12, 2016, 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to a hostile work environment based on race, sex, color, and/or age.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health Technician,
GS-0640-06, at the Agency’s Northern California VA Healthcare System in Martinez, California.
Complainant’s first-line supervisor was the Chief of Audiology (S1), and his second-line
supervisor was the Chief of the Audiology and Speech Language Pathology Service (S2).

Complainant alleged that S1 continuously harassed him since 2006. Complainant stated that the
harassment included selectively enforcing rules against him, subjecting his work to extra scrutiny,
asking him to move furniture and boxes, asking him to fix her computer and then complaining that
he moved things on her desk, constantly monitoring his whereabouts, requiring him to keep his
door open, not recommending him for performance awards, placing a sign-out board on his door,
and not being social or respectful towards him. S1 denied singling Complainant out. S1 stated
that she enforces the rules against all of the employees she supervises. Complainant averred that
S1 would page him over the public address system when he was in the bathroom and that one time
she called him on his cell phone after his tour of duty ended to ask where he was. S1 denied paging
Complainant over the public address system. S1 stated that she called Complainant on his cell
phone on one occasion when she could not locate him during work hours.

According to Complainant, his coworkers, who were Caucasian White females, were not subject
to the same level of scrutiny by S1. A Health Technician (C1) stated that S1 treated Complainant
unprofessionally by asking him to constantly explain himself in a way that other coworkers were
not required to do. An Audiologist (C2) averred that S1 singled Complainant out for harsh
treatment as though he were a child. A Secretary (C3) stated that S1 treated Complainant more
rudely than she treated other employees. Another Health Technician (C4) stated that S1 watched
Complainant more closely than anyone else. A Registered Respiratory Therapist (C5) stated that
she thought S1 treated Complainant differently than his peers because of his involvement with the
union. Another Audiologist (C6) stated that S1 was constantly monitoring Complainant. The
coworkers also testified that they believed some of the conflict was due to S1’s inexperience as a
supervisor.

Complainant stated that in 2010 S1 threatened him with discipline for allegedly refusing to see a
patient. Complainant denied refusing to see the patient. According to Complainant, he stated that
he had an important call coming up over his lunch break and would see the patient after lunch.
Complainant stated that S2 reduced the proposed admonishment to a written counseling. S2 stated
that it was inappropriate for Complainant to delay seeing the patient but that she reduced the
proposed admonishment to a counseling because of Complainant’s humble and apologetic
response.

Complainant averred that on various occasions in 2014 S1 would shout at him to get back to work.
According to Complainant, S1 did not do the same to his coworkers. S1 denied yelling or shouting
at Complainant. S1 stated that her coworkers have told her that she has a loud voice.

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Complainant alleged that in November 2014 and February 2015 S1 interrupted him while he was
seeing patients to say that Complainant was very busy and needed to wrap up the appointment.
According to S1, she asked Complainant one time to wrap up an appointment when he was very
loudly talking to a patient about their time in the military and complaining about their wives. S1
stated that the appointment was taking more than 25 minutes and that the comments about their
wives were inappropriate.

Complainant stated that in January 2015 he was wearing a sweater with snowflakes on it and that
S1 commented that he looked like her dog. According to Complainant, S1’s dog is brown, so he
inferred that she was referring to his skin color. S1 stated that there were shapes on the side of
Complainant’s sweater that looked like chihuahuas. S1 averred that she has a chihuahua and
commented that the shapes looked like her dog’s face. S1 denied that the comment was related to
Complainant’s race or color.

According to Complainant, on April 6, 2015, S1 raised her voice at him and accused him of being
in the bathroom for too long. S1 averred that Complainant was gone for 25 minutes without telling
anyone where he was going. Complainant stated that S1 told him that he should not be in the
bathroom for more than five minutes. S1 stated that other employees inform her before leaving
the clinic for extended amounts of time. According to S1, she raised her voice because
Complainant walked away from her while she was trying to talk to him.

On May 19, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), color (Black), and age (56) when:

1. On a continuous basis beginning in 2006, S1 selectively enforced rules against him,
overly scrutinized his work, asked him to move furniture and boxes, asked him to
fix her computer and then complained he did not put things back in the right place,
overly monitored his whereabouts in the clinic, required him to keep his door open,
never recommended him for performance awards, put a sign-out board on his door,
and was not social or respectful towards him;

2. Between 2006 and 2011, S1 tracked him, wanting to know where he was, and would
page him on the public address system while he was in the bathroom or call him on
his cell phone while he was on the way home from work to find out where he was;

3. In 2010, S1 proposed a disciplinary action against him for allegedly refusing to see
a patient;

4. In 2014, S1 would yell in the hallway, “[Complainant], get back to work,” but she
would not say the same to his coworkers;

5. In November 2014 and February 2015, S1 walked in on him during appointments
with veterans to complain, “[Complainant] is very busy, and he has to wrap the visit
up”;
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6. In January 2015, S1 commented to him that his sweater looked like her dog; and

7. On April 6, 2015, S1 raised her voice at him and accused him of being in the
bathroom for a long time.

At the conclusion of 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). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that
Complainant had failed to timely request a hearing. The AJ remanded the complaint to the Agency,
and 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 instant appeal followed.

CONTENTIONS ON APPEAL

Complainant makes no contentions on appeal.

In response to Complainant’s appeal, the Agency contends that its final decision properly found
that Complainant failed to establish that he was subjected to discrimination.

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”).

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) 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). 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). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
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In the instant case, we find that there is no evident connection between Complainant’s race, sex,
color, and/or age. Although six of his coworkers substantiated Complainant’s allegation that S1
treated him differently than his coworkers, the preponderance of the evidence in the record does
not establish that S1 singled Complainant out because of his membership in any protected class.
Accordingly, Complainant has not established that he was subjected to a hostile work environment.

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 because the preponderance
of the evidence in the record does not establish that discrimination occurred.

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.
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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

October 31, 2018
Date