0120130465
09-12-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130465
Agency No. 200I03192010105008
DECISION
On February 17, 2012, Complainant filed an appeal from the Agency's January 3, 2012, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established by the preponderance of the evidence that he was discriminated against and harassed as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist with the Agency's Regional Office (RO) in Columbia, South Carolina. On November 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Polish), disability (mental), and in reprisal for prior protected EEO activity when:
1. on January 12, 2011, Human Resources Specialist and EEO Manager (HRS1), informed Complainant that the Agency would not be processing his CA-1 regarding his fall on the icy sidewalk that occurred off site.
Complainant also alleged that he was subjected to a harassment based on his national origin (Polish), disability (mental), and in reprisal for prior protected EEO activity with regard to claim 1 and when:
2. On August 17, 2010, Complainant's supervisor (S1) asked Complainant to explain the nature of his relationship with a RO employee (RO1), who assisted him with his claim forms;
3. On August 24, 2010, the RO Director, instructed S1 to have Complainant remove all the personal items he had on a shelf in his office;
4. On September 23, 2010, the RO Director instructed S1 to find out the reason why Complainant was returning from lunch ten minutes late; and
5. On September 24, 2010 and on October 12, 2010, S1 informed Complainant that he was wearing jeans too frequently and that his attire was inappropriate for work.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Without finding that Complainant established a prima facie case of discrimination, the Agency determined that with regard to claim 1, the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, HRS1 provided testimony that she received a phone call from another OIT employee informing that Complainant had fallen. She provided the information to the employee as to where to find the CA-1 form to download from a website. She was later informed that the injury occurred outside the building. According to HRS1, the policy was if the injury occurred outside, the CA-1 would be sent to and processed by GSA. As such, the claim was submitted to GSA. However, GSA erroneously informed her that it would not be processing the claim form. Because she knew Complainant needed financial assistance for medical bills, HRS1 advised S1 that she would submit the claim as a "third-party" injury to Workman's Compensation. Unfortunately, S1 submitted the form using the wrong injury date and noted that the injury had not been incurred in the performance of Complainant's duties. The claim was eventually accepted and Complainant was never told that it would not be processed. She explained that it was an unusual case that fell outside the guidelines, but that she actually went above and beyond her normal duties to get his claim filed.
The Agency found that Complainant failed to offer any evidence that the HRS1's reasons were not worthy of credence or established that she was motivated by discriminatory animus.
With regard to Complainant's harassment allegation, the Agency found that even assuming the incidents occurred as alleged, management official offered nondiscriminatory reasons for its actions.
Specifically, with regard to claim 2, the Agency found that S1 questioned Complainant about the nature of his relationship with RO1 at the Veterans Service Center at the VA Regional Office in Columbia, South Carolina due to an inquiry by another office regarding RO1's "aggressive" inquiries about the processing of Complainant's application for VA disability benefits. Both denied there was anything more than a professional relationship, but the RO Director testified that he did not want an appearance of impropriety in the processing of any applications.
With regard to claim 3, the RO Director testified that all employees were expected to keep their workplace clutter free and that notices informing them of such were sent out on a regular basis. When he walked through Complainant's work area, he noticed that he had numerous toy motorcycles displayed. The RO Director asked S1 to remind the employees to keep their workspace clutter free. The RO Director stated that Complainant was not singled out. S1 testified that he asked Complainant to remove some of the motorcycle models, as the number he had displayed went "overboard." S1 maintained that he had asked other employees to remove items from their desk in order to comply with the policy of the office.
With regard to claim 4, on September 23, 2010, the RO Director saw Complainant parking his car and walking into the office after 2:00 p.m. He informed S1 that he had seen Complainant coming in after 2:00 p.m. The policy of the office is that lunch breaks be taken between 11:00 a.m. and 2:00 p.m. When S1 asked Complainant why he was returning from lunch late, Complainant explained that he had been working on an issue that needed to be resolved immediately and that he had left late for lunch. S1 found the explanation reasonable, and the subject was dropped.
With regard to claim 5, the Agency found that even though the office allowed OIT employees to wear jeans to work, the overall appearance of an employee must be professional. The RO Director testified that Complainant was observed wearing soiled or sloppy jeans, sometimes with his shirttail hanging out. S1 testified that all employees are reminded of the policy as necessary, so Complainant was not singled out. S1 maintained he was merely reminding Complainant of the dress code.
The Agency found that Complainant failed to rebut any of the reasons offered and as such, failed to show that the incidents were based on his protected classes. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Neither party submitted statements on appeal.
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. (November 9, 1999) (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").
With regard to claim 1, we note that 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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, HRS1 provided testimony that she processed Complainant's CA-1 form according to the Agency's policy. Due to errors by the GSA and S1, Complainant's CA-1 form was delayed in processing.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant has failed to do so. Nothing in the record shows that HRS1 was motivated by discriminatory animus or that her testimony lacked credence. Further, we note that Complainant failed to proffer any evidence to show that S1 was motivated by discriminatory reasons when he made mistakes noted above. As such, we find that Complainant failed to establish that he was discriminated against as alleged.
Turning to Complainant's claim of harassment, we note that in order to establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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).
We find that even assuming the incidents occurred as alleged, nothing in the record demonstrates that the incidents were sufficient severe or pervasive to render Complainant's work environment hostile. On the contrary, we find these matters to be common workplace occurrences. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass Complainant on the basis of any of his protected classes, such common workplace occurrences are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. Furthermore, Complainant has failed to show that the Agency's actions were based on animus towards his protected classes. As such, we find that Complainant failed to establish that he was harassed as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD finding no discrimination or harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/12/14______________
Date
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0120130465
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130465