Collin R,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

0120181583 (E.E.O.C. Aug. 27, 2019)

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

Collin R,1
Complainant,

v.

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

Appeal No. 0120181583

Hearing No. 461-2017-00113X

Agency No. 200305022017100410

DECISION

On April 7, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 14, 2018 final order 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 finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid,
WG 3566, Grade U2, Step 1 at the Agency’s Environmental Service (ES) at the Alexandria VA
Medical Center in Pineville, Louisiana. On January 13, 2017, Complainant filed a complaint
alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On unspecified dates, the Housekeeping Supervisor (HS) sold lunches for a profit,
and Complainant purchased lunches even when he did not want to do so.

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. On October 13, 2016, Complainant was not selected for a Secretary position in
Specialty Care Service under Vacancy Announcement Number FG-16-LM-1795359-
BU.

4. On or about November 9, 2016, Complainant was not selected for GS-11,
Administrative Officer position in Mental Health, under Vacancy Announcement
Number AN-FG-17-1827591-LH.

5. On November 9, 2016, HS threatened to terminate Complainant if he did not remove
his safety glasses.

9. On December 23, 2016, HS conducted one-on-one sexual harassment training with
Complainant and "played with his crotch area" throughout the training.

10. On January 12, 2017, HS made threatening motions with his hands, and screamed at
Complainant.

12. On June 28, 2017, a supervisor played a "nonwork related DVD" with "graphic
images," which aggravated Complainant's medical condition.

13. On July 6, 2017, Chief of Police referred to Complainant by using a "racial slur ... Big
Money."2

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). On September 11,
2017, Complainant requested a hearing. On January 30, 2017, the Agency submitted a motion
for a decision without a hearing. Complainant did not submit a response opposing the Agency’s
motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency.

With respect to Claim 1, evidence indicated that none of the ES employees were being pressured
to purchase the lunches and that HS was not abusing authority or using intimidation in selling
lunches. Nonetheless, management educated HS on VA policy and he was counseled for the
incident. Because Complainant stated that neither sex nor reprisal were the bases for the lunch
issue, and management’s actions were reasonable, the AJ found no discrimination.

With respect to the nonselections at issue in Claims 3 and 4, the record indicated that
Complainant was deemed qualified by Human Resources and was referred for interview along
with five other applicants.

2 According to the record, per the Order on Status Conference, Deadlines, and Record of
November 29, 2017, Complainant withdrew Claims 2, 7, and 8 during the EEO investigation.
During the telephonic Status Conference, Complainant withdrew Claims 6 and 11.
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The Selecting Official, the Chief of Specialty Care, convened an interview panel. All applicants
were asked the same interview questions and received a score of 1-5 per panelist based on their
answers. A female applicant was selected for the position. Complainant and one other applicant
tied for 3rd place. Complainant was not referred to the Selecting Official for consideration
because of his interview score. The AJ found that Complainant had no prior EEO actions before
the instant complaint. He determined that Complainant has not established a prima facie case of
retaliation because Complainant had not engaged in EEO activity prior to the nonselections. The
AJ also found that regarding both nonselections, Complainant failed to establish that the
Agency's articulated reasons for Complainant’s nonselections were a pretext to mask
discrimination on the bases of his sex or in retaliation for his prior EEO activity. The AJ noted
that Complainant's qualifications were not so plainly superior to the candidate selected that a
reasonable person in the exercise of impartial judgment would have selected him.

Regarding Claim 5, Complainant alleged that he was asked by HS to remove "safety glasses"
while sitting in the ES check-in room before starting his shift. HS stated that he informed
Complainant that the glasses were only needed when he was cleaning the bathrooms. HS said
that Complainant removed the glasses but informed HS that he would put them back on when HS
was not around or when Complainant was in his building. HS said he informed Complainant that
he would be written up for failure to follow instructions. The AJ found that Complainant failed
to produce any evidence that the discussion with HS regarding Complainant wearing his safety
glasses was related to Complainant's sex or his protected EEO activity.

As for Claim 9, the AJ found no evidence to support Complainant’s contention that the incident
occurred. Additionally, the AJ found that, even if it had, the alleged incident was not severe or
pervasive enough to constitute harassment on the bases of sex or that it was done in retaliation
for Complainant's EEO activity.

Similarly, with respect to Claims 10 and 12, the AJ found no evidence to corroborate
Complainant’s allegation. Further, the AJ found that Complainant offered no evidence that
demonstrated the alleged incidents were based upon Complainant's protected status as male or in
retaliation for his prior EEO activity.

Finally, the AJ found that as to Claim 13, there was no evidence that the Police Chief referring to
Complainant as "Big Money" was motivated by discriminatory animus on the basis of his sex or
in retaliation for his EEO activity. The AJ also found that the statement was not severe or
pervasive enough to rise to the level of an abusive work environment and it was not reasonably
likely to deter protected EEO activity. The Agency adopted the AJ’s findings of no
discrimination.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Commission finds no reason to disturb the Agency’s finding of no discrimination.
The AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination occurred.

CONCLUSION

We AFFIRM the Agency's final order finding no discrimination.

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.
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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. The
court has the sole discretion to grant or deny these types of requests.
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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 27, 2019
Date