Milan S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

0120181192 (E.E.O.C. Aug. 16, 2019)

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

Milan S.,1
Complainant,

v.

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

Appeal No. 0120181192

Agency No. 2003-0549-2017100729

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 9,
2018, 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., 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.

BACKGROUND

During the period at issue, Complainant worked as a Time and Leave Clerk, GS-5, at the
Agency’s Dallas VA Medical Center in Dallas, Texas.

On December 12, 2016, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected him to discrimination and a hostile work environment based on his race
(Black and American Indian), sex (male), disability, age (YOB: 1971), and in reprisal for prior
protected EEO activity when:

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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1. on September 1, 2016, the Lead Time and Leave Clerk (“Lead Clerk”) asked
Complainant if he was married and stated, “I bet you slept with a lot of women
since you are single, did you have a vasectomy?”

2. on September 14, 2016, the Lead Clerk stated to Complainant, “When I was a
dispatcher I use[d] to f_ck the VAMC, Dallas Police Chief . . . do you f_ck with
white girls . . . look over there that white guy (employee) f_cked a black girl
(employee) and the black girl was fired.”

3. on September 14, 2016, the Lead Clerk stated to Complainant, “You are a man
and you are trying to take over because you men always try and take over.”

4. on September 15, 2016, the Lead Clerk asked Complainant, “Why is the agency
hiring all these Indians, they are making all the money?”

5. on September 16, 2016, Complainant became aware that the Administrative
Officer asked the Lead Clerk why she hired Complainant, he filed an EEO
complaint.2

6. from October 5, 2016 through November 21, 2016, the Lead Clerk denied
Complainant the hands-on training of how to perform his duties when she
instructed him not to use the computer.

7. on October 14, 2016, the Administrative Officer stated to Complainant, “I know
where you come from, and I have friends in high places that will do favors for
me.”

8. on October 18, 2016, the Lead Clerk singled out Complainant when she instructed
him when to take a break, a lunch break, and where to take a break in the hallway.

9. on October 27, 2016, the Lead Clerk stated to Complainant, “you are trying to
take my position . . . it appears you are trying to learn this position too fast.”

10. on October 29, 2016, the Lead Clerk told Complainant that he could not answer
the phone, and not to answer the office door.

11. on October 31, 2016, the Lead Clerk stated to Complainant, “You will be fired if
you do not learn this job.”

12. on November 3, 2016, the Lead Clerk stated to Complainant, “You are moving
too slow.”

2 The record reflects that the Administrative Officer is Complainant’s first level supervisor
(“S1”).
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13. on November 7, 2016, the Lead Clerk stated to Complainant, “I can’t speak
Spanish, but I should have a lot of Spanish grandkids because my son has slept
with plenty of Spanish girls.”

14. on November 8, 2016, the Lead Clerk asked Complainant, “Why is the VA hiring
all these older people, they should be hiring young people, young people need
jobs too?”

15. on November 8, 2016, the Lead Clerk denied Complainant’s request to leave to
go vote.

16. on November 9, 2016, the Lead Clerk on several occasions yelled at Complainant
when he picked up her phone, when she needed the answer to questions when she
had no answer, and during a staff meeting.

17. on November 10, 2016, the Lead Clerk denied Complainant’s request to take an
early lunch to participate in the Marine Corps Birthday Celebration.

18. on November 18, 2016, the Lead Clerk yelled at Complainant, “You will be
fired.” and

19. on November 21, 2016, the Chief of Human Resources Management Service
issued Complainant a letter of termination during his probationary period.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a final decision.

On February 9, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues that the Lead Clerk’s testimony
should be “thrown out” because the Lead Clerk did not sign her affidavit.3 Complainant further
argues that he did report the alleged incidents to management. Complainant also identifies
several witness statements supporting his claim that the Lead Clerk subjected him to a hostile
work environment.

3 The record supports that the Lead Clerk failed to sign her affidavit despite requests from the
EEO investigator for her to do so. However, we find that even without her signature, there is
sufficient evidence in the record for us to address the merits of these claims.

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ANALYSIS AND FINDINGS

Disparate Treatment: Claims 6 and 19

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant testified that he is a permanently 100% disabled military veteran. Specifically,
Complainant stated that he has carpal tunnel, cubital tunnel, tarsal tunnel, Post Traumatic Stress
Disorder (“PTSD”), irritable bowel movement, frequent use of restroom, arthritis in the shoulder,
elbow, and ankles, a torn thigh, and back injuries. Complainant further stated that his PTSD
makes it harder for him to focus, his carpel tunnel slows down his typing, and his irritable bowel
movement disorder requires frequent trips to the restroom. Complainant explained that he was
diagnosed with these conditions in 2006 or 2007.4

Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding claim 6, the Lead Clerk denied instructing Complainant not to use a computer. The
Lead Clerk explained that Complainant received the majority of his training from a Coworker
(“CW1”) because she was out of the office on leave. The Lead Clerk explained that she decided
to step in and provide Complainant additional training, more training than the average person,

4 We presume, without so finding and for purposes of analysis only, that Complainant is an
individual with a disability.
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after Complainant was “not catching it so well [and] was still having problems.” The Lead Clerk
further explained that, at one point, she “brought [Complainant to her] side and [she] sat with
him and let [him] watch [her] do it.” The Lead Clerk stated that Complainant still had problems
completing his work when she would let him complete assignments on his computer. The Lead
Clerk further stated that she instructed Complainant to let his supervisor (“S1”) know that he was
having problems with his training.

S1 testified that Complainant did not report to him that the Lead Clerk allegedly instructed him
not to use a computer. S1 explained that Complainant was assigned a workload and would have
to use a computer to complete his assignments.

CW1 explained that she initially provided Complainant hands-on-training but then the Lead
Clerk took over this assignment. CW1 further explained that the Lead Clerk took Complainant
off the computer and required him to study the written timekeeping manual for two or three
weeks, per S1’s instruction. CW1 further explained that the Lead Clerk claimed that
Complainant was taken off the computer and required to read the manual because there was
information Complainant still did not know.

The Nurse Manager stated that she recalled a period when Complainant did not use a computer.
The Nurse Manager explained that during this period, Complainant had access to a computer but
was not using it because he was sitting next to the Lead Clerk so that he could learn the process.

The record includes a copy of Complainant’s training schedule indicating that he received
training by CW1 for the first four weeks and he received additional four weeks of training from
the Lead Clerk.

Regarding claim 19, S1 clarified that his supervisor, the Associate Director for Patient Care
Services (“S2”), requested that Complainant’s appointment be terminated and S1 issued
Complainant the termination letter during his probationary period. S1 explained that
Complainant still had performance problems after receiving initial training by CW1 and
additional training by the Lead Clerk. S1 further explained that he personally observed
Complainant’s work by sitting down with him on occasions and asking him to guide him through
certain procedures. S1 stated that Complainant’s employment was terminated because
Complainant could not perform the essential functions of his job. Specifically, S1 stated that
Complainant could not post a time card even after he was provided additional training. S1
explained that he presented this information to S2 who then recommended Complainant’s
termination.

The Human Resources Specialist testified that management may terminate a probationary
employee’s employment, without or without counseling, once management determines that an
employee is not demonstrating the fitness or qualifications for the position. The Human
Resources Specialist further testified that management is not required to provide advanced
written notice of a termination for a probationary employee.

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The record includes a November 15, 2016 letter from the Lead Clerk to S1 explaining that
Complainant did not know how to “load any tours,” had “problems applying time,” and did not
know “the basic concept of time or being a timekeeper” after having received 8 weeks of
training.

The record includes a copy of a November 21, 2016 termination letter issued to Complainant.
The letter states that S2 requested that Complainant’s employment be terminated during his
probationary period because Complainant’s “inability to perform [his] duties in a satisfactory
manner” despite receiving additional training with a different trainer.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, disability, age, and reprisal for prior protected EEO activity.

Hostile Work Environment – Claims 1-5, 7-18

To establish a claim of harassment, Complainant must show that: (1) she is a member of the
statutorily protected class; (2) she 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 her 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 Service, 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). The evaluation “requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a
“general civility code.” Id.

The remaining claims do not support a finding that the Agency subjected Complainant to
discriminatory harassment.

Regarding claim 1, the Lead Clerk denied making these statements and stated that she “would
never get into anything personal with an employee like that.”

CW1 testified that she heard the Lead Clerk ask Complainant if he was married, and she heard
the Lead Clerk tell Complainant that he flirted and slept with a lot of women. CW1 denied
hearing the Lead Clerk ask Complainant whether he had a vasectomy. CW1 stated that she did
not recall Complainant informing the Lead Clerk that he was offended by her comments.
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Complainant stated that he did not report this specific incident to S1, but he did report “issues
about [the Lead Clerk] yelling and [the Lead Clerk’s] mistreatment” which Complainant states
that S1 responded by saying, “do you really want this job?”

Complainant further stated that he “kind of laughed” off the Lead Clerk’s statement, but left like
the incident was sexual harassment.

S1 denied that Complainant reported this alleged incident to him.

The Health Systems Specialist denied hearing the Lead Clerk state the comment at issue.

Regarding claim 2, the Lead Clerk denied making these statements.

CW1 stated that the Lead Clerk talked about her prior position as a dispatcher, but CW1
explained that she did not hear the Lead Clerk make the comments at issue. However, CW1
stated that she did hear the Lead Clerk ask Complainant whether he had been with white girls.
CW1 also stated that the Lead Clerk discussed with Complainant an incident where an African
American female employee was fired after becoming involved with a white male. CW1 further
explained that she did not always hear what the Lead Clerk said because she would keep her
earphones on, and the Lead Clerk would wait until she was out of the office to speak to
Complainant or the Lead Clerk would speak to Complainant in another office.

Complainant stated that he did not tell the Lead Clerk to stop making this comment because he
did not feel comfortable doing so. Complainant stated he that “if I did tell someone it would
have been outside the VA, because at that point I was so intimidated to say anything to anybody
at the VA because of the repercussions.”

S1 denied that Complainant reported this alleged incident to him.

Regarding claim 3, the Lead Clerk denied making these statements.

CW1 testified that the Lead Clerk made the comment at issue. CW1 explained that it was “like a
hostile work environment for [Complainant] . . . [The Lead Clerk] was just on him for some
reason” and CW1 did not know why. CW1 stated that Complainant reported the issue to S1
“several times.”

The Health Systems Specialist denied hearing the Lead Clerk make the comment at issue.

Complainant stated that he did inform the Lead Clerk that her comment made him uncomfortable
because he left that the Lead Clerk “would not help him completely to her full ability because
she felt like [he] was there to try to take her position.”

S1 denied that Complainant reported this alleged incident to him.
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Regarding claim 4, the Lead Clerk denied making the statements at issue.

Complainant stated that he did not inform the Lead Clerk that her comment made him
uncomfortable and confirmed that he did not report this incident to upper management.

S1 denied that Complainant reported this alleged incident to him.

Regarding claim 5, S1 denied asking the Lead Clerk the question at issue. S1 explained that he
was “confused” by this statement because the Lead Clerk does not have any hiring authority. S1
further explained that the Lead Clerk was part of a panel, but that he (S1) had hired Complainant.
S1 stated that Complainant did not report this issue to him.

The Lead Clerk denied telling Complainant that S1 questioned why she hired him. The Lead
Clerk further stated that she was unaware of Complainant’s prior EEO activity and she did not
have the authority to hire anyone.

Complainant stated that he did not report this alleged incident to upper management.

Regarding claim 7, S1 denied making the statement at issue. S1 explained that he did not know
anything about Complainant’s history or prior job experience before Complainant worked at the
Agency.

The Lead Clerk denied having any first-hand knowledge of S1 allegedly making this statement.

Regarding claim 8, the Lead Clerk denied instructing Complainant on when and where to take
his breaks. The Lead Clerk stated that she was unaware where Complainant took his breaks.
The Lead Clerk acknowledged that she did not have any authority to tell Complainant when he
could take a break because she was not his supervisor.

S1 explained that breaks and lunches are negotiated by him, but the Lead Clerk was responsible
for reminding employees to take their breaks. S1 further explained that he informed all staff to
contact him directly if there was a problem with the break schedule. S1 stated that Complainant
never reported any issue regarding his breaks to him.

CW1 stated that S1 was responsible for setting employees’ lunch and break times but the Lead
Clerk tried to micromanage S1. CW1 further stated that Complainant would take his breaks in
the hallway because the Lead Clerk did not want him taking breaks at his desk. CW1 explained
that the Lead Clerk did not have the authority to dictate where Complainant took his breaks.

Complainant’s other Coworker (“CW2”) stated that she did not hear the Lead Clerk instruct
Complainant to sit in the hallway, but she saw Complainant in the hallway. CW2 further stated
that the Lead Clerk was “rude” and “aggressive” towards “everybody,” but she did not think that
the Lead Clerk was discriminatory.
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Regarding claim 9, the Lead Clerk denied making the statements at issue. The Lead Clerk
further stated that the day at issue was her son’s birthday and she is typically not at work on this
day.

Complainant explained that he did not inform the Lead Clerk know that her statement was
unwelcomed because Complainant believed that if “[he] said anything, it’s going to be more
hostile.” Complainant further explained that he did not report this alleged incident to upper
management.

CW1 testified that she heard the Lead Clerk make this statement but CW1 explained that she
believed that the Lead Clerk was “joking.”

S1 stated that that Complainant did not report this alleged incident to him. S1 further explained
that the Lead Clerk was the “best” at her position and she had no reason feel threatened by
Complainant.

Regarding claim 10, the Lead Clerk denied ever telling Complainant not to answer the door or
the phone. The Lead Clerk also stated that this alleged incident occurred on a Saturday and
Complainant did not work on Saturdays.

Complainant explained that he did not report this incident to anyone because the Lead Clerk told
him that upper management also did not want him to answer phone.

S1 stated that Complainant’s position required him to respond to phone calls and all staff
employees had phones on their desks. S1 also stated that the office had certain hours for people
to visit the office and those hours are posted outside of the office door.

CW1 testified that she heard the Lead Clerk tell Complainant not to answer the door or the phone
without providing an explanation. However, CW1 stated that the Lead Clerk also instructed
another new employee not to answer her phone while she was out of the office.

S1 stated that that Complainant did not report this alleged incident to him.

Regarding claim 11, the Lead Clerk denied telling Complainant that he will be fired if he did not
learn his job. The Lead Clerk further stated that she does not have the ability to fire anyone.

Complainant explained that he did not report this alleged incident to upper management, and S1
stated that that Complainant did not report this alleged incident to him.

Regarding claim 12, the Lead Clerk denied telling Complainant that he was moving too slow.

Complainant stated that he did not report this alleged incident to upper management and S1
stated that that Complainant did not report this alleged incident to him.
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Regarding claim 13, the Lead Clerk stated that she does not discuss her son with anybody and
denied having the alleged discussion at issue with Complainant. The Lead Clerk further denied
having any personal discussions with Complainant.

Complainant stated that he did not report this alleged incident to management because he “didn’t
want [any] more hostility.”

CW1 and the Health Systems Specialist denied hearing the Lead Clerk make the comment at
issue.

S1 stated that that Complainant did not report this alleged incident to him.

Regarding claim 14, the Lead Clerk denied making the comment at issue and CW1 denied
hearing the Lead Clerk make the comment at issue.

Complainant explained that he did not report this alleged incident to upper management.

S1 stated that that Complainant did not report this alleged incident to him. S1 explained that he
did not understand this statement because he has a “diverse group of individuals that work for
[him].”

Regarding claim 15, the Lead Clerk stated that all employees get one hour to vote. The Lead
Clerk further stated that she does not have the authority to deny or approve anyone’s leave. The
Lead Clerk explained, that to her recollection, Complainant voted that day.

Complainant clarified that he did not ask the Lead Clerk permission to leave work to go vote.
Rather, Complainant stated that the Lead Clerk informed him that she would request overtime
from S1 for herself and CW1 because they did not use any time to vote. Complainant stated that
he asked the Lead Clerk if he could also have overtime, but the Lead Clerk did not respond.
Complainant further stated that he did not report this incident to upper management.

CW1 did not recall the Lead Clerk denying Complainant’s request to leave the office to go vote.

S1 stated that that Complainant did not report this alleged incident to him. S1 explained that
Complainant was required to contact him to request leave to vote and S1 explained that the Lead
Clerk had no authority to approve or deny this request.

Regarding claim 16, the Lead Clerk denied yelling at Complainant.

CW1 stated that she heard the Lead Clerk yell at Complainant more than once and on one
occasion, Complainant asked the Lead Clerk to stop yelling at him. CW1 further stated that the
Lead Clerk yelled and raised her voice at other employees “all the time.”

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The Health Systems Specialist testified that the Lead Clerk “never yelled or disrespected
[Complainant] or anyone else.” The Health Systems Specialist further stated that observed that
Complainant was always “defensive” with the Lead Clerk, Complainant would “always make
comments that he wanted to be in charge,” and Complainant “didn’t like the fact that he had to
be a subordinate to listen to [the Lead Clerk].”

Complainant stated that he did not report this incident to upper management and S1 stated that
Complainant did not report this alleged incident to him.

Regarding claim 17, the Lead Clerk stated that she did not deny Complainant from attending the
birthday celebration luncheon and she believed that S1 approved Complainant to attend. The
Lead Clerk further stated that she believed Complainant did attend the luncheon because he
brought some cake when he returned to the office. The Lead Clerk also stated that she had to
remind Complainant to ask S1 for leave requests because she was only the lead and S1 was the
only one to approve leave requests.

Complainant stated that he did not report this incident to S1 and S1 stated that Complainant did
not report this alleged incident to him. S1 explained that Complainant would have had to ask
him for permission to take an early lunch. S1 stated that Complainant did not ask him to take an
early lunch on the date at issue.

Regarding claim 18, the Lead Clerk denied making this statement.

Complainant stated that he did not report this incident to upper management and S1 stated that
that Complainant did not report this alleged incident to him.

We acknowledge that the record contains testimony from other witnesses regarding their
experiences working with the Lead Clerk. Another Nurse Manager (“NM2”) stated that the Lead
Clerk could be “very demeaning, very aggressive, and just very rude.” NM2 further stated that
the Lead Clerk participated in “inappropriate behavior” when she called “[NM2] and other nurse
managers crazy.” NM2 also stated that the Lead Clerk would yell at people and “hang up in
people’s faces” when they sought her assistance to complete their job.

Two coworkers (“CW3” and “CW4”) employed after Complainant left the Agency testified that
the Lead Clerk told them “inappropriate personal things about [CW1].” CW3 stated that the
Lead Clerk yelled at her, threatened her job, and was a “horrific person.” CW4 stated that

if you don’t share personal things with [the Lead Clerk] and try to pretty much be her
friend, you’re pretty much going to be on her bad side . . . If you just try to remain
business professional, and just talk to her about work and leave it at that, just work, she
will make sure things are hard for you. And that’s why things were hard for me.

We further acknowledge that these testimonies and testimonies from CW1 and the Health
Systems Specialist refute, and in a few instances, support Complainant’s claims that the Lead
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Clerk subjected him to a hostile work environment. Additionally, the record supports that the
Lead Clerk denied her involvement in the alleged incidents and S1 denied any knowledge of
Complainant’s claims which directly conflict with Complainant’s statements. Here, however,
Complainant effectively waived his right to have this matter considered before an EEOC AJ
when he requested that the Agency issue a final decision. If Complainant had not requested a
final decision, then the AJ may have developed the record more through discovery and cross-
examination of witness. Moreover, we lack the possible benefits of an EEOC AJ’s credibility
determinations. We are left with Complainant’s version of events and that of Agency
management which are completely at odds. As such, the evidence of record was at best, in
equipoise. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No.
0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No.
0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug.
23, 2012).

Moreover, considering these allegations, even if true, Complainant has not shown evidence that
considerations of his race, sex, disability, age, or retaliatory animus motivated management’s
actions toward Complainant. The record supports a determination that several employees
testified that the T Lead Clerk yelled at and participated in inappropriate personal discussions
about other employees, not just Complainant. CW2 testified that the Lead Clerk was “rude” and
“aggressive” towards “everybody.” MN2 testified that the Lead Clerk was “very demeaning,
very aggressive, and just very rude.” While these statements indicate that the Lead Clerk created
a less than desired work environment, there is insufficient evidence in the record that the Lead
Clerk’s treatment toward Complainant was based on his protected bases. Additionally, several
incidents Complainant alleged the Lead Clerk to have conducted were outside of the Lead
Clerk’s authority. Specifically, the Lead Clerk was not a supervisor and did not have the
authority to hire or terminate Complainant nor did she have the authority to approve or deny
Complainant’s leave requests or requests for an early lunch. We further find that these incidents
Complainant alleges are not sufficiently severe or pervasive as to constitute hostile work
environment/harassment under Commission regulation. The incidents involved are of a type
that typically arise out of workplace conflicts or communications. However, EEO laws are not a
civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review
of the record, including Complainant's contentions on appeal, we find that Complainant failed to
demonstrate that the Agency discriminated against him as alleged.

Finally, we find that Complainant also failed to establish a claim of discriminatory harassment
because there is no basis for imputing liability to the employer. In the case of co-worker
harassment, as here, an agency is responsible for acts of harassment in the workplace where the
agency (or its agents) knew or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action.

In this case, the record supports that the Lead Clerk was not Complainant’s supervisor, rather, S1
was Complainant’s immediate supervisor. The record further supports that Complainant testified
that he did not report the alleged incidents to S1 or to upper management nor did Complainant
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inform the Lead Clerk that her actions were offensive to him. Additionally, S1 testified that
Complainant did not report the alleged incidents to him. Consequently, there is insufficient
evidence in the record to support that the S1 knew or should have known of the conduct
Complainant alleged. Therefore, we find that there is no basis for imputing liability to the
employer.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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

August 16, 2019
Date