Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120113850 (E.E.O.C. Apr. 4, 2014)

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

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120113850

Hearing No. 430-2010-00087X

Agency No. 2004-0658-2009102874

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 12, 2011 final order 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief of Podiatric
Medicine and Surgery at the Agency’s Medical Center in Salem, Virginia. Complainant and a
nurse (CW1) were initially close friends and enjoyed a good working relationship. Both
shared details about their personal lives, socialized outside of work, and Complainant had
confided to CW1 that he was gay. Around January 7, 2008, Complainant was preparing to go
to a convention out of town when CW1 told Complainant that he looked “uptight” and that he
“should get some” while on his trip. While at the convention, Complainant spoke with an
attendee who encouraged Complainant to set professional boundaries with his staff. When
Complainant returned, he informed the staff, including CW1, that he had been advised to keep
his work relationships professional. As a result, Complainant’s relationship with CW1 and
other staff members changed, and he began withdrawing socially from them.

Sometime after Complainant returned, CW1 told Complainant that she had talked to a cashier
at a store about dating Complainant. Complainant told CW1 that he did not need any help
finding dates and began to distance himself further from CW1. In addition, Complainant
stopped discussing personal issues with CW1 which upset CW1. Moreover, Complainant had
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been assisting CW1 in her efforts to secure a step and grade increase; however, he notified her
that he could no longer help her. Complainant decided to work in a separate treatment room
from CW1 after they had worked in the same room for several years. When patients asked
CW1 about them working in different treatment rooms, CW1 responded that she and
Complainant “got a divorce.” Soon after their friendship ended, CW1 began challenging
Complainant during meetings and made negative remarks to him.

In September 2008, Complainant went out on sick leave. CW1 sent Complainant a get-well
card that had been signed by numerous staff members. Complainant was upset by the card
because it had a picture of a fictitious male doctor from the television show “Grey’s Anatomy”
and he believed that the card would disclose his sexuality to some staff members who did not
know. CW1 later bought the same card and placed it on a bulletin board behind her desk.

At the end of January 2009, one of Complainant’s patients was upset because his surgery had
been rescheduled. CW1 placed a note in the patient’s electronic medical file indicating that the
patient was upset with Complainant. Complainant was angered by the note and called the
patient to discuss the situation. The patient later wrote letters to the facility stating that he did
not have a problem with Complainant, and Complainant’s supervisor (S1) later edited the note
in the system. Additionally, around that time, Complainant believed that CW1 was scheduling
more surgery consults to another doctor and less to him. Complainant complained to S1 and
his second-level supervisor (S2); however, S1 reviewed the record and did not see a problem
with the scheduling.

Management officials held a team meeting to address the overall atmosphere in the Podiatry
unit. At the end of February, Complainant and CW1 participated in an alternative dispute
resolution (ADR) session to attempt to settle their disputes. The ADR session did not greatly
improve the relationship between Complainant and CW1. Thereafter, Complainant attended a
convention out of town. CW1 contacted another employee who was a friend of Complainant’s
to ask if he knew when Complainant would return. The employee notified Complainant that
CW1 had called him which angered Complainant. When Complainant returned, he discovered
that someone had rummaged through his files and other documents from his office, and he
spoke with the police about it. There is no evidence indicating that anyone was ever identified
as responsible for the incident.

In April 2009, Complainant was notified that an Administrative Board of Investigation (ABI)
was being convened to investigate allegations against him based on two anonymous complaints
sent to the Office of Inspector General. The allegations concerned ordering practices and
documentation associated with bone stimulators, travel, equipment ordered/placed in
Complainant’s home setting, supervision and boundary issues with a student trainee, and
possible falsification of clinic workload statistics.

Complainant and CW1 continued to have interpersonal conflicts. CW1 did not include
Complainant in office social activities and was angry when communicating with him. In May
2009, the office moved to a new location. In the process of setting up the new work area,
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CW1 took a chair from Complainant’s office without permission and dumped documents on his
desk. On another occasion, Complainant believed that someone had attempted to open his file
cabinet and moved his desk without permission. In June 2009, Complainant learned that
someone had jammed metal into his door lock making it difficult to unlock. Complainant
believed that CW1 was responsible for these incidents.

On May 28, 2009, the ABI issued its investigative report. The ABI found that Complainant’s
social interaction with the students was not appropriate. S1 was directed to initiate corrective
action with Complainant about setting better boundaries with the students.

On June 19, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male) and in reprisal for prior protected EEO as evidenced by multiple incidents including,
inter alia, a co-worker (CW1) made inappropriate sexual comments; verbally abused him;
attempted to set him up on a date; excluded him from office birthday parties and other social
events; sent him an inappropriate birthday card signed by most of the surgical staff that implied
his sexuality; someone ransacked his file cabinets and jammed metal into his door lock; and
Agency officials initiated an Administrative Board of Investigation against him.1

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on June 1, 2011, and issued a decision on June 28, 2011.

In her decision, the AJ determined that Complainant failed to show that CW1 subjected him to
a sexually hostile work environment. The AJ found that the CW1’s alleged comments were
not sufficiently severe or pervasive to establish a sexually hostile work environment. Next, the
AJ determined that Complainant had not shown that he was subjected to non-sexual harassment
as there was no evidence that CW1 was motivated by discriminatory animus. The AJ found
that the evidence showed that CW1 was hostile towards Complainant because he ended their
friendship and changed their working relationship. The AJ noted that Complainant himself
testified that he believed that CW1 took the alleged harassing actions because she was no
longer allowed to be part of his life. Complainant also argued that the Agency would have
responded differently if he were female and compared himself to a female employee who
alleged that a male employee was sexually harassing her. The AJ did not find his arguments
on this point persuasive. The AJ noted that Complainant admitted that he did not complain to
management that CW1 was sexually harassing him. The AJ concluded that CW1’s conduct
was based on Complainant’s decision to change the nature of their working relationship and
friendship. As a result, the AJ concluded that Complainant had not established a hostile work
environment based on sex.

1 Prior to the hearing, Complainant withdrew a claim regarding someone initiating a tort claim
against him.
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Regarding Complainant’s reprisal-based harassment claim, Complainant claimed that his
protected activity was objecting to CW1’s sexual comments, complaining to management about
her, and contacting an EEO counselor and filing a complaint. The AJ determined that there
was no evidence that CW1 retaliated against him because of any of his protected activity.
Complainant testified that he did not respond when CW1 commented that he should “get
some” and, when CW1 told him about talking to the cashier, he only told her that he did not
need her help. Complainant later told CW1 and other staff members that he had been advised
to keep his relationship with the staff on a professional level, but there was no evidence that
Complainant told CW1 that he found her actions to be offensive or objectionable. Further,
there was no evidence that CW1 thought that Complainant changed their relationship because
of the two incidents or that CW1 was aware that Complainant alleged that she was
discriminating against him prior to the EEO investigator contacting her in December 2009.
The AJ again concluded that CW1’s actions may have been retaliatory, but for Complainant’s
decision to change their working relationship and friendship, not for his protected EEO
activity.

As to the Agency convening the ABI to investigate allegations against Complainant, the AJ
found that Complainant had not shown that the Agency acted with discriminatory or retaliatory
animus. The evidence showed that the Agency initiated the investigation in response to two
anonymous complaints received by the Office of Inspector General. Even if CW1 placed the
anonymous complaints, there is no evidence that any Agency officials were aware of CW1’s
role or motivation. Therefore, the AJ found that there was no evidence that the Agency acted
unreasonably in investigating the allegations.

The AJ concluded that Complainant failed to establish by a preponderance of the evidence that
any of the alleged incidents were based on sex or reprisal. As a result, the AJ found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding that Complainant was not subjected
to a hostile work environment. Complainant contends that CW1’s conduct and comments
regarding Complainant’s sexual relationships were severe and unwelcome. Complainant
further argues that CW1 retaliated against him when he complained to management and after
they engaged in ADR. Finally, Complainant alleges that management did nothing to intervene.
Accordingly, Complainant requests that the Commission reverse the final order and award him
damages.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Upon review of the record, the Commission discerns no basis to disturb the AJ's decision.
The AJ's findings of fact are supported by substantial evidence, and her legal conclusions are
consistent with the Commission's policy and precedent. Complainant failed to prove that
CW1’s actions were severe or pervasive enough to create a hostile work environment, and he
also failed to prove that they were motivated by his protected classes. The Commission notes
that Title VII is not a civility code. Rather, it forbids “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). In addition, Complainant failed to show that the Agency’s
initiation of an ABI into allegations against him was unlawfully motivated.

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
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employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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.
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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 4, 2014