0120130919
02-23-2016
Floyd L.,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
Floyd L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130919
Hearing No. 450-2011-00112X
Agency Nos. 2003-0674-2010100971
2003-0674-2010101518
DECISION
Complainant filed an appeal from the Agency's November 14, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) abused her discretion during the hearing, and whether substantial evidence supports the AJ's finding that Complainant did not prove that he was subjected to disparate treatment and harassment because of his sex and prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Kinesiotherapist, GS-11, in the Agency's Physical Medicine and Rehabilitation Service, Central Texas Veterans Health Care System (CTVHCS), in Temple, Texas.
On January 14, 2010 and March 2, 2010, Complainant filed EEO complaints in which he alleged that the Agency harassed and discriminated against him2 on the basis of sex (male) and in reprisal for prior protected EEO activity when:
1. On November 9, 2009, Complainant's supervisor (S1) rated him "fully successful" on his annual performance appraisal;
2. On three occasions in November 2009 and December 2009, management denied Complainant's request for overtime compensation;
3. On November 19, 2009, management denied Complainant's request for "use or lose" annual leave for the week of December 7, 2009;
4. On January 4, 2010, management denied Complainant's request to carry over 42.5 hours of annual leave into calendar year 2010. On January 6, 2010, the Agency's Director approved Complainant's request with the stipulation that the leave be used in the first quarter of the year;
5. Managers assigned Complainant to cover three to four clinics when the unit was short-staffed;
6. On August 16, 2009, Complainant's supervisor (S1) stated, "You know how sometimes men don't listen and they're lazy";
7. S1 did not issue his Hybrid Title 38 Functional Statement, VA Performance Plan, or performance standards until August 25, 2009;
8. On August 25, 2009, S1 issued his mid-term progress review, which was the same day that she issued his performance plan and performance standards;
9. On November 3, 4, 10, 13, 19, 20, 2009, and the week of November 23, 2009, management harassed Complainant concerning his request for 40 hours of authorized absence (AA) to attend the American Kinesiotherapy Association (AKTA) annual executive board meeting and concerning his request for 40 hours of "use or lose" annual leave for the week of December 7, 2009;
10. On November 9, 2009, S1 rated Complainant "fully successful" on his annual performance appraisal;
11. On November 9, 2009, during a meeting to discuss Complainant's performance appraisal, S1 said, "I'm not going to get into a pissing contest with you."
12. On November 12, 2009, S1 belittled Complainant in front of staff when she stated "We are not going to go there" in response to a statement made by Complainant;
13. On November 9, 2009, S1 issued a new and modified performance plan and performance standards for his position without notice to or input from Complainant, and without approval from the union. Additionally, the performance plans and standards contained seven key elements and 40 performance standards, which was not normal;
14. On November 9, 2009, November 27, 2009, and December 11, 2009, management denied Complainant's request for overtime compensation;
15. On November 19, 2009, management denied Complainant's request for "use or lose" annual leave for the week of December 7, 2009;
16. On December 21, 2009, S1 reissued Complainant's annual performance appraisal in which she again rated him "fully successful." Additionally, S1 attempted to coerce Complainant into signing and backdating the appraisal;
17. On December 21, 2009, and November 20, 2009, management scheduled meetings with Complainant without offering him the right of union representation;
18. On January 3, 2010, management inappropriately included additional information on Complainant's Notification of Personnel Action (SF-50) form that had nothing to do with the salary and/or locality pay increase intended for all employees;
19. On January 4, 2010, management denied Complainant's request to carry over 42.5 hours of annual leave into calendar year 2010. Subsequently, on January 6, 2010, the Director approved the request with the stipulation that leave be used in the first quarter of the year;
20. On January 8, 2010, during a meeting with S1 and an Employee Relations and Labor Relations Specialist, S1 and the Employee and Labor Relations Specialist tried to coerce Complainant into agreeing to allow the "technicalities" by management, and into allowing management to use portions of the November 9, 2009, and December 21, 2009, appraisals to produce a combined single document;
21. On January 15, 2010, Complainant requested specific information from the Chief of Human Resources (HR Chief) concerning who had access and input into Complainant's official personnel file (OPF). The requested information was never provided;
22. On an ongoing basis, S1 failed to communicate with him in the same manner she did with other therapists on patient concerns;
23. On an ongoing basis, the Clinical Director, Chief, and S1 assigned him to "cover three to four clinics" when the unit was short-staffed;
24. On January 22, 2010, management failed and/or delayed promoting Complainant to the position of Planetree3 Specialist, GS-12;
25. On January 22, 2010, management failed and/or delayed promoting Complainant to the position of Health Systems Specialist, GS-12;
26. On February 11, 2010, S1 failed to provide Complainant with a requested weekly appointment book;
27. On February 16, 2010, management denied Complainant the opportunity to apply to and attend the 2010 Leadership Education and Development (LEAD) training. Additionally, management refused to designate Complainant's application for the LEAD program as "the applicant is a high performer in his/her current position;"
28. From February 10, 2010, until March 11, 2010, management failed to and/or delayed promoting Complainant to Health Systems Specialist, GS-13;
29. On September 30, 2009, after Complainant notified S1 of his weekly appointment book order, S1 responded in a demeaning and degrading manner by stating, "Is this the regular brain book, or something different?"
30. On January 22, 2010, management failed to and/or delayed promoting Complainant to the position of Planetree Specialist, GS-12;
31. On January 22, 2010, management failed to and/or delayed promoting Complainant to the position of Health Systems Specialist, GS-12;
32. On January 25, 2010, Complainant emailed a Human Resources Specialist (HR Specialist) to request assistance/direction regarding Complainant's restored annual leave in order to comply with the Director's directions. The HR Specialist failed to respond to Complainant's email;
33. On February 3, 2010, management failed to respond to Complainant's annual leave request to attend a meeting regarding his EEO complaints;
34. On February 3, 2010, in response to Complainant's request for annual leave, S1 stated in a very demeaning and degrading manner, "I'm with a patient, do you believe that you are more important than my patient?"
35. On February 5, 2010, S1 sent him a reminder email directing him to include the physician as an additional signer on Complainant's initial assessment and reassessment notes regarding two specific veteran patients;
36. On February 9, 2010, S1 scheduled a meeting to be attended by Complainant, an HR Specialist, and the Clinical Director to reissue Complainant's 2010 performance standards without first giving Complainant an opportunity to have union representation present;
37. On February 11, 2010, S1 failed to provide Complainant with his requested weekly appointment book;
38. On February 6, 2010, management denied Complainant the opportunity to apply and to attend the 2010 LEAD training. Additionally, management refused to designate Complainant's application for the LEAD program as "the applicant is a high performer in his/her current position;"
39. On February 22, 2010, Complainant emailed the Human Resources Manager regarding Complainant's restored annual leave. In his response, the Human Resources Manager did not fully respond and/or provide requested assistance/information;
40. On February 22, 2010, S1 sent him a reminder email directing him to include the physician as an additional signer on the Complainant's initial assessment and reassessment notes;
41. On February 22, 2010, Complainant sent S1 an email asking for clarification and instructions concerning her February 6, 2010 email. S1 failed to respond; and
42. On various dates between February 10, 2010, and March 11, 2010, management failed to and/or delayed promoting Complainant to the position of Health Systems Specialist, GS-13.
Hearing Testimony before the AJ
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 timely requested a hearing, which the AJ initially held on December 14, 15, and 16, 2011. Complainant then filed a request to continue the hearing at a later date because his representative had a medical emergency.
On February 7, 2012, the AJ granted Complainant's request by dismissing the matter without prejudice until Complainant notified the Commission as to when he and his representative could continue with the hearing. In an order dated February 8, 2012, the AJ clarified that Complainant must notify the Commission in writing by May 21, 2012, of his representative's ability to continue with the hearing. The AJ further stated that the Agency was authorized to obtain a copy of the transcript from the December 2011 hearings and to release a copy of the transcript to Complainant because the hearing would not be resumed for at least six months because of Complainant's request. Complainant objected to allowing the Agency to have access to the transcript of the December 2011 hearing before hearings were resumed, and on February 15, 2012, the AJ rescinded the portion of her order pertaining to the transcript for the December 2011 hearings.
On May 19, 2012, Complainant filed a request to continue the hearing. On May 25, 2012, the Agency filed a response in which it maintained that it was prepared to resume the hearing on or after July 20, 2012. On June 4, 2012, the AJ issued an order that rescheduled the resumption of the hearing for August 27 and 28, 2012.
During the hearing, Complainant testified that positions were canceled when he applied for them. Regarding the GS-12 Health Systems Specialist position, Complainant testified that this was not an internal position, but he was qualified for the position because of his complaints about the previous job announcements. Regarding Complainant's August 2009 "fully successful" performance appraisal, Complainant was rated fully successful in "documentation and communication" (D&C) but "excellent" in all other areas, and was given the same rating when the appraisal was reissued on November 9, 2009. Complainant was again rated "fully successful" on his reissued appraisal on December 21, 2009.
Regarding Complainant's hostile work environment claims, Complainant called 18 witnesses to testify about these matters. Complainant maintained that things in the office were just fine until it was time for him to attend required training that was mandated by an EEO settlement agreement that resolved a previous complaint. Complainant testified that he was harassed when management attempted to coerce him to sign and backdate his December 2009 appraisal, and an HR Specialist asked him to take the three different first pages of the appraisal and combine them into one page. Complainant further testified that he thought that this would have been a fraudulent action and, therefore, he did not agree to backdate the document. Complainant also testified that S1 did not provide him with a weekly appointment book in February 2010. Complainant further testified that he applied for the Agency's LEAD training or the internal leadership program on February 16, 2010; S1 approved him for the training, but checked the box that stated that he was interested in a higher level position, which Complainant thought was discriminatory because S1 did not check the box that said that the "applicant is a high performer in her/his current position."
Complainant further testified that when he emailed S1 to request a weekly appointment book, S1 responded by asking him if this was the regular appointment "brain book or something else." Complainant also testified that on February 3, 2010, management failed to respond to his request to attend a meeting regarding his EEO complaint, and S1 said, "I'm with a patient; do you believe you are more important than my patient?" Complainant testified that on January 25, 2010, he emailed an HR Specialist about the Agency's directive regarding restored carry-over leave, but the HR Specialist did not respond. Complainant stated that the HR Chief later informed him that he had two years to use his carry-over leave, and his leave request was approved in the computer system. Complainant further testified that he was allowed to carry over his leave for a two-year period and was not required to use it in the first quarter of 2010. Complainant also testified that he attended the ATKA meeting in November and December 2009 and was not charged annual or administrative leave because of his attendance.
The Director testified that he initially approved Complainant's request to carry over leave into 2010, with the provision that he must take the carry-over leave within the first quarter of 2010. The Director further testified that he later learned that an employee had two years to take carry-over leave, and Human Resources corrected his mistake.
The selecting official testified that Complainant was listed on the certificate of eligibles for the Planetree Specialist, GS-12, position, but the selectee was the best candidate for the position because she had more customer service experience and a commitment to the "Planetree concept." Regarding the GS-12 Health Systems Specialist position, the selecting official testified that the selectee was chosen because she had more direct patient care experience as a registered nurse.
Regarding the GS-13 Health Systems Specialist position, the selecting official testified that Complainant was deemed not qualified for this position because he did not have one year time-in-grade at the GS-12 level, but Complainant believed he should have had the opportunity to compete for the position. An HR Specialist testified that Complainant was not qualified for the GS-13 position because he did not meet the GS-12 one year time-in-grade requirement, and only a form SF-50 was sufficient to establish time-in-grade at the GS-12 level. The HR Specialist testified that Complainant provided a letter that indicated that he served in a GS-12 position, but this letter was not sufficient because only an SF-50 would suffice.
The HR Chief testified that supervisors should issue performance standards within thirty days of an employee's arrival, and that employees were required to work under performance standards for ninety days before being reviewed. The HR Chief also testified that if an employee refuses to sign for receipt of the performance standard, it is so noted. The HR Chief further testified that it was unusual that Complainant had three different dates on the cover sheet of his appraisal, but Complainant was rated exceptional in all categories except documentation and communication, which was rated fully successful. The HR Chief also testified that he initially recommended that Complainant be denied his request to carry over leave because Complainant had sufficient time left in the year to exhaust his leave. However, the HR Chief stated that an HR supervisor later informed Complainant that he had two years to take use or lose annual leave.
S1 testified that she approved Complainant for LEAD training and checked the box on the form that stated that "employee has a desire to learn, work hard, and move into a leadership position." S1 explained that Complainant was not a high performer in her opinion, and therefore she could not check the box that indicated that he was a high performer. S1 testified that she did not have Complainant sign his performance standards within 30 days of starting work at the facility, which was in violation of the regulations. S1 further testified that she and Human Resources attempted to rectify the three dates on Complainant's performance appraisal with a statement of explanation.
S1 also testified that Complainant did not deserve an excellent rating in the documentation and communication element because Complainant's progress notes had missing information regarding goals and status, and whenever she told Complainant about the problem, he would disagree with her. S1 further testified that Complainant did not receive his 2010 calendar until March 2010 because of an oversight. S1 testified that she was instructed by the Legal Office to allow Complainant to attend requested LEAD training in October 2009, but she did not know that this training was related to the terms of an EEO settlement agreement. S1 also testified that she informed Complainant that he had to request overtime in advance and forwarded his request for overtime to the Clinical Director.
S1 further testified that she did not know every word that she said to Complainant, but Complainant did not pay attention. She denied telling Complainant that she was not going to get in a "pissing contest" with him because she did not use such language with employees. S1 acknowledged telling Complainant that, as a supervisor, she was not going to get into a "spitting contest" with him because he wanted to debate every point.
S1 also testified that during a November 2009 staff meeting, she asked if anyone had questions. S1 stated that Complainant wanted to debate the scope of assessment, and she probably told him that they were "not going there" because it was not the place to debate the matter. S1 denied making a statement to an assistant that "men do not listen" or that "men are lazy." S1 further testified that Complainant was not entitled to union representation during his performance appraisal meeting.
S1 further testified that she informed Complainant that he missed information in his documentation or needed to include the additional signer on his documentation. Regarding Complainant's leave requests, S1 testified that two clinics had to be covered for two weeks. S1 also stated that the new performance plans issued in 2010 had to be rescinded and the old standards reissued because the proper procedure had not been followed. S1 further testified that Complainant was denied overtime because he had not requested it in advance for the time for which he claimed it, but thirty minutes of overtime was approved for the time Complainant met with her about his performance evaluation.
S1 also testified that Complainant was not entitled to union representation during the December 21, 2009, meeting to discuss carry-over annual leave because no discipline was at issue, but a union representative and human resources official were present when S1 met with Complainant on January 8, 2010, to consolidate and get his performance evaluations in order. S1 also testified that Complainant had union representation at a February 9, 2010, meeting to reissue the 2010 performance standards.
S1 denied not communicating with Complainant and said she generally expressed concerns in monthly meetings. S1 further stated that she told employees who did not receive calendars to pick one up, but Complainant never came to her office to get a calendar. S1 also explained that she referred to her weekly appointment book as her "brain book," but not in a derogatory manner. S1 stated that on February 3, 2010, she told Complainant that she was not going to stop seeing a patient in order to approve his leave request because the request had already been approved.
Complainant's second-level supervisor (S2) testified that she met with Complainant on December 20, 2009, to discuss errors with his performance evaluation, his annual leave request, and his request to attend the ATKA conference. S2 further testified that no union representative was present because the meeting was not likely to lead to discipline. S2 testified that Complainant was informed that the appraisal he was issued in August 2009 was a mistake because he had not been under S2's supervision for 90 days, and she told Complainant that the 90-day period would end on November 25, 2009, and the appraisal would be reissued the week of December 7, 2009. S2 also testified that Human Resources told her that Complainant was not entitled to a higher-level review of his appraisal, and he would have to file a union grievance or alternative dispute resolution process to contest the matter.
Complainant's third-level supervisor (S3) testified that employees are generally required to request overtime before actually working overtime, and that she wrote a memorandum to Complainant explaining that his request for one week of annual leave was denied because there were concerns about clinical coverage. S3 testified that Complainant took a week to attend the AKPA conference in November and December 2009, and wanted the following week off, but there were coverage issues. S3 stated that Complainant was offered the choice between taking annual leave or taking time to attend the ATKA, but the Agency could not allow him to be off for two consecutive weeks. S3 stated that she did not recall any meetings with Complainant wherein a union representative was present or where Complainant requested a union representative. S3 also explained that Complainant was approved for three days of authorized absence to travel for an EEO hearing. S3 also testified that Complainant's performance appraisal contained comments that reflected that he needed to better manage his leave.
S3 denied that Complainant was assigned to cover three or four clinics, but the clinic Complainant was hired to cover was not open when he arrived; therefore, he was assigned to different clinics for half-days. S2 testified that S1 uses the term "brain book" to refer to her calendar because she keeps a great deal of information in it. S2 further testified that all therapists in Physical Medicine were issued new performance standards in 2009, but the performance standards were pulled and the previous standards reissued to employees because there had been no employee or union input. S3 also explained that Complainant requested leave on February 3, 2010, which was approved by S1.
AJ's Decision
The AJ issued a 45-page decision on September 27, 2012. The AJ found that Complainant did not establish a prima facie case of sex discrimination for any of his claims. In so finding, the AJ determined that Complainant did not establish that he was treated differently than similarly-situated individuals outside his protected class. With regard to his 2009 performance appraisal, the AJ found that the record established that S1 issued fully successful evaluations in the area of documentation and communication to both male and female employees. Regarding the 2010 performance standards, the AJ determined that the record and testimony clearly established that all therapists were issued new performance standards that were then rescinded.
The AJ further found that Complainant did not establish that he was subjected to unlawful harassment because the alleged actions were not severe or pervasive enough to constitute a hostile work environment. Regarding the non-selections, the AJ found that the Agency articulated legitimate, non-discriminatory reasons for its actions, and Complainant did not prove that the explanations were pretext. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant primarily argues that the AJ was biased against him and abused her discretion with regard to the hearing proceedings. Complainant alleges that the AJ hung up on his representative during a telephone discussion about settlement negotiations. Complainant also contends that the AJ violated his right to due process because the hearing did not begin until December 2011 and end until August 2012, which was more than one year after the hearing was initially scheduled for July 21, 2011. Complainant further contends that his due process rights were violated because the AJ delayed resumption of the hearing and denied Complainant's request to sanction the Agency for serving its "Request for Extension of Time to File the Agency's Response to Complainant's Motion for Summary Judgment" at Complainant's old address.
Complainant also raises several allegations about the conduct of an EEOC mediator involved in this case. Specifically, Complainant alleges that the EEOC mediator accused him of being a "frequent filer" during a conversation with Complainant's representative; failed to allow his representative to talk to the AJ during a three-way telephone call; told the AJ that Complainant had been "kind of difficult"; and made many demands during settlement negotiations. Regarding the merits of his complaint, Complainant maintains that his supervisor lied during the hearing and has a history of not telling the truth. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 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 EEOC Management Directive for 29 C.FR. Part 1614 (MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant contends that the AJ displayed bias against him and violated his right to due process because the hearing did not begin until December 2011 and end until August 2012, which was more than one year after the hearing was initially scheduled. However, after a thorough review of the record, we determine that the AJ's conduct was neither biased nor prejudicial. Instead, the record reveals that the protracted hearings process in this case is mainly attributable to attempts to complete discovery, perfect the record, respond to numerous ongoing motions, a large number of witnesses, and a medical emergency experienced by Complainant's representative. We note that the AJ suspended the hearing pursuant to Complainant's request, and that Complainant did not request until May 2012 that the hearing be resumed, which was well after he requested in December 2011 that it be suspended. Contrary to Complainant's assertions, it is unreasonable to expect hearings to instantly resume under these circumstances. The AJ had to take into account her schedule as well as the schedule of Agency representatives. We note that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings, including the issuance of sanctions. See 29 C.F.R. � 1614.109; EEO MD-110, at 9-10. In this case, we do not find that the AJ abused her discretion or acted improperly.
Complainant also maintains that an EEOC mediator accused him of being a "frequent filer" during a conversation with Complainant's representative; failed to allow his representative to talk to the AJ during a three-way telephone call; told the AJ that Complainant had been "kind of difficult"; and made many demands during settlement negotiations. As such, Complainant is apparently challenging conduct or comments made during settlement negotiations. We note that generally, settlement negotiations, including any statements or proposals, are "to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally." Harris v. Dep't of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995). Moreover, in this case, Complainant has not shown that the mediator's alleged conduct influenced the AJ's handling of Complainant's complaint. Consequently, we find that Complainant has not shown that he was prejudiced by the mediator's conduct.
Disparate Treatment and Hostile Work Environment
A claim of a disparate treatment generally is examined under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
To establish a claim of discriminatory harassment, Complainant must show that: (1) he is a member of the 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 to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
Upon review, we find that substantial evidence in the record supports the AJ's determination that Complainant did not establish that the Agency subjected him to disparate treatment discrimination or a hostile work environment. While there is ample evidence in the record that Complainant had ongoing personality conflicts and disagreements with management, the evidence does not indicate that management was motivated by discriminatory animus with respect to any of the claims alleged. Particularly, with respect to Complainant's non-selections, there is no evidence that he was plainly superior to the selectees for the GS-12 Planetree Specialist or Health Systems Specialist positions. With respect to the GS-13 Health Systems Specialist position, the evidence reflects that Complainant failed to properly submit SF-50 documentation that demonstrated that he was qualified for a GS-13 position. In summary, the Agency provided legitimate, non-discriminatory reasons for its actions that were not shown to be pretext for discrimination by Complainant. Finally, we find that the record does not reflect that Complainant's work atmosphere and the incidents he complained of were severe or pervasive enough to constitute a hostile work environment.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's finding that Complainant did not prove that he was subjected to unlawful disparate treatment or harassment.
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
February 23, 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.
2 We note that the Agency and AJ parsed Complainant's complaint in a manner that results in the appearance of several duplicative claims, apparently in an effort to distinguish Complainant's disparate treatment claims from his hostile work environment claims. In the interest of clarity and consistency, we retain the AJ's characterization in this decision.
3 A Planetree Specialist is a Program Specialist responsible for coordinating and implementing the Veteran Centered Care/Planetree Program.
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