Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-2733-0500 (E.E.O.C. Sep. 10, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132733
Hearing No. 443-2013-00065X
Agency No. 200J-0618-2012101264

DECISION
On July 10, 2013, Complainant filed an appeal from the Agency’s June 17, 2013 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 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 for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
The Agency hired Complainant as a Probationary Medical Service Assistant (MSA) at its
Veterans’ Hospital in Minneapolis, Minnesota in August 2011. He resigned from the Agency
on April 30, 2012, prior to completing his probationary term of one year. He subsequently
filed an EEO complaint in which he alleged that the MSA Supervisor - his immediate
supervisor (S1), through her failure to take corrective action, allowed him to be subjected to a
hostile work environment because of his age (60), disability (Post-Traumatic Stress Disorder),
and expressed opposition to what he believed was an unlawful act of age discrimination on the
part of his Training Instructor (TI). He identified eight incidents that occurred between
September 2011 and January 2012, as evidence of discriminatory harassment and named
several Senior MSAs (SMSAs) in the various clinics as being responsible along with S1.1

Complainant initially alleged that during the latter part of his training in September 2011, the
TI segregated the class by age, and that as a result of the TI’s action, the training he received

1These SMSAs were responsible for conducting on-the-job training for new employees.
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was inadequate and left him unprepared to work in the various clinics throughout the
organization. He averred that the TI commented that younger people’s minds were like
sponges and that there were too many people in the class who did not know what they were
doing. IR 185-86. The TI responded that she arranged the seating in the class who were in the
same area of training and, in her words, “didn’t even see that [there was] an age difference.
She acknowledged that the younger students were moving at a faster pace, and that she did not
want to hold them back because “others were not getting it” quite as fast. IR 238.
Complainant himself admitted that he could not assess the TI’s intention. IR 184.

S1 testified that Complainant wrote her a letter in which he characterized the TI’s actions as
“ageism.” S1 showed the letter to the EEO Officer and discussed the matter with him as well
as with the TI’s supervisor and the TI herself. The TI acknowledged her poor choice of words
and apologized to Complainant, who thereafter considered the matter closed. IR 220-21, 278,
380-83, 394.2

Complainant next alleged that on September 5, 2011, an SMSA in the Primary Care Clinic
(SMSA-PC) made him sign off the computer, stop taking telephone calls, and stuff mailing
envelopes for two days. IR 188. S1 and the SMSA-PC testified that Complainant had been
asked to perform clerical duties related to clinic operations. IR 221, 251-52.

Third, Complainant alleged that on an unspecified date in September 2011, an SMSA in the
Orthopedics Clinic (SMSA-O) kicked him off the unit for asking too many questions,
particularly about procedural matters such as starting the computer, daily preparation,
workflow and timelines. IR 190. S1 testified that the workload in the Orthopedic Clinic was
very helpful and the SMSA-O was in the clinic by herself and not able to give Complainant the
assistance he needed. Consequently, the supervisor of the Orthopedic Clinic had him moved to
the Dental Clinic, where she thought that it would be a much better fit. IR 221-22, 267.

Fourth, Complainant alleged that on September 12, 2011, the SMSA-PC denied his request to
be moved out of the Women’s Clinic. He averred that he had not been sufficiently prepared
for the complicated problems that he was encountering, and that he was not getting the help
that he needed. IR 192, 395. Both S1 and the SMSA-PC testified that Complainant needed to
gain experience in the Women’s Clinic as well as the other clinics in order to reach the full
performance level of the MSA position. IR 222-23, 252-53, 328-29.

Fifth, Complainant alleged that on October 21, 2011, an SMSA in the Call Center (SMSA-CC)
yelled at him and that S1 had done nothing about it despite his request for intervention. IR
195-96, 334-38, 397. The SMSA-CC denied yelling at Complainant and characterized her
action as merely correcting his performance, as she was obligated to do as part of her
responsibility to train Complainant. IR 265. She also pointed out her frustration about
Complainant wanting to “chit-chat” all the time. IR 266. S1 testified that she investigated the

2This was the only incident in which Complainant alleged age as a basis of discrimination. IR
189, 191, 195, 198, 202, 204, 207.
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incident and found that Complainant was unwilling to listen to the SMSA-CC when she tried to
explain things to him. IR 224.

Sixth, Complainant alleged that on that same day, the SMSA-CC demanded in a loud voice
that Complainant fill out a nurse consultation request. Complainant averred that he was talking
on the telephone with a veteran when the SMSA-CC yelled at him again. IR 198. Again, the
SMSA-CC denied that she raised her voice to Complainant. She noted that Complainant had
been taking a symptom-based call, which had to be referred to a registered nurse. IR 266. S1
testified that she cautioned the SMSA-CC regarding her tone and manner of interacting with
Complainant, and noted the SMSA-CC’s frustration over her difficulties in training
Complainant. IR 225.

Seventh, Complainant alleged that on December 12, 2011, S1 threatened to fire him if his
performance did not improve, and that she forced him to repeat his initial training. IR 198-
201. S1 responded that she was merely pointing out that Complainant had been making too
many errors and that he was not meeting the 12.5 calls-per-hour standard that MSAs were
expected to meet. She further testified that she worked with Complainant over the course of
several days, reviewing each of the training modules and working closely with him while he
went through the various procedures. S1 emphasized that the extra training had been
successful in that the number of Complainant’s errors had been declining while his calls per
hour had been increasing. IR 225-26, 341, 344-45, 351-59, 362.

Finally, Complainant alleged that on January 4, 2012, S1 asked him if he was suicidal. IR
202-03. S1 averred that one of Complainant’s co-workers had come to her and informed her
that she had heard from another employee that Complainant had been making statements to the
effect that he wanted to kill himself, and that she no longer wanted to work near him. The
union eventually got involved in the matter and S1 had received word from her superiors that
she needed to deal with this situation as soon as possible. She discussed the matter with
Complainant, who denied that he ever harbored suicidal thoughts. She also sent an email to
her staff advising them not to spread rumors around the office. IR 226-27, 363-65.

Complainant also claimed that his resignation was forced, and therefore constituted a
constructive discharge. He identified five additional incidents that presumably occurred
between January and April 2012, that he contends had compelled him to submit his resignation
to S1. First, he alleged that S1 was “flippant” with him when he supported her in a dispute
with a union representative. Second, the Agency informed him that he had incurred a debt in
the amount of $1,500.00. Third, the Director of the facility failed to respond to his letter
inquiring whether he could receive unemployment benefits if he quit. Fourth, S1 criticized his
handling of a telephone call from a police officer. Fifth, he suffered a dizzy spell and drove
himself to the hospital. IR 205-07. S1 testified that by April 2012, he was making good
progress and had excellent telephone skills, that she had no intention or reason to terminate
him, and that she was disappointed when she received his letter of resignation. IR 227-28,
366-68.

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At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant initially
requested a hearing, but subsequently withdrew his request. Accordingly, the AJ assigned to
the case entered a dismissal order on March 20, 2013. The Agency thereupon issued a final
decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
To prevail on his claim of discriminatory harassment, Complainant would have to prove by a
preponderance of the evidence, that because of his age, disability, or opposition to
discriminatory employment practices, he was subjected to conduct so severe or pervasive that a
reasonable person in Complainant’s position would have considered it hostile or abusive. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service

,
EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if Complainant satisfies his burden of
proof with respect to both of those elements, motive and hostility, will the question of Agency
liability present itself. Put another way, Complainant’s failure to establish the existence of one
element in a discriminatory harassment claim precludes the need for inquiry into the existence
of the other.
Generally, incidents concerning routine work assignments, instructions, and admonishments
are neither severe nor pervasive and therefore do not rise to the level of harassment. See Bass
v. United States Postal Service

, EEOC Appeal No. 0120082167 (July 30, 2010). The
incidents Complainant cites as evidence of harassment involved training, assignments that
related to the operations of the various clinics through which Complainant rotated, attempts by
the SMSAs to provide Complainant with on-the-job training as an MSA, and a routine mid-
year assessment of Complainant’s performance during his probationary year. The incident
concerning S1’s inquiry into whether Complainant had expressed thoughts of suicide is a
workplace safety issue. All eight incidents identified by Complainant clearly fall within the
category of work-related actions. Complainant has therefore failed to establish the element of
hostility and the harassment inquiry ends. We now address his constructive discharge claim.
The central question in a constructive discharge analysis is whether the employer, through its
unlawful discriminatory behavior, made the employee’s working conditions so difficult that
any reasonable person in the employee’s position would feel compelled to resign. Complainant
v. Equal Employment Opportunity Commission, EEOC Appeal No.0120100768 (April 21,
2015). The Commission has found, for instance, that an employee’s resignation that resulted
from open and repeated use of racial epithets in front of multiple witnesses constituted a
constructive discharge. See Complainant v. Department of the Air Force

, EEOC Appeal No.
0120123322 (September 10, 2014).
As with Complainant’s harassment claim, none of the first four incidents he contends led to his
resignation involved anything other than work-related matters. With respect to the last
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incident, Complainant has not presented any documents or sworn statements from other
witnesses beyond his own affidavit linking his dizzy spell to the behavior of S1, the TI, or any
of the SMSAs toward him. Moreover, at the time he had submitted his resignation to S1 in
April 2012, he had corrected the performance deficiencies that S1 had identified in December
2011, and was well on the way to successful performance as an MSA. Complainant has not
shown that S1 had a motivation or desire to terminate him. Under these circumstances, we
simply cannot find that a reasonable person in Complainant’s position would have found the
working conditions so intolerable as to feel forced to resign. Complainant has therefore not
established that his resignation constituted a constructive discharge.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.

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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. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2015
Date