Dominique B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120180919 (E.E.O.C. Aug. 7, 2019)

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

Dominique B.,1
Complainant,

v.

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

Appeal No. 0120180919

Agency No. 2003-0321-2016102819

DECISION

On January 10, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 4, 2017 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Records Management Officer at the
Agency’s VA Regional Office in New Orleans, Louisiana.

On July 1, 2016, Complainant filed the instant formal complaint. Complainant claimed that he
was subjected to harassment/a hostile work environment based on race (Caucasian) and sex
(male) when:

1. on September 15, 2015, the Chief of Support Services Division denied his career
advancement when she did not properly disclose the duties of the facility manager, on
a job announcement;

2. on December 16, 2015, the Chief of Support Services Division issued him a proposed
admonishment;

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 January 29, 2016, the Assistant Chief of the Support Services Division instructed
him to train the Facility Manager to be his backup to issue Personal Identification
Verification (PIV) badges;

4. from January 2016 through March 23, 2016, the Chief of Support Services Division
required him to serve as the primary issuer of PIV badges; and

5. on March 17, 2016, he was forced to retire from his position as Records
Management/Privacy Officer.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its December 4, 2017 final decision, the Agency found no discrimination based on the
evidence developed during the investigation.

The instant appeal followed.

ANALYSIS AND FINDINGS

Hostile Work Environment (claims 1- 4)

To establish a claim of hostile environment 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, 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 bases – in this case, his race and sex. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

During the relevant period, Complainant was a Records Management Officer at the VA Regional
Office in New Orleans. Complainant stated that he had performed all PIV associated duties
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since 2010. Complainant’s first-line supervisor was the Assistant Chief for the Support Services
Division and his second-line supervisor was the Chief for the Support Services Division.

Regarding claim 1, Complainant asserted that on September 15, 2015, the Chief denied his
career advancement when she did not properly disclose the duties of the facility manager on a
job announcement.

Complainant alleged that the Chief listed as one of the duties associated with the Facility
Manager position, those duties associated with issuing PIV badges. Complainant stated that after
an individual was selected for the position, the Chief only assigned the new Facility Manager
back-up PIV duties. Complainant claimed that if he had known the position would only be
assigned backup PIV duties, he would have applied for the position himself.

The Chief, Support Service Division (black female) denied telling Complainant that the Support
Services Specialist position was going to include primary PIV issuer duties. She stated,
however, that she had mentioned that the position would include primary PIV Manager and
Sponsor duties.

Regarding claim 2, Complainant alleged that on December 16, 2015, the Chief issued him a
proposed admonishment.

The Chief acknowledged issuing Complainant a proposed admonishment, because Complainant
sent an inappropriate email to the Information Security Officer (ISO) at the facility stating that
employees, including the ISO’s daughter, could end up dead due to improper facility access.

The Assistant Director (white female) stated that by the time she reviewed Complainant’s
proposed admonishment, Complainant had already informed Human Resources that he was
retiring so she did not make a final decision regarding the proposed admonishment and it was
never part of Complainant’s official personnel record.

Regarding claim 3, Complainant alleged that on January 29, 2016, the Assistant Chief of the
Support Services Division instructed him to train the Facility Manager to be his backup to issue
PIV badges.

The Assistant Chief (black female) was Complainant’s supervisor when the Chief was out of the
office. The Assistant Chief stated that on January 29, 2016, she instructed Complainant to train
the Facility Manager as Complainant’s backup as the PIV issuer in accordance with the Chief’s
instructions.

Regarding claim 4, Complainant asserted that from January 2016 through March 23, 2016, the
Chief of Support Services Division required him to serve as the primary issuer of PIV badges.

The Chief explained that in 2013 or 2014, Complainant first started doing primary issuer duties
and the subject position was later filled by the Facility Manager who was upgraded to a GS-11 to
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include PIV oversight duties, but not to include being the primary PIV issuer. Complainant’s job
continued to include the primary PIV issuer duties after the Facility Manager was trained to be
the backup PIV issuer in January 2016. The Chief noted that following Complainant’s
retirement, Complainant’s replacement took over the primary PIV issuer duties and the Facility
Manager continued to be the backup PIV issuer.

Given the above discussion of the referenced claims, we determine that Complainant was not
subjected to a hostile work environment based on discriminatory factors for his race and sex.

Constructive Discharge (claim 5)

Regarding claim 5, Complainant asserted that on March 17, 2016, he was forced to retire from
his position as Records Management/Privacy Officer. Complainant claimed that he felt he would
have to continue issuing PIV cards until he retired. The Chief explained that she told
Complainant that the PIV issuer responsibilities would be given to the Facility Manager but even
after the Facility Manager was hired, Complainant was still to continue performing PIV issuer
duties.

Further, Complainant claimed that before notifying management of his retirement notice, he
informed the Chief that he would have to retire due to health concerns and because the PIV
issuer duties not being removed, but she did not respond.

The Chief stated that she was not aware that Complainant was retiring prior to him sending his
retirement notification email. The record contains a copy of Complainant’s email dated March
17, 2016, which states, “The memorandum is to notify VA Management of my decision to retire
from federal employment under the MRA +10 option. My last day at VBA New Orleans (321)
will be March 31, 2016 – retirement beginning April 1, 2016. Please being the process
immediately.”

In essence, by arguing his resignation was coerced by the Agency's actions, Complainant is
raising a claim that he was constructively discharged. The Commission has established three
elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in the complainant's position would have found the working conditions
intolerable; (2) the conduct that constituted discrimination against the complainant created the
intolerable working conditions; and (3) the complainant's involuntary resignation resulted from
the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal
No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No.
05940688 (Apr. 13, 1995).

Here, in light of our finding that Complainant was not subjected to a hostile work environment as
discussed in some detail above, we conclude that Complainant has failed to prove that his
resignation was a constructive discharge from the Agency.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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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.
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
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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 7, 2019
Date