0120090526
08-12-2011
Michael R. Casalin, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael R. Casalin,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090526
Agency No. 2003-0580-2007-104056
DECISION
On November 3, 2008, Complainant filed an appeal from the Agency’s
September 29, 2008, 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. 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 decision.
ISSUES PRESENTED
The issues presented are: (1) whether the record was adequately developed
to allow a determination on the merits of Complainant’s harassment
claim; and (2) whether Complainant established that, from September 2007
to February 2008, the Agency subjected him to hostile work environment
harassment on the basis of reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Carpenter in the Carpenter Shop at the VA Medical Center in
Houston, Texas. Complainant had been in his position for over 27 years.
Beginning in March 2005, Complainant’s immediate supervisor was the
Maintenance Mechanic Supervisor (S1).
In June 2005, Complainant filed an EEO complaint alleging that the
Agency discriminated against him when he was not selected for the
Maintenance Mechanic Supervisor position, the position filled by S1.
In addition, Complainant’s alleged that S1 subjected him to hostile work
environment harassment from March to April 2005. In Michael R. Casalin
v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120063718 (Jan. 25,
2007), the Commission affirmed the Agency’s final decision finding
no discrimination or harassment. In Michael R. Casalin v. Dep’t
of Veterans Affairs, EEOC Request No. 0520070323 (Mar. 23, 2007), the
Commission denied Complainant’s request for reconsideration.
Complainant filed the instant EEO complaint alleging that the Agency
subjected him to hostile work environment harassment on the basis of
reprisal for prior protected EEO activity under Title VII. Complainant
cited 23 incidents, all involving S1, as part of his harassment claim:
1. On September 6, 2007, S1 bullied him and threatened that he was going
to get physical with him;
2. On September 7, 2007, S1 screamed at him in front of co-workers;
3. On September 11, 2007, S1 humiliated him in front of co-workers;
4. On October 4, 2007, S1 verbally attacked his work performance;
5. On October 11, 2007, S1 refused to assist him in preparing his
self-assessment for his performance appraisal and then rated him as
“less than fully successful” on his performance appraisal (which
was later changed to “fully successful”);
6. On October 26, 2007, S1 verbally threatened him with a charge of
insubordination;
7. On unspecified dates, S1 told co-workers to stay away from him;
8. On November 1, 2007, S1 threatened to terminate his computer access;
9. On November 2, 2007, S1 threatened to deny him the opportunity to
raise his concerns with upper management;
10. On November 16, 2007, S1 placed him on a Performance Assistance Plan
(PAP);
11. On November 16 and 20, 2007, S1 wrote the following negative comments
about his work performance – “I doubt whether you are capable of
performing carpentry duties . . . you fail to collaborate with co-workers
in completing projects;”
12. On November 19, 2007, S1 issued him a letter of counseling for using
his computer at work for personal business;
13. On November 26, 2007, S1 rated Complainant as “less than fully
successful” on his performance appraisal (which was later changed to
“fully successful”);
14. On November 27, 2007, he heard that S1 had asked co-workers to write
reports of contact about his work performance;
15. On November 29, 2007, he heard that S1 had asked a co-worker to
write a false statement regarding a November 1, 2007 job they worked on;
16. On December 4, 5, and 7, 2007, S1 assigned a less-experienced
co-worker to observe and report on his work;
17. On December 4, 5, and 7, 2007, S1 assigned him to be observed by
a co-worker who was hostile and became angry with him even though they
were assigned to work together to promote teamwork;
18. On December 5, 2007, S1 sent him an email expressing concerns about
his work performance;
19. On December 6, 2007, S1 allowed a co-worker to “surf the
internet,” whereas he received a letter of counseling for checking
his Thrift Savings Plan (TSP) on the internet;
20. On December 7, 2007, S1 allowed a co-worker to check his TSP,
whereas he received a letter of counseling for checking his TSP;
21. On December 11, 2007, S1 yelled at him when he informed S1 that he
did not know how to do masonry work and S1 then falsely accused him of
refusing to do a job;
22. On December 17, 2007, S1 wrote comments about his work performance
and progress during his PAP; and
23. On February 6, 2008, S1 yelled at him and falsely accused him of
refusing to do a job.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
In its “Summary of Facts” section,1 the Agency stated that
Complainant and S1 had endured a “contentious relationship” ever
since S1 was selected for the Maintenance Mechanic Supervisor position.
Specifically, the Agency stated that “Complainant feels certain that he
is more qualified than [S1] for the position and maintains hostility and
resentment for [S1] as a result. [S1] resents, in return, Complainant’s
poor attitude toward him. [S1] believes that Complainant’s poor
attitude has affected Complainant’s work performance in a negative
way.” In addition, the Agency stated that Complainant and S1
“frequently have treated each other with disrespect.”
The Agency analyzed Complainant’s complaint under a disparate
treatment framework. Initially, the Agency found that Complainant
failed to establish a prima facie case of reprisal discrimination.
Specifically, the Agency determined that Complainant did not establish
that a nexus exists between S1’s awareness of his prior EEO activity
and the alleged events at issue in the instant complaint.2 Next, the
Agency found that S1 articulated legitimate, nondiscriminatory reasons for
his actions. Regarding Complainant generally, the Agency found that S1
maintained animosity against him and at times acted upon that animosity
by treating him with disrespect or hostility. However, the Agency found
that S1’s animosity against Complainant was due to his poor attitude
toward S1 and the facility, not his engagement in the EEO process.
Regarding Complainant’s work performance specifically, the Agency
found that S1 believed his work performance had been negatively affected
by his resistance to S1’s authority. Finally, the Agency found that
Complainant failed to prove pretext. Specifically, the Agency noted that
Complainant offered only his subjective opinion that S1’s actions were
in reprisal for his prior EEO activity. The Agency determined that any
actions taken by S1 relevant to the instant complaint, though “petty,
immature, and seriously unbecoming of any supervisor,” were unrelated
to Complainant’s prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency’s investigation was
inadequate because the EEO Investigator had “left out about half of
[his] testimony.” In addition, Complainant contended that there was
direct evidence in S1’s testimony to prove that S1 was a “habitual
liar” and had lied to the EEO Investigator. Complainant cited S1’s
testimony about incident 1 as an example. Complainant asserted that
S1 initially attested that Complainant was yelling at him, but then
shortly thereafter attested that they were not yelling at each other.
Complainant highlighted two sentences from S1’s affidavit: (i) “So he
started, you know, yelling and stuff at me;” and (ii) “No. You know,
we weren’t yelling and shouting at each other, no.”
In response, the Agency reiterated its previous analysis and requested
that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 9, § VI.A. (Nov. 9, 1999) (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”).
Adequacy of the Record
Our regulations provide that the agency shall develop an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint and define an appropriate factual record
as one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred. 29 C.F.R. § 1614.108(b). While the
agency has an obligation under 29 C.F.R. § 1614.108(b) to develop an
impartial and appropriate factual record, a complainant can also cure
defects in an investigation, after reviewing the ROI, by notifying the
agency (in writing) of any perceived deficiencies in the investigation
or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, § XI;
Ch. 7, § I.
Initially, we note that Complainant chose not to take advantage of
the above-mentioned opportunities to cure any defects in the instant
investigation. Moreover, our review of the record finds that the
Agency’s investigation is sufficient for a reasoned determination on
Complainant’s harassment claim. On appeal, Complainant argued that
the EEO Investigator had “left out about half of [his] testimony.”
However, Complainant provided no further explanation and did not
specifically state what parts of his testimony were allegedly excluded.
The record reflects that Complainant provided telephonic testimony on
April 22, 2008 and May 6, 2008. In addition, the ROI includes two
complete transcripts (170 pages total) of Complainant’s testimony
prepared by a Certified Court Reporter. Our review of the transcripts
confirms that no pages are missing and that the EEO Investigator
addressed all the incidents listed in Complainant’s harassment claim.
Accordingly, we find that the Agency developed an impartial and
appropriate factual record that allows us to draw conclusions as to
whether discrimination occurred.
Harassment
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their 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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
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 at 6
(Mar. 8, 1994).
In his affidavit, Complainant stated that his prior EEO activity
triggered the harassment by S1. Specifically, Complainant attested,
“All this started as soon as my other EEO [ended]. He wanted to
get even because I had filed that other EEO, so he was going to do
everything.” Aff. B1a, at 74. In addition, Complainant attested,
“He didn’t harass me at all or be disrespectful towards me when the
other claim was pending against him, he was just as nice as can be.
And then all of a sudden he turned like night into day as soon as my
other case, shortly after my other case was denied.” Id. at 17-18.
Upon review of the record, we find that Complainant failed to establish a
claim of actionable harassment. Specifically, we find that Complainant
did not prove, by a preponderance of the evidence, that the harassment
complained of was based on his prior EEO activity. In so finding, we
note testimony by numerous witnesses that: (a) the working relationship
between Complainant and S1 had always been difficult, even prior to
September 2007 (the date the alleged retaliatory harassment began);
(b) there was no sudden change in the working relationship between
the period when Complainant’s prior EEO complaint was pending (June
2005 to March 2007) and the period after the final adjudication of his
prior EEO complaint (April 2007 to the present); and (c) S1 had a tense
supervisory relationship with many of the employees in the Carpenter Shop.
Regarding the working relationship between Complainant and S1, a co-worker
(C1) who worked in a different shop attested that, prior to September
2007, the relationship was “unsatisfactory” because Complainant
“was being singled out and constantly being bullied and threatened.”
Aff. B2b, at 11. C1 also attested that there was an incident between
Complainant and S1 in September 2005 and that “situations have
been boiling and going on up” ever since. Id. at 59. In addition,
the union president (C2) attested that since S1 became Complainant’s
supervisor, “there has been a friction between the two of them because
… one’s an electrician and the other’s a carpenter.” Aff. B3,
at 21. Further, C2 attested that he believed S1 was singling Complainant
out because how Complainant expressed his dissatisfaction with S1’s
management style “began to cause this friction between the two to
escalate.” Id. at 21. Moreover, C2 attested that “it’s been back
and forth, back and forth” and “tit-for-tat” between Complainant
and S1, and that “what has happened is that you have one person who
has a sense of power as a supervisor and another person who has a sense
of rights, and they’ve been going back and forth.” Id. at 27-28.
Finally, a co-worker (C3) who worked in the Carpenter Shop attested that
Complainant appeared to have issues with S1 ever since S1 was selected
for the supervisor position. Aff. B4, at 40.
Regarding whether the prior EEO complaint caused any change (positive
or negative) in the working relationship between Complainant and S1,
C2 attested that he was unaware of a time frame when Complainant and
S1 were getting along without an antagonistic type of relationship.
Aff. B3, at 17. In addition, C3 attested that he did not see a change
in S1’s behavior toward Complainant. Aff. B4, at 38-39.
Regarding S1’s relationship with the other employees in the Carpenter
Shop, C2 attested that he was aware of friction between them. Aff. B3,
at 22. Specifically, C2 attested, “Most of the employees that he’s
had over there supervising … these are guys that have been like in the
infrastructure for over 20-some-odd years and they’re all carpenters.
And then all of a sudden an electrician comes to get a job, and it’s
kind of been escalating … So it’s just been a big old turmoil.”
Id. at 22-23. In addition, C3 attested that everyone in the shop bid
for the position that S1 eventually was selected for and that S1 did not
know anything about the work, but would still question they way that the
employees did the work. Aff. B4, at 38. Further, a co-worker who worked
in the Carpenter Shop (C4) attested that, when he arrived in the shop
in October 2005, the employees felt “disgruntled” because of S1’s
selection and there was a “cloud of … bad taste in those guys’
mouths.” Aff. B8, at 15. Finally, C4 attested that the shop did not
have a “social, harmonious environment” because S1’s selection
“kind of put a little space between the folks.” Id. at 36.
On appeal, Complainant contended that S1 lied to the EEO Investigator
and cited allegedly conflicting testimony by S1 regarding incident 1.
Upon review, we are not persuaded that the two sentences highlighted by
Complainant are clear evidence that S1 lied to the EEO Investigator
regarding incident 1, let alone all of the remaining incidents.
In describing Complainant’s actions, S1 attested, “So he started,
you know, yelling and stuff at me [emphasis added].” Aff. B5, at 19.
In response to the EEO Investigator’s question about whether he raised
his own voice, S1 attested, “No. You know, we weren’t yelling and
shouting at each other, no [emphasis added].” We find that the two
statements are not clearly contradictory, as the former referred only
to Complainant’s actions and the latter referred to their (S1 and
Complainant) collective actions.
With respect to Complainant’s challenge of the credibility of S1, we
note that a hearing “provides the parties with a fair and reasonable
opportunity to explain and supplement the record and, in appropriate
instances, to examine and cross-examine witnesses.” EEO MD-110,
at Ch. 7, § I. Had Complainant requested a hearing, he would have
had the opportunity to cross-examine S1 and the AJ could have made
credibility determinations based on S1’s testimony. As Complainant
chose not to request a hearing, we do not have the benefit of an AJ’s
credibility determinations after a hearing; therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
While Complainant and S1 appeared to have a personality conflict, we are
simply not persuaded, based on the record before us, that Complainant
has shown that S1’s actions were in reprisal for his prior EEO activity.
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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/12/11_______________
Date
1 The Agency cited to the affidavits of Complainant and S1.
2 Although S1 was aware of Complainant’s EEO activity starting in June
2005 and continuing into early 2006, the Agency found that Complainant
did not show that S1 was aware that the EEO activity continued through
March 2007. Accordingly, the Agency determined that more than a year
had passed between S1’s awareness of Complainant’s EEO activity and
the alleged events at issue in the instant complaint, and that a year
was too long to establish a nexus.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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