Ira P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 28, 2020

2019004883 (E.E.O.C. May. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ira P.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004883 Agency No. 200I-0005-2018106191 DECISION On June 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 6, 2019 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. BACKGROUND During the period at issue, Complainant worked as an Information Technology (IT) Specialist at the Agency’s VA Medical Center in San Juan, Puerto Rico. On November 28, 2018, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment/a hostile work environment based on race (Hispanic/black) and in reprisal for prior EEO activity (unspecified) when: 1. on July 6, 2018, he was excluded from working overtime; 2. on August 30, 2018, his request for a change in rotation was denied; 3. on September 11, 2018, he was instructed to return to the Medical Center to pick up satellite phones; 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. 2019004883 2 4. on November 6, 2018, his request for sick leave was denied twice; 5. on December 6, 2018, his overtime was cancelled; and 6. on November 7, 2018, he was questioned about false allegations lodged against him.2 After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on June 6, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or retaliation was established. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 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 a protected basis - in this case, his race and/or prior EEO activity. 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 an Information Technology (IT) Specialist at the Agency’s VA Medical Center in San Juan, Puerto Rico. The IT Deputy Area Manager was Complainant’s immediate supervisor while the IT Area Manager was Complainant’s second-level supervisor. Regarding claim 1, Complainant asserted that on July 6, 2018, he was excluded from working overtime. 2 The record reflects that in his affidavit, the IT Deputy Area Manager asserted that the meeting took place on November 7, 2018, not on December 7, 2018. 2019004883 3 The supervisor (Hispanic) averred that Complainant was not excluded from working overtime. He explained the requirement to work overtime was brought to his attention on July 2, 2018, when the trailers had arrived ahead of schedule and management needed to proceed “with haste in order to accommodate the early delivery and keep the scheduled clinic opening on time.” The supervisor noted that at that time, Complainant was on sick leave when the overtime team was formed to travel to work overtime on July 6, 2018. Regarding claim 2, Complainant alleged that on August 30, 2018, his request for a change in rotation was denied. The supervisor acknowledged denying Complainant’s request for a change in rotation because he never provided any reason or justification for the request “despite me asking for it.” However, the record reflects that the supervisor later approved Complainant’s request when he was experiencing a medical issue. Regarding claim 3, Complainant alleged that on September 11, 2018, he was instructed to return to the Medical Center to pick up satellite phones. The IT Area Manager (Manager) explained during the relevant period, Puerto Rico was under a hurricane warning. He stated that on September 10, 2018, several satellite phones had to be taken to Ponce and Guayama Community Based Outpatients (CBO). Complainant was notified that the phones were still being configured. The next day, September 11, 2018, Complainant and the travel team departed to Ponce and Guayama “however at no point did [Complainant] call his supervisor to inquire about the phones they had discussed the day before…based on the operational need to have this emergency communication requirement delivered to the site, the team was asked to return to the hospital to get the phones.” The Manager noted at the time they were called back, they were approximately 30 minutes into a trip that normally takes 1.5 to 2 hours. Furthermore, the Manager noted that when Complainant and the team returned to the facility, Complainant immediately went on sick leave and another technician was asked to deliver the phones. Regarding claim 4, Complainant claimed that on November 6, 2018, his request for sick leave was denied twice. The supervisor noted that he initially denied Complainant’s request for sick leave because he was asking time off knowing full well we had a meeting scheduled to discuss reports of contact I had received that concerned him. He further stated that when he disapproved Complainant’s request, he asked Complainant if he could change the date but he claimed he could not change his medical appointment “so I approved his request as originally asked for but then moved the meeting up so to ensure that he would be present for the meeting.” Regarding claim 5, Complainant asserted that on December 6, 2018, his overtime was cancelled. 2019004883 4 The supervisor explained at that time there was no overtime for Complainant because the contractor who was scheduled to visit the facility cancelled the planned visit. Therefore, no escort was needed. Regarding claim 6, Complainant asserted that on November 7, 2018, he was questioned about false allegations lodged against him. The supervisor stated that he met with Complainant to provide him with the opportunity to respond to allegations made by several of his co-workers regarding his conduct and reliability during September 2018 and October 2018. After careful review of the record, we conclude that the weight of the evidence does not establish that Complainant’s race or prior EEO activity played a role in the incidents that form his discriminatory harassment claim. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by discriminatory or retaliatory animus. His claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 2019004883 5 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 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. 2019004883 6 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 May 28, 2020 Date