Victor S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 13, 20190120170343 (E.E.O.C. Feb. 13, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170343 Agency No. 2003-0666-2016100493 DECISION On September 29, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2016 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Vocational Rehabilitation Specialist at the Agency’s Mental Health Residential Rehabilitation Treatment Program, Veterans Affairs Medical Center in Sheridan, Wyoming (VAMC Sheridan). On January 14, 2016, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment and a hostile work environment based on sex (male), disability, and in reprisal for prior EEO activity when: 1. on October 5, 2015, the Chief of Mental Health (Chief) required him to take 15 minutes of annual leave after he returned five minutes late from an appointment; 2. on October 29, 2015, the Chief denied him sick leave; 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. 0120170343 2 3. on December 10,2 015, the Assistant Chief of Medical Health and the Chief rated him Fully Successful on his FY15 performance appraisal; 4. on December 21, 2015, he learned that the Chief changed his position of Vocational Rehabilitation Specialist, position description #040934 to Vocational Rehabilitation Specialist, position description #102670; and 5. on June 15, 2016, a female coworker ignored and would not speak to him after she had a discussion with the Chief about “explicit conversations” by female staff members, which had occurred in his office.2 After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on September 14, 2016, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant, on appeal, argues that the investigator erred in framing his claims and that the Agency’s decision “was not a fair decision and I have been dealing with this process for over a year and [Chief] continues to make my work environment a hostile one.” ANALYSIS AND FINDINGS As an initial matter, we find that Complainant’s assertions that the investigator erred in the framing of his claims is not substantiated by our review of his formal complaint and related EEO counseling report. Therefore, we will proceed to address the merits of Complainant’s complaint based on the evidence gathered during the investigation. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2 The record reflects that claim 5 was later amended to the instant formal complaint. 0120170343 3 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In support of his disability claim, Complainant stated that he is a service-connected veteran with a heart condition characterized by episodes of atrial fibrillation as frequently as twelve times per day. Complainant also indicated that the frequent episodes require him to take medication. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. Here, we find that responsible management witnesses articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted on that October 5, 2015, the Chief required him to take 15 minutes of annual leave after he returned five minutes late from an appointment. The Chief (male, no disability/prior protected activity) stated that during the relevant period he was Complainant’s supervisor. The Chief stated that management never required Complainant to take 15 minutes of leave on October 5, 2015. There is no independent documentary evidence of record to support Complainant’s claim. Regarding claim 2, Complainant alleged that on October 29, 2015, the Chief denied him sick leave. The Chief stated at that time he was aware of Complainant’s cardiac condition. The Chief explained that on October 29, 2015, he received an emergency email from Complainant and “since it registered as an immediate emergency situation, so much that I responded to him immediately an email text and then left my office immediately after that to go up to his office because I was worried about his well-being.” The Chief stated that he instructed Complainant to go to the clinic “to make sure that if this is as [serious] as he has indicated, I’d rather have him be here at the medical center to receive treatment right away rather than endanger himself or someone else on his way home.” Further, the Chief stated that Complainant was not denied sick leave “for that time. He was at work. He had … an issue. I asked him to present to Employee Health before he went home.” 0120170343 4 Regarding claim 3, Complainant alleged that on December 10, 2015, the Assistant Chief of Medical Health and the Chief rated him Fully Successful on his FY15 performance appraisal. The record reflects that Complainant’s performance plan lists four elements as follows: Direct Patient Contact, Individual Performance, Privacy and Confidentiality, and Customer Service. The record further reflects that while Complainant received an exceptional rating for his achievement in Direct Patient Contact and Individual Performance, he received fully successful in Privacy and Confidentiality, and Customer Service. The Chief began supervising Complainant in November 2014, and had not previously rated his performance. The Chief stated that during the relevant period, he discussed with other supervisors and managers involved in Complainant’s tasks and relied on their feedback to rate Complainant. The Chief explained that Complainant was documented “as exceptional in two of the four categories of his rating achievements. The other two he was rated fully successful. And because he wasn’t rated exceptional in all four categories was the reason why he wasn’t allowed to be rated any higher.” The former Assistant Chief of Medical Health stated at that time she was asked by Human Resources (HR) to prepare the employees’ appraisal because the Chief was on leave.3 Specifically, the former Assistant Chief stated that HR “wanted me to deliver all of his appraisals prior to the end of the time period, the certified time period.” The former Assistant Chief stated that while she did not write any of the elements, she was given the appraisal from HR that had been completed by the Chief. Further, the former Assistant Chief stated that when she provided Complainant his appraisal, he asked her how he would go about appealing the decision, and I instructed him to go to [HR representative] in HR to start that process.” Regarding claim 4, Complainant claimed that on December 21, 2015, he learned that the Chief changed his position of Vocational Rehabilitation Specialist, position description #040934 to Vocational Rehabilitation Specialist, position description #102670. The Chief stated that he had no input into the change of Complainant’s Position Description numbers, and that the Position Description was dated two months prior to his assuming the position of Chief of Mental Health which was confirmed by Human Resources “on those numbers that he had listed previously. So there was no change by me, and he actually had that PD before I did.” Regarding claim 5, Complainant asserted that on June 15, 2016, a female coworker ignored and would not speak to him after she had a discussion with the Chief about “explicit conversations” that had occurred in his office by female staff members. 3 The record reflects that in May 2016, the former Assistant Chief left the Mental Health Residential Rehabilitation Treatment Program for a different program within VAMC Sheridan. 0120170343 5 The Chief acknowledged that a named female coworker (Coworker) in Complainant’s unit informed him of Complainant’s discomfort with the inappropriate conversations concerning Brazilian wax. The Chief stated that while he does not have inappropriate conversations with female employees, he spoke to Coworker about the Brazilian wax issue and provided corrective feedback about appropriate conversations in the workplace. For instance, the Chief explained that as a result of his conversation with the female coworker “having that information at hand, I went directly to the female that initiated the conversation and spoke to her only and provided corrective feedback about appropriate conversations in the workplace. And at no time did I ever indicate to her or to any other female staff that they should not have contact with [Complainant].” After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s explanations for the disputed actions were a pretext for discrimination or motivated by discriminatory or retaliatory animus. Hostile Work Environment With regard to Complainant’s hostile work environment claim, to establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 bases – in this case, his sex, disability or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant simply has provided no evidence to support his claim that his treatment was the result of his sex, disability or prior EEO activity. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 0120170343 6 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. 0120170343 7 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 February 13, 2019 Date Copy with citationCopy as parenthetical citation