Floyd L.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0120150737 (E.E.O.C. Apr. 27, 2017)

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

Floyd L.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150737

Hearing No. 420-2014-00211X

Agency No. 200I-0619-2014100818

DECISION

On December 8, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 24, 2014, 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 Agency’s final order.

BACKGROUND

Complainant worked as a General Engineer within the Central Alabama Veterans Health Care
System (CAVHCS) in Tuskegee, Alabama, where he was assigned to energy management. On
January 16, 2014, he filed an EEO complaint alleging that he was subjected to a hostile work
environment when, on October 29, 2013, the Assistant Engineering Services Chief, his
immediate supervisor (S1), and the Engineering Services Chief, his second-line supervisor
(S2), retaliated against him for filing a previous EEO complaint by giving him an overall rating
of “excellent” rather than “outstanding” on his performance appraisal for Fiscal Year (FY)
2013. In addition to challenging the overall rating, Complainant alleged that S1, who had
prepared the rating, had disregarded the self-assessment that Complainant had submitted as

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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input. He further alleged that S1 had been improperly substituted for S2 as the rating official of
record.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case
granted the Agency’s October 9, 2014, motion for summary judgment over Complainant’s
objections. The AJ issued a decision on November 6, 2014, without holding a hearing. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

Complainant’s performance appraisal consisted of seven elements: (1) program management;
(2) contract administration; (3) customer service; (4) infection control; (5) ADP security; (6)
safety; and (7) organizational stewardship. IR 269, 272. Of these, elements (1), (2), (3), and
(7) were designated as critical. IR 210. For FY 2013, S1 rated Complainant as “exceptional”
on all four critical elements and as “fully successful” on elements (4), (5), and (6), the non-
critical elements. IR 210, 272. Consequently, S1, who had signed off on the appraisal as the
rating official, had awarded him an overall performance rating of “excellent.” IR 273. S2 had
concurred with the rating. IR 183, 185.

As part of the appraisal process, employees were required to submit a self-assessment of their
performance during the fiscal year. Complainant characterized his performance as
outstanding, listing twenty-six accomplishments on his self-assessment form and noting that he
had designed programs that met the Agency’s energy, water, fuel, and greenhouse gas
reduction mandates. IR 275-78. S1 averred that he had considered Complainant’s self-
assessment and had used that assessment to arrive at the ratings he had given Complainant. IR
208, 210-11, 224.

S2 had been Complainant’s first line supervisor prior to May 2013, and had prepared
Complainant’s annual performance appraisals for FY 2011 and FY 2012. For FY 2011, S2
had rated Complainant as “fully successful” on all seven performance elements and for FY
2012, she had rated Complainant as “exceptional” on one critical element and two non-critical
elements and as “fully successful” on the remaining elements. For both years, S2 had given
Complainant an overall rating of “fully successful.” IR 279, 282-84, 285, 288-90. In a
memorandum addressed to Complainant and dated May 8, 2013, S2 notified Complainant that
as of May 26, 2013, S1 would be his first-line supervisor and as such, would be responsible
for preparing Complainant’s annual performance appraisal. IR 186, 201, 273, 346.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he
finds that there are no genuine issues of material fact that would warrant a hearing. See 29
C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317,
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322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
“material” if it has the potential to affect the outcome of the case. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

Harassment of employees that would not occur but for their membership in statutorily
protected groups is unlawful if sufficiently patterned or pervasive. Wibstad v. U.S. Postal
Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). To establish his claim of retaliatory
harassment Complainant must show: (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).

With respect to first prong of the harassment test, Complainant had filed a previous EEO
complaint, Agency No. 2001-0619-2013101566, in which he had named S1 and S2, both of
whom provided sworn statements to the investigator. IR 182-83, 205, 307, 335-36. By virtue
of having engaged in the EEO process, Complainant is a member of a class of individuals
protected by Title VII. We also agree that, from Complainant’s own subjective perspective,
receiving a lower-than-anticipated performance evaluation could be considered unwelcome
conduct, which would enable Complainant to satisfy the second prong of the test.

Complainant’s contention that he is entitled to an overall performance appraisal rating of
outstanding for FY 2013 rests upon his belief that because he did not receive a mid-term
appraisal for that year, he would automatically receive an outstanding rating as long as he was
rated exceptional on the four critical elements. IR 144. S1 and a Human Resources Specialist
averred that this was not true, and that to get an outstanding, one would have to achieve a
rating of exceptional on all seven performance elements. IR 207, 241-42. S1 also stated that
he did not believe that Complainant had any performance deficiencies. IR 204. In essence, S1
reaffirmed that he based the appraisal rating he gave Complainant for FY 2013 on nothing
more than his assessment of Complainant’s performance during that year. Complainant has
presented neither affidavits, declarations, sworn statements from witnesses other than himself,
nor documents which contradict the explanation provided by S1 or which call his veracity into
question. Consequently, we agree with the AJ that no genuine issue of material fact exists
regarding the existence of a connection between Complainant’s prior EEO complaint and S1’s
decision to rate him as “excellent” rather than “outstanding” for FY 2013. As such,
Complainant has failed to satisfy the third prong of the harassment analysis.

Even if we were to assume that such a causal connection existed, Complainant would still have
to raise a genuine issue of material fact as to whether being given a performance appraisal
rating of excellent rather than outstanding amounted to conduct so severe or pervasive that a
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reasonable person in his position would have considered it hostile or abusive. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Anti-discrimination statutes are not general
civility codes designed to protect against the “ordinary tribulations” of the workplace. See
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the
Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general
workplace disputes, trivial slights and petty annoyances between an alleged harasser and a
Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory
conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments,
instructions, and admonishments are by definition neither severe nor pervasive enough to rise
to a level of abuse on par with a racial epithet or otherwise engender a hostile work
environment. Complainant v. Dept. of State, EEOC Appeal No. 0120123299 (February 25,
2015). Complainant has not shown that the receipt of an appraisal rating of excellent rather
than outstanding is severe enough to alter his work environment. Indeed, quite the opposite is
true. The ratings that S1 and S2 had given to Complainant between FY 2011 and FY 2013
showed steady improvement in his performance, from receiving no exceptional ratings on any
critical element for FY 2011 to receiving an exceptional rating for one critical element for FY
2012 to finally receiving exceptional ratings on all four critical elements for FY 2013. We
therefore find, as did the AJ, that no genuine issue of material fact exists as to whether
Complainant’s receipt of an annual performance appraisal rating of excellent was severe or
pervasive enough to alter his work environment.

On appeal, Complainant contends that the performance appraisal rating for FY 2013 constitutes
a tangible employment action. Even assuming it is, the consequence of such a determination
would merely be that the fifth prong of the harassment analysis would not be necessary to
support a finding of liability. But Complainant would still have to raise a genuine issue of
material fact as to the existence of a causal connection between his prior EEO complaint and
the appraisal rating. Because he has not, whether or not the appraisal rating constitutes a
tangible employment action has no impact upon the ultimate outcome of this case. See e.g.
Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October 15,
2015) (if Complainant fails to raise a genuine issue of material fact as to the existence of
discriminatory intent, no further inquiry would be necessary as to whether the incidents
complained of rise to the level of harassment or constitute separate acts of discrimination under
disparate treatment theory).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision implementing the AJ’s decision finding Complainant was not
discriminated against as alleged.

0120150737

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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).

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 (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

April 27, 2017
Date