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

Equal Employment Opportunity Commission

May 3, 2018

0120161409 (E.E.O.C. May. 3, 2018)

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

Owen M.,1
Complainant,

v.

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

Appeal No. 0120161409

Agency No. 200H-0630-2015102732

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 3, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping
Worker, WG-2, at the Harbor Veterans Affairs Health Care System (HVAHCS) in Brooklyn, New
York. During the relevant time, Complainant’s first level supervisor was the Environmental
Management Service (EMS) Supervisor (S1) and his second level supervisor was the General
Foreman (S2). Another EMS Supervisor (S3), who was not generally in Complainant’s chain of
command, was Complainant’s supervisor when S1 was not present.

Complainant worked the night shift on the evening of March 30, 2015, which ran from 3:30 p.m.
to midnight. On that evening, S1 was off work and S3 was the sole supervisor for all Housekeeping
Workers on the night shift. Complainant stated that he took his lunch break with another coworker
(W1) around 8:00 p.m. He stated that when he was on his way back from his break, S3 came out

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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of an elevator and they stared at each other. Complainant claimed that S3 looked at him and said,
“suck my dick.” Complainant stated he asked S3 what he said and S3 repeated, “suck my dick.”
Complainant stated S3 then left. Complainant noted that W1 was close by and he asked W1 if he
had heard what S3 stated and W1 said he had heard it.

Complainant stated that he informed S1 of the incident a day or two after the incident and received
no response. Complainant stated that he contacted an EEO Counselor on April 6, 2015.
Complainant admitted that prior to March 30, 2015, he did not tell S1 that S3 was being sexually
inappropriate.

Complainant noted that on March 30, 2015, S3 presented him with a Report of Contact, which
ultimately resulted in a Three-Day Suspension. This Report of Contact was related to an incident
which occurred earlier in the shift on March 30, 2015, around 3:30 p.m. when assignments were
being handed out to employees. Complainant contested his suspension through the union
grievance process, and it was not an issue raised in his EEO complaint. The suspension was later
reduced to a reprimand.

S3 denied Complainant’s allegations. S3 stated that at the beginning of the shift on March 30,
2015, an incident occurred with Complainant while he was handing out assignments that resulted
in him creating a Report of Contact regarding Complainant’s behavior. He stated that he served
this Report of Contact on Complainant, and only after that, did Complainant allege that S3 sexually
harassed him.

S1 stated that he did not recall receiving a letter from Complainant regarding the March 30, 2015
incident. S1 stated that if he did receive such a letter, he would have forwarded it up the chain of
command.

Complainant provided a letter dated April 10, 2015, addressed to S1, regarding the allegations
occurring on March 30, 2015.

S2 stated that she witnessed the incident at the beginning of the shift on March 30, 2015, and that
she created a Report of Contact as a result of Complainant’s behavior. She stated that Complainant
had made unsubstantiated allegations of sexual harassment against her in the past. S2 stated that,
in general, some use of foul language or curse words occurs among the housekeeping staff, but
nothing excessive.

W1 stated that S3 harassed him and created a hostile work environment. He stated that he heard
S3 tell Complainant “suck my dick” two times on March 30, 2015. W1 stated the comment
“seemed suggestive.”

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On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when:

On March 30, 2015, his shift supervisor told him, on two separate occasions, to “suck
my dick.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
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.

ANALYSIS AND FINDINGS

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, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

At the outset, we note that Complainant does not challenge the definition of his complaint as
framed by the Agency. Moreover, we find the record in the present case was adequately
developed.

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). The
harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the
complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc, EEOC
Notice No. 915.002 (Mar. 8, 1994).

Upon review, we find the alleged incident was not sufficiently severe or pervasive to establish a
hostile work environment. Complainant’s sexual harassment claim consists of a comment made
by S3 twice during one conversation. A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982).
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For purposes of this decision, the Commission assumes the comment was made as alleged by
Complainant. However, we note that whether the statement was a rude comment or a proposition
it was made during a single conversation, was not severe, physically threatening, or an
unreasonable interference with Complainant’s work performance. We note there was no physical
contact, no alleged physical contact, and no physical intimidation involved. The Commission finds
that the insularity and isolated nature of the conduct at issue was insufficiently severe or pervasive
to establish sexual harassment or a discriminatory hostile work environment.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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

May 3, 2018
Date