Carmelo L.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120141975 (E.E.O.C. Nov. 1, 2016)

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

Carmelo L.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120141975

Agency No. 2003-0677-2013100907

DECISION

The Commission accepts Complainant’s appeal from the March 27, 2014 final Agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Engineer
at the Agency’s Eastern Kansas Medical Center in Topeka, Kansas. Complainant suffers from
coronary artery disease from a heart attack he experienced in 2010, and Post Traumatic Stress
Disorder (PTSD) from his time in the military. Additionally, Complainant has had spinal
surgery and has experienced depression and anxiety following the surgery. In January 2011,
Complainant sustained an on-the-job shoulder injury. Complainant attempted treatment, but
scheduled surgery after it was unsuccessful. On October 25, 2011, Complainant’s supervisor
(S1) referred him to the Office of Human Resources for information about filing a workers’
compensation claim.

S1 kept a sword displayed on a wooden stand on top of a bookcase in his office. S1 is retired
from the National Air Guard, and the sword was a leadership award he had received.

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.
0120141975

2
Complainant became aware of the sword in March 2010, when he was first hired.
Complainant claims that he did not feel threatened by the sword, but he believes that S1 thinks
he is above the rules and there is arrogance attached to it.

On November 3, 2011, Complainant underwent cervical spinal surgery. A few days after the
surgery, S1 visited Complainant at his home. Complainant claims that S1 was not invited.
Complainant believes this visit was harassing because S1 said he cared about him, but it was
really the opposite.

On January 18, 2012, Complainant’s workers’ compensation claim was denied by the Office of
Workers’ Compensation Programs (OWCP) due to insufficient medical documentation. In
March 2012, the denial was sustained. On October 25, 2012, Complainant met with several
Agency officials regarding his workers’ compensation claim. Complainant attributed the
processing problems to S1 delaying the paperwork. In addition, Complainant raised S1’s visit
to his home in November 2011. Following the meeting, the Acting Director (AD) instructed
S1 not to visit Complainant at home again.

In November 2012, Complainant’s co-worker (CW1) informed him that S1 and his secretary
entered his office and took pictures of his scissors. Complainant believes that S1 was baiting
him into a physical confrontation so that he would be fired and S1 would not have to “face the
music for what he neglected to do with the paperwork.”

On December 7, 2012, S1 went to Complainant’s office to inform him of the available options
for compensation for his time off due to injury. S1 told Complainant that he was willing to
donate some leave to Complainant, but could not as his supervisor. Complainant became upset
and angrily yelled at S1. Complainant told S1 that he did not want any kind of charity leave
because he was entitled to workers’ compensation. Complainant claims that he attempted to
leave, but S1 briefly blocked the doorway. Complainant stormed out of the room and went
home. Complainant claims that on another occasion, S1 followed him down the hallway and
made offensive comments such as asking him to sit down and have coffee with him and that he
“was on the team that hired [Complainant.]” Complainant claims that this was offensive to
him because of what S1 had done and continued to do.

From January 15, 2013 through February 20, 2013, Complainant worked part-time and took
leave without pay (LWOP). Complainant submitted paperwork to get the leave protected
under Family Medical Leave Act (FMLA). Complainant submitted the paperwork to S1, but
claims that he delayed the processing of the paperwork. Complainant alleges that it took seven
weeks for the paperwork to be processed. Complainant’s FMLA leave was approved from
April 18, 2013 through April 17, 2014, or upon exhaustion of his FMLA entitlement.

On March 21, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability as evidenced by multiple incidents
including, inter alia, on or about January 2012, he felt threatened when he became aware that
his supervisor (S1) had a sword in the office; he met with upper management to report that S1
0120141975

3
was harassing him by going to Complainant's home uninvited on two occasions; he was told by
a co-worker that S1 and his secretary took a picture of his scissors and alleged that he had
threatened S1; S1physically blocked the doorway as he was leaving; he asked S1 to stop
following him down the hallway making offensive comments; and from January 15, 2013,
through February 20, 2013, S1 delayed the processing of his leave request.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. The Agency issued a FAD in accordance with Complainant’s request pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that the alleged incidents were insufficiently
severe or pervasive to establish a hostile work environment. Additionally, the Agency found
that there was no evidence that the alleged incidents were based on discriminatory animus.
Specifically, S1 kept a sword displayed on a wooden stand in his desk which was a leadership
award. Complainant admitted that he did not feel threatened by the sword; rather, he believed
that S1 acted as if the rules did not apply to him. Further, Complainant admitted that S1 did
not display the sword to intimidate him. Nonetheless, the sword was later removed.

With respect to the October 25, 2012 meeting with upper management, the primary focus of
the meeting was to address the impediments of Complainant’s receipt of OWCP benefits for his
on-the-job injury. While Complainant blamed the problems on S1’s delayed submission of the
paperwork, S1 stated that the denial were due to a lack of proper medical documentation. S1
explained that OWCP needed a physician’s narrative, but Complainant’s physician was
unwilling to provide it because he claimed that it was the responsibility of Complainant’s
primary care physician, who was no longer at the facility. Complainant sought the
intervention of the Acting Director, but the facility was unable to obtain the medical
documentation from Complainant’s medical providers. Additionally, at the meeting,
Complainant raised S1’s visits to his home. Following the meeting, the Acting Director
instructed S1 to not visit Complainant’s home.

With respect to the pictures of Complainant’s scissors, S1 stated that Complainant became
enraged during a conversation about a project and slammed his fists on the table. S1 asserted
that Complainant then picked up a pair of scissors, slammed them on the desk, and pointed
them at him. Further, Complainant told S1 to get out of his office and if he returned, he did
not know what he would do. S1’s secretary stated that Complainant appeared to be constantly
angry at S1 and the scissors indicated to her that he might be dangerous. As a result, S1 and
his secretary took pictures of them.

As to the December 2012 incident in Complainant’s office, the record shows that S1 attempted
to give Complainant a document entitled Memo for the Record – Information Feedback on
Leave Application Program. S1 denied blocking Complainant’s doorway or attempting to
0120141975

4
provoke him. Further, S1 stated that he offered to have coffee with Complainant to calm him
down.

Finally, regarding delays in his leave processing, S1 stated that Complainant had requested
LWOP, and his request required the signature of the Director due to the length of leave
requested. Thus, the delays occurred at the Director’s office. After Complainant’s approved
LWOP expired, S1 needed to mark Complainant absent without leave (AWOL) until his
FMLA leave had been approved. Subsequent delays were caused by Complainant’s health care
provider who did not sign the requisite documents until April 2013.

The Agency concluded that Complainant failed to show that the Agency’s actions were based
on discriminatory animus. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S1 harassed him and fabricated incidents to provoke him
into a physical confrontation so that he could be fired. Complainant claims that S1 tried to
coerce him into not filing an OWCP claim, and then delayed processing his paperwork.
Complainant argues that S1 attempted to cover up his violations of federal regulations.
Finally, Complainant contends that Agency officials provided false statements during the
investigation. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

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).

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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.
0120141975

5

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after 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 disability, management subjected him to a hostile work
environment based on several incidents where Agency officials took actions that seemed
adverse or disruptive to him. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish 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 animus played a role in
any of the Agency's actions. For example, regarding the sword, Complainant admitted that he
believed that S1’s sword/leadership award was not meant to harass him, and the record
indicates that it was subsequently removed. ROI, at 121, 151. As to his claim that S1 delayed
the processing of his OWCP claim, the record reveals that any delays were due to issues with
Complainant’s medical documentation. Id. at 191, 293. With respect to S1 visiting him at
home, S1 stated that he did so to give Complainant a card and to lift his spirits while he was
recovering from surgery. Id. at 164. S1 noted that he called prior to going, but never went
back after he was instructed not to visit Complainant at home. Id. at 164-65. As to
Complainant’s scissors, S1 stated that he took a picture of them after an angry incident with
Complainant. Id. at 166-67. S1’s secretary confirmed that Complainant often angrily yelled at
S1, and that she believed that Complainant may have been dangerous. Id. at 210-11.

With respect to the December 2012 confrontation and offensive remarks, S1 affirmed that he
stopped by Complainant’s office to inform him about leave options. ROI, at 70, 168.
Complainant became very angry, screamed profanities at S1, stormed down the hallway, and
left for the day. Id. at 168. S1 denied blocking the doorway and stated that he stepped out of
Complainant’s way all the way across the hallway. Id. Witnesses confirmed that Complainant
was the aggressor in the incident. Id. at 187, 232. Likewise, S1 stated that he attempted
several times to talk to Complainant or calm him down by asking if he wanted to get a cup of
coffee, but Complainant would get angry and yell at him. Id. at 169-70.

Finally, with regard to the processing of his leave requests, S1 affirmed that when
Complainant returned to work after his second surgery, he had no annual or sick leave
remaining. ROI, at 172. Complainant wished to use LWOP; however, any LWOP usage over
seven days needed to be approved by the Director. Id. S1 then put together a package, and
Complainant was approved to continue in LWOP status until April 15, 2013. Id. at 175. S1
noted that it took about two weeks for the Director’s office to approve it. Id. Complainant was
given information about applying for FMLA leave after his agreement with the Director
expired in April 2013. Id. Complainant’s FMLA approval was delayed due to insufficient
medical documentation. Id. at 195.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
0120141975

6
explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).

0120141975

7
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

November 1, 2016
Date