Philip H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120171584 (E.E.O.C. Nov. 6, 2018)

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

Philip H.,1
Complainant,

v.

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

Appeal No. 0120171584

Hearing No. 470-2016-00085X

Agency No. 200H05382015103823

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 2, 2017, finding no discrimination
with regard to his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cardiologist, GS-
15, at the Department of Veterans Affairs Medical Center (VAMC) in Chillicothe, Ohio.
Complainant is Jewish. Complainant interviewed for a position with VAMC in October 2012,
and was hired in December 2012. On August 28, 2013, Complainant received a notice of
summary suspension, which indicated that a decision regarding his clinical privileges would be
rendered by the Medical Staff Executive Committee within 14 business days of the notice. Prior
to the expiration of the 14-day period, Complainant resigned, effective September 14, 2013.

On July 21, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him
to a hostile work environment based on religion (Jewish) 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. In October 2012, during Complainant's initial interview with the Chief of Staff
(COS), the COS failed to greet Complainant, failed to look at him, and only
showed him the back of her head.
2. In December 2012, upon hiring Complainant, the Agency offered him a listing of
temporary housing consisting of dirty, substandard apartments.
3. In January 2013, after COS assured Complainant that he could read nuclear
studies, the Chief of Radiology informed him that he would never read nuclear
scans while at the facility.
4. In March 2013, COS scolded Complainant about an ancient Jewish custom of
partaking of matzo.
5. In August 2013, COS would not approve of Complainant reading nuclear scans as
previously promised, because he could not be credentialed to do so due to his lack
of assignments of recent readings.
6. On August 28, 2013, Complainant was informed that he would be placed on
administrative leave and COS scheduled a hearing for September 4, 2013, to
conflict with the same period of Jewish religious High Holy Days and
Complainant’s leave.
7. In December 2014, Complainant became aware of a negative letter from the
Chillicothe VAMC to a potential employer at a private hospital indicating that he
did not get along with others.
8. On May 6, 2015, Complainant received a letter addressed to a Congressman
signed by an Agency official with false allegations he believed was authored by
COS.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ) but subsequently withdrew his request. Consequently, 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. The
decision found that Complainant failed to provide evidence to establish a discriminatory animus
or that the Agency’s actions rose to the level of severe or pervasive to constitute unlawful
harassment. Complainant filed the instant appeal from the Agency decision.

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”).
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In the instant case, the Agency found Complainant failed to establish he was subjected to a
hostile work environment based on his religion. 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). Thus, not all
claims of harassment are actionable. 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).

Regarding claims (1) and (2), assuming, arguendo, these allegations are true, Complainant failed
to produce any evidence to establish how these actions were related to his religion. COS and
Complainant disagree as to the circumstances of his initial interview. COS denied knowledge of
Complainant’s religion until after he filed his complaint. Complainant alleged that he wears a
Star of David, which would have been visible at his interview, and a review of his resume leads
one to believe that he is Jewish. Regardless of whether it was a one-on-one interview or in a
room with others, Complainant failed to establish how COS’s behavior towards him was based
on his protected basis. Regardless of COS’s alleged behavior, Complainant was offered and
accepted the position after the interview.

Additionally, a VAMC Administrative Officer for the COS admitted she assisted Complainant
with finding housing in the area. She clarified the VAMC did not offer housing to new
employees. However, Chillicothe is a small town with limited housing so she assisted
Complainant in finding housing options near the medical center per his request. Just like when
the VAMC Administrative Officer started at VAMC, Complainant was offered temporary
housing (1-2 nights) on the government campus but both the VAMC Administrative Officer and
Complainant declined due to the condition of the quarters. Nothing Complainant alleged
demonstrates that these actions if true were discriminatory in nature.

Regarding claims (3) and (5), COS and Complainant disagree on whether he was orally promised
the opportunity to read nuclear studies. A witness stated Complainant asked during his interview
if he would have the chance to be certified to read nuclear scans to which COS answered
“absolutely.” Later, when he expressed a desire to read nuclear scans, COS explained to him the
VA already had a fully staffed and credentialed team of physicians at the Cincinnati VAMC
specifically assigned with reading their facility’s nuclear medicine studies. Under the VAMC
criteria for privileges in nuclear medicine, even if Complainant met the qualification and clinical
experience required for privileges, a Care Line Manager, COS, and the Director of VAMC
Chillicothe still had to approve Complainant.
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Complainant never argued official readings of nuclear scans was a part of the job description.
The position Complainant was hired for was Staff Cardiologist. Although Complainant
expressed a desire to read nuclear studies, he has not provided any evidence to support the
assertion that providing official reading of nuclear scans was a term of his employment which he
was denied. Assuming, arguendo, he could establish reading nuclear scans was a term of his
employment, Complainant has not provided any evidence to establish that his denial was based
on his protected status.

Regarding claim (4), COS denies this incident ever happened and also denies that she was aware
Complainant was Jewish until he filed his complaint. Complainant alleged the COS scolded him
for practicing an ancient custom of his religion. The Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo
v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
EEOC Request No. 05940695 (Feb. 9, 1995). Complainant did not provide specific facts of this
incident or any allegation of action taken by COS in conjunction with this comment.
Complainant alleged this incident occurred in March 2013, and the next allegation of
discriminatory action by the Agency did not occur until August 2013. Accordingly, we find this
incident is not sufficiently severe or pervasive to alter the conditions of his employment and
create a hostile working environment.

Regarding claim (6), Complainant asserted the Agency’s act of issuing him a summary
suspension when he had requested leave for a religious holiday was a discriminatory action
based on his religion. The record establishes that Complainant’s leave request was approved in
June 2013, by an VAMC supervisory physician, not COS. However, due to concerns over the
safety of staff and patients, the Agency determined it was necessary to take immediate action and
issue a summary suspension on August 28, 2013. The COS was on leave when the summary
suspension was issued. The Deputy Chief of Staff issued a summary suspension notice after it
was reported Complainant made threatening comments towards a former colleague and his
family as well as an incident the day prior to his suspension involving Complainant’s conduct
towards VAMC staff. The record establishes that prior to his suspension, Complainant was
counseled by COS on August 7, 2013, regarding his behavior towards staff and in front of
patients. Accordingly, Complainant failed to establish the summary suspension was based on his
religion instead of concerns over Complainant’s conduct and the safety of hospital personnel.

Moreover, the hearing on his summary suspension was set for September 4, 2013; however, the
record establishes he only requested leave for September 5-6th for the religious holiday.
Complainant was still allowed to take leave for the religious holiday. In fact, Complainant was
approved to take five days of leave through the date his resignation was effective.

Regarding claims (7) and (8), assuming, arguendo, Complainant established a prima facie case,
we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The
record indicated Complainant was investigated, counseled, and placed on a summary suspension
for his behavior towards hospital personnel.
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COS admitted when Complainant’s potential employers sought a reference letter, she wrote the
same review and noted Complainant had trouble getting along with hospital staff. COS denied
ever mentioning the suspension notice, the circumstances of his resignation, or the investigation
conducted by Protective Services for the Agency. COS stated she felt it was wrong to lie when
potential employers inquired about Complainant’s conduct with coworkers. We find the Agency
articulated legitimate, nondiscriminatory reasons for responding to inquiries from potential
employers regarding Complainant’s behavior and the Congressional office’s inquiry.

Upon review, we find that Complainant has not demonstrated the Agency's explanation to be
false or pretext for discriminatory animus. We also note the Agency responded to the
Congressional office based on a request submitted by Complainant for an investigation into his
treatment while employed with the Agency. Therefore, we conclude that Complainant has not
established that the actions taken by the Agency in claims (7) and (8) constituted unlawful
discrimination based on his religion.

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.
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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.

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.
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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

November 6, 2018
Date