0120160661
03-11-2016
Clemente M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clemente M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160661
Hearing No. 510-2012-00066X
Agency No. 200I06732011102591
DECISION
On December 13, 2015, Complainant filed an appeal from the Agency's November 9, 2015, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Foreman at the Agency's Medical Center facility in Tampa, Florida.
On May 5, 2011, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (White), sex (male), and disability (anxiety, depression, and fatigue). In support of his claim, Complainant alleged the following events occurred:
1. For the past several months, complainant's supervisor (Supervisor) and Chief Environmental Management Service (EMS), has continuously belittled, humiliated, and harassed him in public, most often in the presence of his employees, at meetings, or while doing the hospital rounds.
2. December 2010, the complainant applied for the Assistant Chief of EMS, all three candidates were interviewed, but the Supervisor did not select anyone from that certificate.
3. Shortly thereafter the Supervisor asked Complainant how he felt about the vacancy and the interviews, and stated that Complainant did not do well at all.
4. On February 7, 2011, and on March 21, 20111, while at a staffing meeting, the Supervisor ordered Complainant to start the meeting and not to wait for anyone else; when the meeting started the Supervisor interrupted him in a very loud voice and then took over the staff meeting.
5. On February 15, 2011, during a staff meeting, the Supervisor became very angry and blamed Complainant for not being able to make enough money with the bake sale to purchase the turkeys for a staff dinner.
6. On March 14, 2011, the Supervisor summoned Complainant and the Secretary to his office and in a loud voice started yelling at Complainant that he was not performing his duties as expected, and that he should consider retiring.
7. On March 15, 2011, the Supervisor yelled and screamed at Complainant when he asked if he could take time off that day to accompany his significant other who was having a PET scan (cancer) done that day.
8. On March 17, 2011, Complainant went to his physician due to stress and anxiety. Complainant was prescribed several medications and was put on extended leave while treatment continued.
9. In late March 2011, the Supervisor called Complainant's significant other to his office to talk about Complainant's performance, and asked him to encourage Complainant to retire.
10. In March 2011, Complainant informed the Supervisor that after his leave is used up he will retire (constructive discharge) as he could not handle the stress and the harassment at work anymore.
11. On April 19, 2011, the Chief of Human Resources (Chief) notified Complainant that the Agency had approved only 480 hours (from April 1 to June 27, 2011) of the 872 hours Family and Medical Leave Act (FMLA) hours he requested (from March 28 to August 26, 2011).
12. On June 10, 2011, the Assistant Chief Facilities Management (Assistant Chief) wrote to Complainant to inform him that since his FMLA period was to end on June 27, 2011, Complainant was expected to report to work on June 28, 2011, or to contact him to explore other options.
13. On June 10, 2011, the Assistant Chief wrote to Complainant to inform him that his VISTA account access would be temporarily suspended.
14. On June 27, 2011, the Chief wrote to Complainant to advise him that HR could not approve his FMLA request until 2012, and encouraged him to discuss his leave options with his supervisors.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to abide by the AJ's May 11, 2015, scheduling order. 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.
This appeal followed. On appeal, Complainant indicated that from September 2010 to June 2011, he had been subjected to harassment by the Supervisor. Complainant argued that the Supervisor's abusive behavior caused such a hostile work environment that Complainant had to seek medical assistance. Complainant took an extended leave and eventually retired when his FMLA leave had been exhausted. Complainant asserted that the actions of the Supervisor should not be tolerated. He requested that the Commission reverse the final decision and find for Complainant.
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").
We note that Complainant did not raise the AJ's dismissal on appeal. Therefore, the only issue before the Commission is the Agency's final decision finding no discrimination.
Harassment
Complainant claimed that the events listed were in support of his claim of harassment. It is well-settled that harassment based on an individual's sex, race, and disability is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct related to his membership in those classes; (3) the harassment complained of was based on sex, race, or disability; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
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, in this case, his race, sex and/or disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review of the record, we find that Complainant has not established that he was subjected to actionable harassment. Complainant stated in his affidavit that he believed these events occurred because of his protected bases. However, Complainant acknowledged that he had no evidence to support his assertion. The Supervisor denied that Complainant's protected bases were the reasons for any of the alleged actions. Based on the record, we find that Complainant has not proven that the alleged harassment occurred because of his race, sex and/or disability.
Furthermore, we find that the events listed by Complainant were not sufficiently severe or pervasive enough to create a hostile work environment. We note that Complainant failed to expand further on the alleged harassment beyond listing them in his complaint. He asserted that he was belittled and downgraded by the Supervisor. Complainant noted that the Supervisor would interrupt him at meetings and finish them himself. As a result of the events listed in his complaint, Complainant sought medical treatment as indicated in event (8).
In response to event (11), the Supervisor indicated that the Agency provided Complainant with the maximum allowed number of hours of FMLA leave, namely 480 hours. The Supervisor averred that Complainant sought more hours than what is permitted under FMLA for 2011. Therefore, Complainant would only be able to make a request for FMLA leave in 2012 as indicated in event (14). Further, when Complainant's FMLA leave had exhausted in 2011, Complainant was expected to return as noted in event (12).
The Supervisor asserted that he believed that Complainant was his leadership counterpart and that his leadership style may have bothered Complainant. The Supervisor denied that the events, namely events (1), (3), (4), (5), (6), and (7), were to create a hostile work environment or that some of the events even occurred as Complainant suggested. In response to event (2), the Supervisor indicated that he was not on the selection board for the position. For example, he denied that event (5) occurred because he never asked Complainant to collect for the turkeys. He also denied that he suggested that Complainant retire as alleged in event (11). As for event (13), the Supervisor noted that if you do not use your VISTA account in 30 days, it is temporarily suspended. He indicated that this was common for employees and easily restored.
Based on the totality of the record before the Commission, we find that Complainant failed to show that the events listed in support of his claim of harassment in fact happened as he alleged. Further, Complainant did not establish that the events, taken together as a whole, were not severe or pervasive enough to create a hostile work environment. Therefore, we conclude that Complainant has not shown that he was subjected to unlawful harassment based on his race, sex, and/or disability.
Constructive Discharge
Complainant also asserted that, due to the hostile work environment, he had to retire. As such, Complainant argued that he was constructively discharged from the Agency. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, Complainant failed to provide any evidence to support his assertion that the conduct the created the intolerable working condition constituted discrimination. Therefore, we conclude that Complainant has not established his claim of constructive discharge.
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 no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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).
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
March 11, 2016
________________
Date
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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