Roland T.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0120162560 (E.E.O.C. Aug. 9, 2018)

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

Roland T.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162560

Agency No. 2003-0785-2015105424

DECISION

On August 4, 2016, 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
July 7, 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. 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 Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief,
Canteen, GS-11, at the Agency’s Veterans Canteen Service in Dallas, Texas. On November 25,
2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on
the bases of race (African-American), age (40), and reprisal for prior protected EEO activity when:

1. beginning August 3, 2015, he was not provided retail training;

2. on September 9, 2015, he was reassigned from the Dallas Veterans Canteen Service
(VCS) to the Fort Worth VCS;

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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3. as of September 2015, his request to receive a grade increase had not been
approved;

4. effective November 6, 2015, he was removed from his employment as VCS
Canteen Assistant Chief, GS-11; and

5. he was subjected to harassment resulting in a hostile work environment as
evidenced by ten incidents occurring July 2015 through November 6, 2015.2

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 EEOC 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”).

Disparate Treatment Discrimination (Claims 1 – 4)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

2 The original complaint set forth two additional claims relating to denial of training prior to August
3, 2015. The Agency dismissed those claims for untimely EEO counselor contact, although it
considered evidence relating to these claims in determining whether a pattern of harassment had
been proven. On appeal, Complainant offers no argument that those claims were dismissed in
error.
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133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

Claim 1 – Retail Training Denied

The Agency explains that Complainant did not attend the training in question because at the time
Complainant’s attendance was approved, Complainant had been scheduled to take annual leave.
ROI 124-125. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant does not dispute that the training was approved or that he declined to attend because
of his previously scheduled annual leave.

Claim 2 – Reassignment

Complainant was reassigned, according to the Agency, because he, and other Dallas VCS
management staff, were not meeting VCS standards in their specific areas of responsibility. It was
decided that operating at the VCS Fort Worth operation, a smaller operation, would allow
Complainant “to improve his skill set and enhance his performance meeting VCS standards . . .”
ROI at 169-170. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has not shown it to be a pretext designed to conceal discriminatory animus.

Claim 3 – Grade Increase Denied

According to the Agency, Complainant was not granted a grade increase because VC-11, the grade
he occupied, was the highest grade authorized for his position, Assistant Canteen Chief in Dallas.
ROI at 164. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant
states that other Assistant Chiefs received promotions above the VC-11 level but provides no
corroborating evidence to substantiate his claim.

Claim 4 – Removed from Employment

According to the Agency, Complainant was removed from his position because: 1) he permitted
employees to work overtime without authorization; 2) he was involved in a confrontation with his
supervisor during which he directed verbal threats and profanity-laced insults at her; and 3) he left
cash in insecure locations and permitted the sale of unapproved merchandise. ROI at 262, 267,
284. These are legitimate, nondiscriminatory reasons for the Agency’s action. Complainant denies
these charges, in part, but his denials are insufficiently supported by record evidence to establish
that the Agency’s reasons for removing him were pretextual.

Hostile Workplace Harassment (Claim 5)

In addition to the discrete acts alleged in the complaint as set forth above, the complaint contained
additional allegations of Agency actions which, Complainant contends, are part of a pattern of
harassment.
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These included the following: a) a supervisor accused Complainant of dating a subordinate and
informed him that management was disappointed with his progress and did not view him as a
future Chief with VCS; b) a supervisor treated Complainant in a disrespectful manner when she
yelled and pointed her finger at him; c) a supervisor denied Complainant’s request to remove
and/or copy his personnel file and snatched the file out of his hands; and d) Complainant was
scheduled for training while he was on annual leave.

It is well-settled that harassment based on an individual’s statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his
membership in those classes or his prior EEO activity; (3) the harassment complained of was based
on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance 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).

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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Complainant must also prove that the conduct was taken because of a protected basis - in
this case because of his race, age or prior protected activity. Only if Complainant establishes both
of those elements -- hostility and motive -- will the question of Agency liability present itself.

In this case, there is insufficient evidence to establish that the alleged harassment was based on
Complainant’s protected classes. There is no evidence that any of the claimed harassing actions
undertaken by Agency management were based on his race, age, or prior protected activity. There
is no evidence, for example, of a racist slur or age-based ridicule that would support an inference
of discriminatory animus.

Complainant testified that one of his supervisors told him that she “had a Black manager who
works for her now, that she . . . tries to treat people fairly.” ROI at 131. Complainant suggests
that this supervisor’s mention of race is probative of racial animus. Complainant’s argument is
unpersuasive. The supervisor’s statement in itself did not evidence racial hostility nor was it
linked, in Complainant’s telling, to the perpetration of any of the allegedly harassing actions.
Standing alone, the supervisor’s statement does not support an inference of racial motivation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding that Complainant did
not establish that he was discriminated against as alleged.

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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

August 9, 2018
Date