Julian L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 9, 20180120171532 (E.E.O.C. Nov. 9, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julian L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171532 Agency No. 200J636D2016101646 DECISION On March 17, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 17, 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 Chaplain at an Agency Clinic in Des Moines, Iowa. On April 13, 2016, Complainant filed a formal EEO complaint. Complainant claimed that he was being subjected to ongoing harassment in reprisal for prior protected EEO activity. In support of this claim, he alleged the following incidents: 1. from September 2015 to December 2015, the Chief Chaplain, ignored Complainant’s request for assistance with payroll in receiving his overtime pay for call backs, which he later received; 2. from November 20, 2015 and ongoing, the Chief Chaplain increased Complainant’s workload by assigning him an additional ward; 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. 0120171532 2 3. in December 2015, during a staff meeting, the Chief Chaplain verbally attacked him for going outside his chain of command; 4. on January 6, 2016,2 the Chief Chaplain corrected him and criticized him in the presence of co-workers, and not doing so privately in her office; 5. on January 29, 2016, the Chief Chaplain would not assist Complainant with his call back pay, and he had to “go around” the Chief Chaplain to receive his overtime payment; 6. in February 2, 2016, the Chief Chaplain put a snide remark which Complainant felt was inappropriate on his approved annual leave time card; 7. on February 5, 2016, the Chief Chaplain gave Complainant an altered performance evaluation for the 2014/2015 rating period, which was later restored to its original evaluation; 8. on February 9, 2016, Complainant filed a police report due to the Chief Chaplain’s threatening behavior; 9. on February 10, 2016, the Chief Chaplain told Complainant she had a hammer in her possession; 10. on February 16, 2016, the Chief Chaplain verbally admonished him in front of his peers; 11. on February 22, 2016, the Chief Chaplain purposely cancelled a dimmer project that Complainant initiated; 12. on February 21, 2016, the Chief Chaplain issued Complainant a verbal warning for using the word “promise” in his progress notes; 13. during the week of March 1, 2016, Complainant’s desk was rummaged through on three occasions; 14. on March 8, 2016, the Nurse Executive was condescending and judgmental to Complainant during a staff meeting; and, 15. on March 15, 2016, the Chief Chaplain did not send Complainant a calendar reminder for a staff meeting scheduled for 9:15 a.m. 2 Based on the record, it appears that this date should have been December 2015. 0120171532 3 On May 27, 2016, Complainant requested the following two allegations be amended to the existing complaint. Both claims were accepted as follows: 16. on or about February 11, 2016, Complainant’s request to have a reduction in contact with the Chief Chaplain was dismissed and the Chief Chaplain was instructed to have face-to-face weekly meetings with him; and, 17. on February 22, 2016, the Chief Chaplain purposely cancelled a door closure project that Complainant initiated. Investigation of Complaint The following pertinent facts were established during the investigation of the formal complaint. Complainant had engaged in prior EEO activity in 1989, and 2010, and both actions resulted in settlement agreements. The Chief Chaplain became Complainant’s supervisor in June 2015. At that time, Complainant informed her of his prior EEO activity. Complainant informed the Chief Chaplain because she made plans to change the Chaplain schedule and tour which would have violated Complainant’s EEO settlement agreements. Complainant asserted that once he informed the Chief Chaplain of his prior settlement agreements, he was subjected to a retaliatory hostile work environment. Complainant’s coworker, a fellow chaplain (no prior EEO activity) (hereinafter referred to as “C1”) stated that the Chief Chaplain has been his supervisor since June 2015 as well. C1 stated that he also believed that the Chief Chaplain subjected Complainant to a hostile work environment. Complainant’s Union Steward testified to being present at various events, and asserted that the Chief Chaplain appeared to treat C1 better than Complainant, and was generally less critical and condescending of C1. Allegations 1, 3 and 5 – Callback Pay In September 2015, the Chief Chaplain started a new policy that allowed chaplains to receive overtime pay or callback pay (allegation 1). Complainant asserted that from September 2015 through December 2015, he did not receive his callback pay. Complainant informed the Chief Chaplain of this, but nothing was done. Complainant stated that he received the correct callback pay in January 2016 after he went to the payroll department and requested correction of this issue. Complainant noted that another incident occurred on January 29, 2016, and the Chief Chaplain again ignored his request for assistance (allegation 5). Complainant noted that he was able to have the pay corrected when he went to payroll for assistance. Complainant alleged that in doing so, the Chief Chaplain yelled at him for going outside of his chain of command (allegation 3). 0120171532 4 The Chief Chaplain stated that when she came to the facility, she instituted a new on-call system for the chaplains. She stated that because this was a new system, the timekeepers did not know how to log in that time. She stated that because of this situation, there were v a r i o u s issues regarding the pay and hours for all three of the chaplains she supervised. She stated that her role, as far as the payroll, is to sign the timecards. She stated that if any employee had a problem with their pay or callback, they already knew that they should contact payroll. The Chief Chaplain stated that she did not ignore any of the chaplains' requests. She stated that they would let her know that they did not get paid, and she would make sure that the time was put in. Regarding Complainant’s assertion that she verbally attacked him, she denied the event. She stated that Complainant's prior EEO activity had nothing to do with these events. Allegation 2 – Additional Work Complainant stated that at the time there were three chaplains, including Complainant. Following the retirement of a fellow chaplain, the Chief Chaplain informed Complainant and C1 that each would need to work additional wards to cover for the retired chaplain. This action started from November 20, 2015, and continued. Complainant argued that this was unacceptable. The Chief Chaplain acknowledged the event and stated that it had nothing to do with Complainant’s prior EEO activity. The Chief Chaplain stated that following the retirement of one of three chaplains, work naturally increased for the remaining staff, including her own work. Allegations 4, 10, and 12 – Admonishments Complainant stated that the Chief Chaplain criticized him in the presence of C1 and other staff during staff meetings. Complainant alleged that during a staff meeting in December 2015, she criticized his progress and charting notes (allegation 4). Complainant stated that this criticism was voiced in the presence of C1. Complainant stated that on February 16, 2016, during another staff meeting, she identified Complainant as violating the restriction policy of entering a patient's room without protective coverings (allegation 10). Complainant stated that in contrast, he did not get the same privilege of being criticized in private, as C1 did. Regarding the December 2015 meeting, the Chief Chaplain stated that she had asked C1 to train Complainant on his charting and progress notes. The Chief Chaplain acknowledged that Complainant was unhappy about the situation, but that he needed additional training. Regarding the February 2016 incident, she stated it was on the meeting agenda because protective gown precautions are important for everyone to know and be routinely reminded. C1 stated that the Chief Chaplain had asked him to train Complainant on his progress notes. C1 also stated that he has been verbally admonished and criticized in front of coworkers before as well. In February 2016, Complainant discovered one Sunday that the Chief Chaplain was scheduled to work, but did not provide worship services that day (allegation 12). 0120171532 5 Complainant stated that several patients complained, and so he alerted the Chief Chaplain of this matter. Based on their conversation, Complainant wrote in patient progress notes that the Chief Chaplain “promised” that she would come and speak with them. The Chief Chaplin saw the progress notes, and emailed Complainant that she was giving him a verbal warning. The Chief Chaplain gave Complainant the verbal warning because it was inappropriate of Complainant to tell patients she “promised” something when she had not. The Chief Chaplain noted that this was not a disciplinary action, but just a verbal warning to not do it again. Allegations 6, 13, 14, 15, 16 – Work Occurrences Complainant believed someone rummaged through his desk during the first week of March (allegation 13). He acknowledged that he did not have any evidence of this, but noted that the Chief Chaplain had keys to his office. He stated he was eventually able to change the locks on his door without involving the Chief Chaplain. The Chief Chaplain had no knowledge of this event. On March 8, 2016, the Nurse Executive held a staff meeting and stated that he was going to hire someone to offer consultation, and guidance to assist the chaplains have a better relationship with one another. During the meeting, Complainant stated that it would be great if it actually helped them. Complainant asserted that in response, the Nurse Executive turned to him and allegedly said in a condescending manner, “would you be able to work with the process, and could you do it wholeheartedly?” The EEO Investigator attempted to interview the Nurse Executive, the Chief Chaplain’s supervisor, but he was retired at the time of the investigation. Efforts to reach the Nurse Executive were unsuccessful. On March 15, 2016, the Chief Chaplain did not send Complainant a calendar reminder for a staff meeting (allegation 15). Complainant stated that because the Chief Chaplain did not remind the staff, he and C1 missed the meeting. The Chief did not recall this event. She stated that while she typically sends out reminders, if she did not send one out it was likely because she did not have time. Complainant stated that on February 2, 2016, Iowa was hit with a major snow storm. He was unable to travel to the facility that day, and notified the Chief Chaplain of this, informing her that he would take annual leave. The Chief Chaplain approved of the leave, but put a “snide remark, “?weather?” in the remark section.” Complainant found this comment inappropriate (allegation 6). The Chief Chaplain did not recall this, but noted that she electronically signs time cards. On or about February 11, 2016, Complainant requested the Nurse Executive limit his contact with the Chief Chaplain (allegation 16). Instead, he was told to have weekly chaplain meetings by an outside consultant. The Chief Chaplain stated that because relationships had soured, an outside consultant was brought in to counsel staff on how to improve relationships. The Chief Chaplain stated that one suggestion was that she and Complainant meet weekly, which never occurred. 0120171532 6 Allegations 7, 8, and 9 - Evaluation and Police Complainant stated that the Chief Chaplain attempted to alter his original 2015 Performance appraisal with a different one (allegation 7). Complainant signed his original performance appraisal in September 2016. This original appraisal showed no comments and all categories were marked fully successful. He was later informed that they had signed the performance appraisal incorrectly. In November 2015, he re-signed the appraisal. On February 5, 2016, he received a different evaluation, it was still marked as fully successful, but it was altered to include comments. He spoke with the Chief Chaplain about this, and went to the union. The original evaluation without the comments was restored. The Chief Chaplain stated that event happened as alleged. She stated that when she redid the evaluation, she did add comments. She stated that she was corrected by Human Resources and the comments were removed. She stated that this event was her mistake and lack of knowledge and had nothing to do with Complainant's prior EEO activity. Complainant stated that the Chief Chaplain, the Union Steward, and he were discussing the performance appraisal and trying to resolve the situation when the Chief Chaplain became very angry, called him a liar, and then said, "in Jesus' name, you will be punished." Complainant stated that he considered this comment a threat to his life because if she changes the name from “ Jesus” to “Allah,” it would have a whole different meaning. Complainant stated that he filed a police report and that the Chief Chaplain was questioned by Agency police (allegation 8). The Chief Chaplain stated that she did not threaten Complainant. The Chief Chaplain acknowledged raising her voice in frustration, but did not threaten Complainant. She stated that maybe because they are from different cultures and backgrounds Complainant did feel threatened. She spoke with the police about the event, a n d i t was not concluded to be a threat. On February 10, 2016, Complainant was discussing with C1 about how the arrangement of their offices would make it difficult to get out if they were meeting with a disruptive patient (allegation 9). The Chief Chaplain joined the conversation and agreed. She stated that if a patient became disruptive, she had a hammer. Complainant noted that the Chief Chaplain kept a hammer in her office to break walnuts. Complainant felt threatened by this comment and reported this to Agency police. The Chief Chaplain stated that the conversation revolved around chaplains having a panic button in their offices for safety. She stated it was a very general conversation, and that she mentioned having a hammer in her office if she ever needed to protect herself. C1 reiterated what the Chief Chaplain stated. Allegations 11 and 17 – Cancelled Projects 0120171532 7 Prior to the Chief Chaplain being hired, Complainant was the acting chief. In that role, he authorized the addition of dimmer switches to the chapel areas, the hallway, and the offices. These additions were all approved. Complainant stated that the installation of the dimmer switches in the chapel area and the hallways were completed and the Chief Chaplain seemed to love it. However, after increasing hostility, the Chief Chaplain canceled dimmer switches in the chaplain offices (allegation 11). The reason given was that dimmers were not needed in the offices, and were not cost effective. Complainant stated that as acting chief, he also initiated a door closure project that would allow the chapel doors to automatically open and close and reduce noise in the chapel (allegation 17). The Chief Chaplain liked the idea at first, but after months of disagreement she cancelled the project citing that it was a safety issue to have the doors closed. Complainant stated that these issues created a hostile work environment because he feels that the Chief Chaplain knew these were his pet projects and was trying to hurt him in reprisal for his previous EEO activity. The Chief Chaplain stated that these events did happen. She stated that she did not deem it as necessary for chaplains to have dimmers in the offices to do their jobs. Additionally, the extra dimmers required extra work and funding. Regarding the doors, the Chief Chaplain had a discussion with her supervisor and Agency police, and all agreed to keep the doors open so everybody would feel safe. Post-Investigation Processing After the investigation into his complaint, 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant asserts that it was well known that the Agency fostered a contentious and hostile work environment. Complainant asserts that there were several items that were omitted in the report. For example, he contends that other chaplains did not have any difficulty receiving their entitled pay like he did. Additionally, Complainant argued that the Chief Chaplain’s attitudes toward him made it difficult to seek any kind of assistance or resolution to his concerns. Complainant also notes that he had a heart attack while on duty, and that it was “no wonder” considering the “ongoing and apparently never ending barrage of demands, criticisms, and negative judgements, along with micromanaging of [his] work efforts…”. Complainant asserts that the Agency failed to properly consider how the hostility of the work environment has had an impact upon him emotionally and physically. ANALYSIS AND FINDINGS To establish a claim of discriminatory 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 0120171532 8 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. 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 a protected basis – in this case, because of his prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In a retaliation case, Complainant must first show that he was subjected to adverse treatment by the Agency. The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti- retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). In addition, Complainant must prove that a “nexus” exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). While Complainant argued that he was treated differently based on his prior protected EEO activity, the record does not show that the disputed actions were based on any retaliatory animus. For example, Complainant argued that the Chief Chaplain intentionally ignored his requests for assistance with callback pay (allegations 1, 3, and 5). However, he acknowledged that once he sought assistance from the payroll department, his pay was rectified. The record noted that the pay discrepancies were due to a new call system being implemented, which resulted in issues with pay that did not solely affect Complainant. Complainant also alleged that he was assigned additional work (allegation 2), but this too was demonstrated to be the effect of another chaplain retiring. Furthermore, C1 was also given more work due to the retirement. Complainant also alleged that the Chief Chaplain intentionally cancelled two of his projects (allegations 11 and 17) in retaliation of his prior EEO activity. The record demonstrated that one project (allegation 11) was partially implemented, and that the Chief Chaplain only cancelled the portion she deemed excessive and unnecessary. The second project was cancelled based on concerns that the automatic doors might close people in and create an unsafe environment for some (allegation 17). 0120171532 9 Complainant alleged that the Chief Chaplain intentionally and openly criticized him when she could have provided criticisms behind closed doors (allegations 4, 10, 12). First, the record demonstrated that Complainant was not the only staff member to be openly criticized. Second, the record demonstrated that while the Chief Chaplain did provide criticisms openly it was often done so as a teaching moment (allegations 4 and 10). Complainant also alleged that the Chief Chaplain threatened him with possible imminent bodily harm (allegation 8 and 9). In allegation 8, the Chief Chaplain referred to “Jesus” when she expressed frustration with Complainant during a meeting. Complainant acknowledged that if the Chief Chaplain had referred to Allah, instead of Jesus, it would have created a whole different meaning (allegation 8). However, the Chief Chaplain did not refer to Allah in making her statement. Moreover, the Chief Chaplain’s statement regarding a hammer in her office was made during a general conversation regarding extreme measures if a chaplain were ever threatened by an unstable patient (allegation 9). There is no evidence that the statement was directed towards Complainant. Regarding allegations 6, 7, 13, 14, 15, and 16, the record is clear that Complainant had a contentious relationship with the Chief Chaplain. However, 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). The record simply does not show that the conduct at issue was based on animus towards Complainant’s prior protected EEO activity. Based on the record, we find that Complainant has produced no evidence to establish that his prior EEO activity was a factor in any of these actions. The record simply does not show that the responsible Agency officials acted with discriminatory or retaliatory animus towards Complainant. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s finding of no discrimination. 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. 0120171532 10 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. 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. 0120171532 11 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 November 9, 2018 Date Copy with citationCopy as parenthetical citation