Rene M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120171576 (E.E.O.C. Dec. 19, 2018)

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

Rene M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120171576

Agency No. 200H-0646-2016102955

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 6, 2017, finding no discrimination
regarding 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Medical Supply
Technician, GS-7, with the Logistics Service in the Agency’s Pittsburgh Health System.

On March 31, 2016, Complainant contacted an EEO Counselor regarding his complaint. Unable
to resolve the matter informally, Complainant filed his complaint on May 13, 2016. The Agency
framed Complainant’s complaint as whether he was discriminated against based on disability
(patellofemoral pain syndrome, depression, and anxiety) and in reprisal for prior EEO activity
when he was subjected to a hostile work environment in that:

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 October 24, 2014, his second level supervisor (S2) denied his request to work a
compressed work schedule (CWS).

(2) On April 10, 2015, S2 denied his request to work a CWS.

(3) On June 24, 2015, S2 denied his request to work a CWS.

(4) On September 6, 2015, S2 denied his request to work a CWS.

(5) On November 3, 2015, S2 came into his office, stood directly over him and screamed,
yelled, and wagged his finger at him insinuating that he had started a rumor about
subcontracting out the service.

(6) As of April 6, 2016, after three pay periods, S2 failed to process his performance award
that was awarded after his performance rating was overturned on March 4, 2016, by the
Acting Associate Director.

On August 12, 2016, the Agency dismissed claims (1) through (4) due to untimely EEO
Counselor contact. The Agency stated that the alleged incidents occurred on or prior to
September 6, 2015, and Complainant did not contact an EEO Counselor until March 31, 2016.
The Agency accepted claim (6) for investigation as an independent claim and the overall
harassment claim consisting of events (1) through (6). After completion of the investigation of
the accepted claims, Complainant requested a final Agency decision without a hearing before an
EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding
that Complainant was not subjected to discrimination or harassment as alleged. Complainant
appealed the Agency’s decision.2

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 (EEO MD-110), Chap. 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

2 Complainant filed his timely appeal brief including his supporting documents on April 14,
2017, which will be considered for this decision. We note that Complainant’s additional briefs
filed on August 14, 2017, and September 7, 2017, will not be considered for the decision herein
since they were filed beyond the requisite time limit. There is no evidence Complainant
requested and was granted any extension to file his additional briefs beyond the requisite time
limit. 29 C.F.R. § 1614.403.

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parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

Initially, we find that the Agency properly dismissed claims (1) – (4) due to untimely EEO
Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged
discriminatory event, or the effective date of an alleged discriminatory personnel action. The
record indicates that the alleged incidents occurred in or prior to 2015, but Complainant did not
contact an EEO Counselor until March 31, 2016, which was beyond the 45-day time limit set by
the regulations. On appeal, Complainant does not dispute the untimeliness of the subject claims;
nor does he present adequate justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Thus, we find that the Agency properly dismissed claims (1) –
(4) pursuant to 29 C.F.R. § 1614.107(a)(2).

Regarding claim (6), after a review of the record, assuming arguendo that Complainant had
established a prima facie case of discrimination, we find that the Agency has articulated
legitimate, nondiscriminatory reasons for the alleged incident. The Agency indicated that
Complainant filed a grievance concerning his performance rating for FY 2015. On March 4,
2016, at the step 3 grievance, his rating was changed to Outstanding. Complainant’s first level
supervisor (S1) and S2 indicated that they were not notified of the grievance decision until
March 24, 2016, at which time both S1 and S2 got together and submitted the paperwork for
Complainant’s cash award for his Outstanding rating. S2 indicated that the delay was not
intentional and this was his first time he dealt with a performance rating being overturned by a
grievance. The Agency indicated that Complainant received his performance cash award two
pay period later. Complainant acknowledged this.

The only remaining incident of harassment is claim (5). We find that claim (5), a one time
incident, is insufficient by itself to constitute a hostile work environment. Furthermore, we find
no indication that claim (5) was motivated by discrimination.

CONCLUSION

Accordingly, the Agency’s final decision 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:
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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. 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.

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

December 19, 2018
Date