Marcellus M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 13, 2018

0120170240 (E.E.O.C. Nov. 13, 2018)

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

Marcellus M.,1
Complainant,

v.

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

Appeal No. 0120170240

Hearing No. 520-2014-00443X

Agency No. 200H-0523-2014104606

DECISION

On October 21, 2016, 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
October 11, 2016, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final order.

ISSUES PRESENTED

Whether the Agency discriminated against Complainant based on his age, disability, and sex when
it removed him during his probationary period; and when it allegedly subjected him to a hostile
work environment based on his age, disability, and sex.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid at
the Agency’s Boston Health Care System, Jamaica Plain Campus, in Boston, Massachusetts.
Complainant was hired on January 26, 2014. Report of Investigation (ROI) at pg. 167.
Complainant’s supervisor was S1 (female, 54, undisclosed disability status).

In February 2014, Complainant was issued an identification card that did not include the suffix
“Sr.” He repeatedly visited the Personnel Security Office (PSO) in an “agitated, aggressive”
manner. On February 13, 2014, Complainant returned to the PSO and began to yell. He refused to
leave, and the Assistant Chief (AC) (male, age 54, undisclosed disability status) was called because
Complainant was “threatening, inappropriate and unprofessional.” ROI at pgs. 268, 404.

On April 24, 2014, just prior to his scheduled afternoon break, Complainant saw that one of the
restrooms was especially dirty. Since employees have set break times, and need to obtain
permission to change their break time, Complainant stated that he attempted to contact a
supervisor, but that no one picked up the phone. Complainant decided to clean the restroom, and
take his break afterwards. Another Supervisor (S2) (female, age 54, undisclosed disability status)
saw Complainant at the store, and asked Complainant why he was there since he should have been
working. Complainant began to explain the situation; both parties stated that the other became
loud. Complainant alleged that S2 then placed him on absence without leave (AWOL) that day.
ROI at pgs. 192, 235-236, 405-408.

Starting on April 25, 2014, Complainant stated that he was only allowed to work overtime one day
per week; and that he informed the Chief Engineer (CE) (male, age 43, undisclosed disability
status) who was the Acting Chief, of his allegations that he was being harassed. ROI at pg. 195,
198-200.

On May 5, 2014, Complainant stated that another supervisor informed him that S2 made
complaints about Complainant placing too much garbage in the trash bins. ROI at pg. 205. On
May 12, 2014, Complainant had a medical appointment, and claimed that he was charged leave
without pay (LWOP), instead of his available sick leave. ROI at pgs. 201-202. Complainant
alleged that S2 stood and watched him work on May 21, 2014. ROI at pg. 208.

On June 26, 2014, Complainant alleged that S2 was observed going through his work closet when
he was not present. Complainant stated that he found food in the closet, which he alleged was
planted by S1. Complainant stated that he threw the food away prior to S1 and S2 coming to inspect
the closet. ROI at pg. 209-211.

On June 27, 2014, AC issued Complainant a counseling letter to address concerns about
Complainant’s behavior. AC cited three incidents when Complainant became extremely agitated
and aggressive, and failed to follow instruction. ROI at pg. 398.
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On or about July 21, 2014, someone dropped a cup of coffee on the floor in the cafeteria. A witness
stated that he then saw Complainant throwing trash on the ground, and loudly cursing.2 ROI at
pgs. 416-417.

On August 25, 2014, Complainant was notified of his termination during his probationary period
due to inappropriate behavior. Specifically, Complainant had raised his voice, argued, and became
agitated toward staff in the presence of patients. ROI at pgs. 396-397.On October 4, 2014,
Complainant learned that his former coworkers were instructed not to speak with him. ROI at pg.
217.

On October 11, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male), disability (undisclosed), and age (55) when he was removed
during his probationary period. Complainant also alleged that he was subjected to a hostile work
environment based on his sex, disability, and age when:

1. On April 24, 2014, S2 allegedly yelled at Complainant; questioned his whereabouts
while he was on his break; and stated, “veterans with medical problems should not be
working here”;
2. On April 25, 2014, S1 allegedly placed Complainant on AWOL;
3. On April 25, April 28, May 5, May 19, and July 3, 2014, Complainant reported to CE
that he was harassed by AC, and no action was taken;
4. From April 25, 2014 to August 25, 2014, Complainant was informed that he could only
work overtime one day a week;
5. In May 2014, S1 charged Complainant with LWOP when he attended a medical
appointment, despite the fact that he had accrued leave;
6. On May 5, 2014, a new supervisor informed Complainant that S2 reported two
complaints about his work;
7. On May 21, 2014, S1 allegedly stood and watched Complainant doing his work for
approximately 45 minutes;
8. On June 26, 2014, S1 was observed going through Complainant’s work closet when he
was not present;
9. On June 27, 2014, AC issued Complainant a probationary period counseling letter, and
CE failed to take action against the false allegations raised in the counseling;
10. On August 25, 2014, Complainant was terminated during his probationary period;
11. On October 4, 2014, a former coworker informed Complainant that management had
instructed coworkers not to talk to Complainant; and
12. On February 11, 2015, Complainant learned that AC allegedly transferred witnesses to
another campus so that they could not give statements for his investigation.

2 The witness recalled Complainant stating, “son-of-a bitch,” and “f***ing veterans.”

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On December 11, 2014, the Agency noted that events 2 and 5 were discrete acts, but were
dismissed as independent claims because of untimely EEO Counselor contact. However, these
events were included in the overall harassment allegation. ROI at pg. 128-129. Additionally, on
February 24, 2015, the Agency accepted incident 12 because it is like or related to the original
complaint. ROI at pgs. 155-158.

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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned
to the case granted the Agency’s September 11, 2015, motion for a decision without a hearing, and
issued a decision without a hearing on September 20, 2016. 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.

For the removal claim, the AJ found that Complainant had not established a prima facie case of
discrimination based on his age, disability, or sex because he had not identified any comparators
outside of his protected categories who were treated more favorably. The AJ also found that the
Agency put forth legitimate, nondiscriminatory reasons for terminating Complainant. The AJ
noted that the record showed that Complainant’s misconduct and volatile behavior on the job
justified the termination. The AJ then found that Complainant had not rebutted the evidence, and
could not establish that the Agency acted with discriminatory intent.

The AJ also found that there was no evidence showing that any of the events of Complainant’s
hostile work environment claim were motivated by bias. Further, the AJ found that the alleged
harassment did not relate to Complainant’s protected classes. The AJ also found that the twelve
incidents, taken as a whole or in part, were not sufficiently severe or pervasive to create an abusive
work environment. The AJ concluded that there were no genuine issues of material facts in dispute,
and granted the Agency’s motion for summary judgment.

Complainant filed the instant appeal, and submitted a statement in support of his appeal on
November 17, 2016.3 The Agency responded on December 15, 2016.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that he was not given an opportunity to question the witnesses,
and requests a hearing. Complainant claims that he requested all documents and witness
reports/statements on March 31, and June 28, 2015, but did not receive anything. Complainant
also provided additional evidence in support of his appeal.

3 On December 28, 2016, Complainant submitted an additional statement in support of his appeal.
A complainant has 30-days from the date of his appeal to submit a supporting statement. 29 C.F.R.
§ 1614.403(d). In this case, Complainant has already done so; accordingly, this additional
statement will not be considered on appeal.
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Additionally, Complainant denies yelling at S2; and states that while he was accused of assaulting
someone in the cafeteria and throwing garbage around, there was no evidence showing this.
Complainant also argues that there was no report by any supervisor or coworker regarding any
inappropriate behavior.

The Agency states that Complainant has not presented any disputed material evidence showing
that the Agency discriminated against him, or subjected him to a hostile work environment, based
on his age, disability, or sex. The Agency requests that the Commission uphold its final order.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. 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. Id. at 255.

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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, 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

We find that Complainant has not shown that there are any material facts in dispute. On appeal,
Complainant provides additional evidence. As a general rule, no new evidence will be considered
on appeal absent an affirmative showing that the evidence was not reasonably available prior to or
during the investigation or during the hearing process. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015).
In this case, Complainant has not shown that this evidence should be considered on appeal.
Moreover, we find that the new evidence is not relevant to the instant case, as it does not prove
that there are any material facts in dispute. Accordingly, we find that the AJ properly issued a
decision without a hearing.

With regards to Complainant’s claim that he never received the documents or witness statements
for his investigation, we find that the record shows that the Agency mailed him the investigative
file on May 12, 2015, which was received by Complainant. Additionally, the record contains
Complainant’s rebuttal statements, showing that he received a copy of the witness statements. ROI
at pgs. 371-378.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his age, disability, and sex, we find that the Agency articulated legitimate, nondiscriminatory
reasons for removing Complainant during his probationary period. AC stated that he recommended
Complainant’s removal because he was aggressive and “very hostile.” ROI at pg. 267. The record
shows that multiple people reported incidents when Complainant was aggressive, loud, and used
inappropriate language at work.

On appeal, Complainant argues that he did not yell at S2. However, we find that the record contains
statements from two witnesses from the April 24, 2014, incident. The first witness stated that S2
did not yell and was trying to calm Complainant, who was yelling. ROI at pg. 409. The second
witness stated that he heard Complainant swearing at S2 and stayed to watch because he thought
that Complainant may become violent, and he was concerned for S2’s safety. ROI at pg. 413.

Additionally, Complainant states that there is no evidence supporting the allegation that he
assaulted the coffee-spiller in the cafeteria. Specifically, he argues that there is no video evidence;
there was no security, police, or medical report; and that there was no “code red” or “code green.”
However, we find that Complainant was never accused of assaulting this individual, and that he
was removed due to multiple instances of inappropriate behavior.

We further find that Complainant has not shown that the reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
Complainant has only made bare assertions that management officials lied, which are insufficient
to prove pretext, or that their actions were discriminatory. Accordingly, we find that the Agency
did not discriminate against Complainant based on his age, disability, or sex when it removed him
during his probationary period.

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We also affirm the Agency’s dismissal of incidents 2 and 5 as discrete claims of discrimination
because these incidents occurred more than 45-days prior to Complainant’s initial contact with the
EEO counselor on August 28, 2014.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In this case, we find that Complainant has not shown that any of the complained of conduct was
due to his age, disability, or sex. The record shows that some of these events did not occur as
alleged, or that they occurred due to Complainant’s workplace conduct. Even assuming, arguendo,
that these incidents occurred as alleged, we find that taken together, they do not rise to the level of
severe or pervasive conduct to constitute a legally hostile work environment. As such, we find that
Complainant has not shown that the Agency subjected him to harassment based on his age,
disability, or sex.

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 final order adopting the AJ’s decision
finding that Complainant has not shown that the Agency discriminated against him when it
removed him during his probationary period, nor subjected him to a hostile work environment
based on his age, disability, or sex.

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.
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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.

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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 13, 2018
Date