Damion L,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 26, 2017

0720170015 (E.E.O.C. May. 26, 2017)

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

Damion L,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0720170015

Hearing No. 540-2013-00188X

Agency No. 200P-0678-2012104134

DECISION

Concurrent with its November 18, 2016, final order, the Agency filed an appeal pursuant to 29
C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of
provisions of an Equal Employment Opportunity Commission Administrative Judge’s (AJ) order
of remedies pursuant to a finding of 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Worker at the Agency’s facility in Tucson, Arizona. On October 16, 2012, Complainant filed an
EEO complaint alleging that the Agency subjected him to unlawful harassment on the basis of
his religion (Jewish) when: (1) in 2008, a coworker (CW1) made numerous derogatory religious
comments to Complainant and once sprinkled “holy” water on him, telling Complainant “now
you are one of us”; (2) in January 2009, CW1 continued to ignore Complainant’s direct requests
to stop making religious-based attacks against him; (3) between January 2009 and July 2010,
CW1 would call Complainant “the devil” and would refer to him as “Satan’s serpent” during
shop meetings; (4) since 2011, another coworker continually ignored, or sent back with rude

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.
0720170015

2
remarks, work orders submitted by Complainant; (5) from May 2012 to October 2012, the supply
officer refused to fill orders for materials Complainant needed in order to perform his work; (6)
on July 1, 2012, Complainant was not paid overtime; (7) on July 12, 2012, Complainant’s
supervisor (S1) told Complainant that he did not want to hear any more complaints and that
Complainant had no prospects for promotion; (8) on July 29, 2012, CW1 proselytized to
Complainant; (9) on August 5, 2012, Complainant was not paid overtime; (10) on September 28,
2012, Complainant was not paid overtime; (11) on November 5, 2012, S1 denied Complainant’s
request for leave to vote; and (12) on December 17, 2012, over Complainant’s objections, CW1
gave Complainant a Christmas card saying “This is for your family…they need to be saved.”

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the
AJ held a hearing on December 15, 2015, and issued a decision on August 25, 2016. The AJ’s
decision concluded that Complainant established that he was subjected to a hostile work
environment on the basis of his religion with respect to claims (1), (2), (3), (8), and (12). The AJ
further found that the evidence established that the Agency was liable for the harassment.

By way of relief, the AJ ordered the Agency to: (1) pay Complainant $25,000.00 in
nonpecuniary, compensatory damages; (2) pay Complainant $29,545.00 in attorney’s fees and
$189.96 in costs; and (3) post a notice of the finding of discrimination. In addition, the AJ
ordered that: (4) the Agency is “enjoined from…subjecting any employee to a hostile work
environment based on religion, either by doing so directly or by failing to promptly address and
correct any such harassment by one or more coworkers of the employee”; and (5) the Agency
“shall issue a Memorandum informing all managers and supervisors working for the Agency in
Facilities Management at the Southern Arizona VA Health Care System, or in the department
encompassing the duties of the Facilities Management if that department no longer exists, that
they can be subject to discipline, including but not limited to suspension, demotion, or
termination, for subjecting an employee to a hostile work environment based on religion by
failing to take immediate and appropriate corrective action to stop any such harassment by one of
more co-workers of an employee”.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant proved
that the Agency subjected him to a hostile work environment. The Agency also adopted the AJ’s
ordered remedies (1) – (3) and added remedies of EEO training and consideration of discipline
for responsible employees. On appeal, the Agency rejects remedies (4) and (5), arguing that, with
respect to (4), the AJ ordered injunctive relief even though the proscribed behavior is already
prohibited by law. The Agency also argues that, with respect to (5), the AJ’s remedy is improper
and overly broad because it is not directed toward the specific, offending parties and the AJ
found no evidence of a culture of discrimination in the Division.

0720170015

3
ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

Initially, we find the AJ’s decision and Agency final order finding discrimination is supported
by substantial evidence in the record and the remedies identified as 1 – 3 earlier in this decision
are appropriate. This finding of discrimination and those remedies identified as 1 – 3 earlier in
this decision are not challenged by the Agency. Complainant has not filed an appeal from the
findings of no discrimination or from the remedies so we shall not address those claims or any
remedies apart from remedies 4 and 5 (as identified earlier in this decision).

Next, pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the
Commission may order the Agency to provide full relief, to include corrective, curative or
preventive actions to ensure that violations of the law similar to those found will not recur. Here,
we concur with the Agency that the AJ’s order enjoining the Agency from engaging in
harassment is unnecessary as this is activity already prohibited under the law. Likewise, we
further find the AJ's order to issue a Memorandum to all Managers and Supervisors regarding the
potential for discipline due to acts of discrimination unnecessary. There is no evidence in this
case of a facility-wide culture of discrimination, which could potentially benefit from such a
posting. See Complainant v. Department of Veterans Affairs, Appeal No. 0720090041 (May 5,
2010) (finding overly broad an order that the Agency make a facility wide promise of future
discipline when there was no showing of facility-wide discrimination), request for
reconsideration denied, EEOC Request No. 0520100362 (July 20, 2010).

CONCLUSION

Accordingly, after a review of the record, we AFFIRM the Agency’s final order finding
discrimination and MODIFY the AJ's award of relief. The Agency shall comply with the
ORDER herein.

ORDER

To the extent it has not already done so, the Agency shall take the following remedial actions:

1. Within 30 days of the date this decision is issued, pay Complainant
$25,000.00 in nonpecuniary, compensatory damages.
2. Within 30 days of the date this decision is issued, pay Complainant
$29,545.00 in attorney’s fees and $189.96 in costs.
0720170015

4
3. Within 180 days of the date this decision is issued, the Agency shall provide a
minimum of six hours of training to all employees in the Engineering
Department and Maintenance and Operations Service at the Tucson, Arizona
facility. The training shall focus on the laws prohibiting religious
discrimination and harassment in the workplace and management’s
obligations and responsibilities under Title VII.
4. Within 180 days of the date this decision is issued, the Agency shall consider
taking appropriate disciplinary action against the individuals responsible for
the harassment. The Agency shall report its decision to the Compliance
Officer referenced herein. If the Agency decides to take disciplinary action, it
shall identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled "Implementation of the Commission's Decision." The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1016)

The Agency is ordered to post at its Tucson, Arizona facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The Agency
shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the Compliance Officer at the
address cited in the paragraph entitled "Implementation of the Commission's Decision," within
10 calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The
Agency’s report must contain supporting documentation, and the Agency must send a copy of all
submissions to the Complainant. If the Agency does not comply with the Commission’s order,
the Complainant may petition the Commission for enforcement of the order. 29 C.F.R.
§ 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance
with the Commission’s order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the
Complainant has the right to file a civil action on the underlying complaint in accordance with
the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and
1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject
0720170015

5
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant
files a civil action, the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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
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
0720170015

6
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 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

May 26, 2017
Date