Otis H.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120162036 (E.E.O.C. May. 3, 2018)

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

Otis H.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162036

Agency No. 200H-0005-2015103805

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the May 17, 2016 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist, GS-9, in the Agency’s Office of Information and Technology (OI&T) at
the Louis Stokes VA Medical Center in Cleveland, Ohio. Complainant claimed that between
June 3, 2015 and July 1, 2015, he received multiple Reports of Contact (ROCs) for incidents
such as “he said/she said” or for issues that were outside of the Agency’s policies. Many of the
ROCs reflected customer complaints regarding Complainant’s failure to resolve IT issues and
allegations that Complainant was unapproachable and rude. Complainant believed that his first-
level supervisor (S1) and his third-level supervisor (S3) encouraged customers to file the ROCs,
that the ROCs were excessive and unnecessary, and that he was treated more harshly than others.

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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In one ROC, S1 reported that in April 2015 Complainant left a mandatory meeting early.
Complainant acknowledged leaving the meeting before it was over, but claimed that he only
went to the restroom and the meeting was over when he returned. S3 refuted Complainant’s
explanation and stated in a ROC that he observed Complainant walk past a restroom and enter an
elevator during the mandatory meeting. S3 added that a review of video surveillance showed
that Complainant did not enter a restroom or return to the classroom.

In addition, customers submitted ROCs documenting several incidents in which Complainant
responded to their requests for assistance in a rude or unhelpful manner. For example, on May
11, 2015, a former Employee Relations Trainee reported that Complainant hung up on her while
she was trying to explain an error message she was receiving on Microsoft Lync and did not
attempt to fix her issue until the next day. On June 15, 2015, a Nursing Education Secretary
reported that she asked Complainant if it were possible to switch two printers for the Nursing
Education staff. The Secretary stated that Complainant interrupted her explanation, shook his
head, and said “No, it is easier for you to just switch the printer name on your computer” and “It
won’t let me.” The Secretary did not believe that Complainant understood her request because
he continuously interrupted her. The Secretary eventually ended the conversation, thanked
Complainant, and walked away. Several other employees also reported Complainant

On June 22, 2015, a customer, a Supply Systems Analyst, entered a service ticket reporting that
her computer was malfunctioning. Complainant closed the ticket the same day. The customer
emailed Complainant to inquire if she would be getting a new computer, but Complainant did not
respond to the email. On June 24, 2015, the customer contacted the Help Desk and a
representative informed her that Complainant had updated her computer. The customer
explained that Complainant could not have updated her computer because the computer was still
unable to be turned on. A new service ticket was entered.

On July 25, 2015, S1 issued Complainant a Proposed Admonishment for failure to properly
address a customer issue, conduct unbecoming a federal employee, and lack of candor. The
proposal cited the numerous ROCs related to customer service and Complainant’s dishonest
explanation for leaving a mandatory meeting early. Complainant responded to the Proposed
Admonishment. On August 19, 2015, S1 issued Complainant a Decision – Admonishment
upholding the charges cited in the Proposed Admonishment.

On July 18, 2015 (and amended on September 4, 2015), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (African-American), religion (Christian), age (57), and in
reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia,
between June 2015 and July 2015, S1 and S3 issued him multiple Reports of Conduct (ROC) for
incidents that occurred between April 14, 2015 and June 24, 2015; and S1 issued him an
Admonishment.

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
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Administrative Judge (AJ). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that that alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency concluded that
management had articulated legitimate, nondiscriminatory reasons for its actions. The Agency
found that there was no evidence supporting Complainant’s claim that S1 and S3 solicited
customer complaints against him. The Agency determined that the record showed that the ROCs
were properly received from OIT customers and presented to Complainant to inform him of his
job performance deficiencies. The Agency noted that S1 also had a pending EEO complaint
against S3. However, S1 conceded that Complainant’s work as an IT Specialist could sometimes
be problematic.

With respect to the Admonishment, S3 affirmed that it was issued due to Complainant receiving
several ROCs reporting poor workmanship. S3 confirmed that further investigation into the
ROCs validated the customers’ claims. S3 specifically identified one occasion where
Complainant closed out a customer ticket without actually resolving the issue. S3 stated that
other customer allegations, which included Complainant refusing to assist customers and
Complainant displaying rude behavior, were validated as well. S3 denied forcing S1 to provide
these ROCs to Complainant and acknowledged that he and S1 had a strained relationship. S3
stated that he would not have had an opportunity to order S1 to issue the ROCs because he chose
not to ever be alone with S1. S3 affirmed that the sole reason for issuing the Admonishment was
Complainant’s failure to properly respond to customer requests.

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 had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s stated reasons for its actions are false.
Complainant claims that the FAD ignored S1’s plain and unequivocal rejection of S3’s
justifications for issuing the ROCs. Complainant contends that S1’s affidavit shows that he was
forced by S3 to issue ROCs he was not comfortable issuing and that Complainant was singled
out. Complainant argues that the evidence does not support S3’s contention that the allegations
against Complainant were validated. Accordingly, Complainant requests that the Commission
reverse the FAD.

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

Complainant asserted that based on his protected classes, management subjected him to a hostile
work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that Complainant has not shown that he was
subjected to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. With respect to the ROCs, S3 stated that S1 issued them to Complainant for
multiple occurrences of closing out tickets without completing the work and unprofessional
behavior. ROI, at 211. In addition, S3 affirmed that Complainant received a ROC after he
walked out of a mandatory meeting and failed to provide an honest reason for doing so. Id. The
record contains numerous ROCs in which customers reported that Complainant closed service
request tickets without completing the work, responded rudely to customer requests for
assistance, and made little to no effort to assist customers. Id. at 284-95.

S1 stated that he issued the ROCs under the direction of S3 whether he was comfortable doing so
or not. ROI, at 197. While S1 believed that the matters raised in the ROCs were frivolous, he
did not dispute that the incidents occurred and conceded that Complainant displayed a lack of
candor in leaving a meeting early and his explanation for doing so. Id. at 204. Complainant’s
second-level supervisor stated that it was necessary for S1 to issue the ROCs because it was
important that customer complaints were addressed so that the employee could respond to the
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specific complaints. Id. at 229. S3 denied pressuring S1 to issue ROCs against Complainant;
rather, S3 stressed that it was the responsibility of S1 to follow up on ROCs received from
customers. Id. at 222. S3 affirmed that he advised S1 to consult with Human Resources while
working through this process. Id.

Finally, S1 stated that he issued Complainant the Admonishment based on S3’s instructions and
the advice of the Office of Human Resources. ROI, at 203. In the Proposed Admonishment, S1
charged Complainant with failure to properly address a customer issue, conduct unbecoming a
federal employee, and lack of candor. Id. at 275-79. The Proposed Admonishment cited
Complainant’s closing of a customer service request ticket without completing the work, several
instances of rude and unprofessional behavior toward customers, and Complainant leaving a
mandatory training early and providing a dishonest reason for doing so. Id. Following
Complainant’s response to the Proposed Admonishment, S1 issued a Decision – Admonishment
upholding the reasons cited in the Proposed Admonishment. Id. at 280-81. S3 affirmed that he
discussed the Proposed Admonishment with S1 and Human Resources and he supported issuing
the Admonishment to address Complainant’s customer service issues and to deter the behavior
from continuing. Id. at 219. S3 denied threatening or pressuring S1 into issuing the
Admonishment and stated that he never discussed these issues with S1 without another
management official present. Id. at 222.

After reviewing the record and considering the arguments on appeal, the Commission finds that
Complainant has not shown that he was subjected to a discriminatory hostile work environment.
Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant has not established that he was subjected to discrimination, reprisal, or a hostile
work environment as to all claims 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.

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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.
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.

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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

May 3, 2018
Date