Mitchell G.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141814 (E.E.O.C. Oct. 20, 2016)

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

Mitchell G.,1
Complainant,

v.

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

Appeal No. 0120141814

Agency No. 200H-0310-2013101860

DECISION

The Commission accepts Complainant’s appeal from the March 12, 2014 final Agency decision
(FAD) 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Veterans Service
Representative at the Veterans Service Center at the Agency’s Regional Office in Philadelphia,
Pennsylvania. On February 19, 2012, Complainant was removed from the Agency due to
unacceptable performance and for failure to complete the performance improvement plan.
Complainant filed a Merit Systems Protection Board (MSPB) appeal regarding his removal.
The MSPB overturned the removal action on procedural grounds, and restored him to his
position.

On February 11, 2013, Complainant’s manager (M1) re-issued Complainant a Notice of
Proposed Removal due to unacceptable performance and failure to complete the performance

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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improvement plan. Complainant was given the opportunity to respond and was placed on
administrative leave during the pendency of the removal action. While on administrative
leave, Complainant’s access to the facility was limited to public areas, and he was prohibited
from visiting any employee or work area.

In May 2013, the Agency issued a vacancy announcement for a Management and Program
Analyst (Change Management Agent) position. Complainant applied for the position online.
On June 20, 2013, Complainant was notified that he was not referred for consideration for the
position. On July 9, 2013, management issued Complainant a Decision Notice informing him
that he was removed from his position with the Agency for unacceptable performance.
Complainant filed a second MSPB appeal regarding the removal.

On November 15, 2013, Complainant and all other Philadelphia Regional Office employees
received an email with the subject line of “Available Avenues of Redress for VA Employees
Regarding Employment.” The email noted that numerous employees had taken it upon
themselves to contact the Secretary or other very senior Agency leadership members
expressing their desire to have the leader intervene in personnel issues or other workplace
disputes. The email encouraged employees to utilize their chain-of-command to resolve these
issues. In addition, the email stated that the grievance and complaint forums were available to
resolve disputes and that circumventing these processes and contacting senior leaders was an
inappropriate avenue of redress.

On May 8, 2013 (and amended on June 20, 2013), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of sex (male), disability, age (54), and in reprisal for prior protected
EEO activity as evidenced by multiple incidents including, inter alia, from February 11, 2013,
through July 9, 2013, his manager placed him on administrative leave limiting his access to the
facility; on June 20, 2013, he received notification he was not referred for consideration for a
Management & Program Analyst (Change Management Agent) position under Vacancy
Announcement No. 883910; and upper management sent him an email stating that “employees
are reminded not to use this inappropriate avenue of redress.”2

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

2 The Agency dismissed several additional claims as having already been raised in the
negotiated grievance procedure that permitted allegations of discrimination and having already
been raised in an appeal to the MSPB. Complainant did not specifically raise any challenges to
the dismissal of these claims; therefore, the Commission will not address those claims in this
decision.
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In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Additionally, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. For example, as
to his placement on administrative leave, management stated that it was appropriate to place
Complainant on administrative leave because he had not been performing his duties for nearly
a year and refused to participate in training in connection with the performance of his duties
while the decision regarding his removal was pending. As a result, management decided that
allowing Complainant full access to the facility was futile.

Regarding his non-selection, the Subject Matter Expert (SME) for the vacancy and the Human
Resources Specialist evaluated the applicants’ qualifications, as presented through their
application packages, comparing them against the applicable rating factors. Thereafter, SME
scored the applicants, giving the highest scores to those whose qualifications demonstrated that
they possessed the Knowledge, Skills, and Abilities (KSAs) required for the position pursuant
to the rating factors. Further, the Agency determined that the record reflected that the
cumulative application scores showed a natural break at the score of 13, the minimum score an
applicant must have earned to receive further consideration. Complainant did not meet the
cutoff needed to receive further consideration as he earned a score of 7. The Selectee earned a
score of 17. As a result, Complainant was not referred for further consideration.

Finally, the Agency noted that Complainant raised a claim of per se reprisal regarding the
November 15, 2013 email. The record showed that upper management sent Complainant and
all other employees the above-referenced email in response to employees emailing various
officials in upper management, including the Secretary of Veterans Affairs and other officials
in senior leadership positions, to request that they intervene in resolving personal issues and
other workplace disputes. Management attached a memorandum setting forth a summary of
the “appropriate avenues” for addressing personal and workplace-related concerns. In the
body of the email, upper management stated that employees are encouraged to utilize their
respective chains-of-command to appropriately address these concerns via the grievance or
complaint process “rather than circumventing the process by contacting senior leaders with the
agency directly.” The sentence immediately following this statement provides that “employees
are reminded not to use this inappropriate avenue of redress.” Thus, the Agency determined
that the record was clear that the email in question encouraged Complainant to pursue his
concerns through the appropriate avenue of choice, i.e., the grievance or complaint process,
rather than directly contacting senior leaders. Accordingly, the Agency found that
Complainant’s claim of per se reprisal must fail.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant has not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL
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On appeal, Complainant argues generally that the Agency violated the collective bargaining
agreement, sabotaged him, and illegally terminated him. Accordingly, Complainant requests
that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the 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).

Therefore, 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. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his protected classes, management subjected him to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to him. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. For example, Complainant was placed on
administrative leave and his access to the facility was restricted because he had not performed
his duties for almost a year and there was no training available for him while the removal
action was pending. ROI, at 141, 153-54. As Complainant was not an active member of the
workforce, there was no reason for him to be at the facility. Id. at 155.

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With respect to his non-referral for further consideration for the Management and Program
Analyst position, SME stated that she and the Human Resources Specialist reviewed the
application packets for the candidates and assessed the candidates based on the KSAs relevant
to the position. ROI, at 161. SME confirmed that the scoring process was based solely on
each applicant’s possession and demonstration of the requisite KSAs. Id. at 162. Based upon
a review of his application materials, SME rated Complainant an overall score of 7. Id. SME
noted that Complainant’s application materials did not provide sufficient information
demonstrating the quality of his professional performance. Id. Thus, SME could only
presume some possession of the ranking factors by virtue of his employment with the Agency,
but she could not assign any kind of an evaluative score. Id. The cumulative application
scores showed a natural break at 13, the minimum score needed to receive further
consideration. Id. at 163. As a result, Complainant was not referred for further consideration.

Regarding the November 15, 2013 email, the Commission finds that the email at issue does not
rise to the level of per se reprisal. The email requested that all employees refrain from directly
contacting senior leadership officials in pursuit of resolution of their workplace disputes and
issues and instead encouraged employees to utilize the appropriate venues for addressing these
issues, i.e. the grievance process or all other complaint processes. ROI, at 121-122. The
Commission finds that the context of the entire email reveals that this email was not an attempt
to interfere with or otherwise dissuade Complainant’s EEO activity.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to 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 (M0416)

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:

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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 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. The requests 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 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. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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

October 20, 2016
Date