Cleo G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

0120181507 (E.E.O.C. Aug. 16, 2019)

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

Cleo G.,1
Complainant,

v.

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

Appeal No. 0120181507

Agency No. 200H-0518-2016103993

DECISION

On April 2, 2018, 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
March 15, 2018 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.

BACKGROUND

Complainant worked as a Nursing Assistant, GS-0621-05, at the Agency’s Medical Center in
Bedford, Massachusetts. On September 29, 2016, Complainant filed an EEO complaint in which
he alleged that the Agency subjected him to discrimination and a hostile work environment on the
basis of his national origin (African) when:

1. On March 9, 2016, the Nurse Manager (S1) told Complainant that he was verbally
disrespectful to a patient;

2. On March 10, 2016, S1 accused Complainant of inappropriately touching a male
patient’s private parts and told him to report for an interview by the Agency’s police;

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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3. On March 17, 2016, the Associate Director for Patient Services (S2) temporarily
reassigned Complainant to the call center pending completion of an investigation;

4. Between March 17 and June 2, 2016, management isolated Complainant and would not
respond to his inquiries about the investigation into his conduct; and

5. On June 2, 2016, S2 issued Complainant a proposed reprimand.2

According to a report of contact dated March 9, 2016, a patient (Patient A) reported to another
nursing assistant that Complainant was “being rude and a jerk to him” while providing care. IR
121. The nursing assistant noted that the patient pressed the call light approximately four times
during his patient care and when she answered, she could hear Complainant and Patient A using
foul language back and forth at each other. The nursing assistant stated that she heard Complainant
say, “why do you keep pressing the call light, nobody is going the help you.” The nursing assistant
stated that she finally went to the room and Patient A asked her to stay with him while Complainant
transferred him from his bed to his chair. That same day, the nursing assistant reported that
Complainant used foul language at another patient (Patient B) repeating what Patient B had said
and laughed at him.

On March 10, 2016, S1 spoke with Patient A who reported that Complainant was “a little rough.
He slaps me on the ass every day and I don’t like that.” When asked about foul language, Patient
A said “[t]here could have been a lot of yelling. I use as lot of foul language and [Complainant]
does too. We kid around a lot.” IR 122.

On March 17, 2016, management temporarily reassigned Complainant from Unit 4C to Unit 4A
while the matter was being investigated. S1, S2 and a Deputy Nurse Assistant all averred that in
temporarily reassigning Complainant, they were merely following established protocol requiring
that staff members named in allegations of patient abuse be separated from patients or residents
during the ensuing inquiry in order to ensure the safety of the patients and the staff. IR 96, 100-
01, 106, 126. On May 31, 2016, S2 issued Complainant a notice of proposed reprimand, but the
reprimand was rescinded on June 28, 2016 based on Complainant’s written and oral responses to
the inquiry. IR 101-02, 107, 127, 135.

At the conclusion of the ensuing investigation3, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.

2 The Agency dismissed claim (3) pursuant to 29 C.F.R. § 1614.107(a)(2) as a discrete act for
untimely EEO Counselor contact. The claim was included, however, as part of Complainant’s
overall hostile work environment claim.

3 We note that Complainant did not respond to the investigator’s request to provide an affidavit.
IR 64, 66.
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§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

Standard of 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”).

Hostile Work Environment

To establish a claim of harassment 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 classes; (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 antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). 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.

Here, Complainant asserted that based on his national origin, management officials subjected him
to a hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that the totality of the conduct at issue 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
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no persuasive evidence in the record that discriminatory animus played a role in any of the
Agency's actions. The record reflects that the alleged incidents were the result of reports that S1
and S2 had received from patients and other staff members naming Complainant in allegations that
involved possible patient abuse. The matter was investigated, and a proposed reprimand had been
issued to Complainant but was subsequently rescinded in light of Complainant’s written and oral
replies and consideration of all available evidence. Complainant has not provided an affidavit or
any other evidence tending to establish the existence of an unlawful discriminatory motive on the
part of S1, S2, or any other management official.

Complainant has not shown that he was subjected to a discriminatory hostile work environment.
Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not proffered any evidence from
which a reasonable fact finder could conclude that the Agency's explanation for its actions was
pretext for discrimination. As a result, the Commission finds that Complainant has not established
that he was subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, 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
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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
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

August 16, 2019
Date