Elroy K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 30, 2019

0120180802 (E.E.O.C. Apr. 30, 2019)

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

Elroy K.,1
Complainant,

v.

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

Appeal No. 0120180802

Hearing No. 410-2017-00087X

Agency No. 200I05082014103229

DECISION

On January 2, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 30, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the
Agency’s Medical Center in Decatur, Georgia.

On July 18, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Black) and color (light-skinned) when he was subjected to a
hostile work environment. In support of his claim of harassment, Complainant alleged that the
following events occurred:

1. On March 22, 2014, the Sergeant Police Officer (Supervisor) (dark-skinned
Black) approved overtime for Complainant to work the 4pm to 10pm shift to

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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cover another employee. However, later that day, the Supervisor contacted
Complainant and indicated another employee was working the overtime.

2. On March 26, 2014, the Supervisor approached Complainant and stated in an
unprofessional tone, “You better get to work.” When Complainant responded,
“You lead the way,” the Supervisor replied, “You will go before I go,” which the
Complainant believed was a threat that the Supervisor would try to get him
terminated.

3. On March 28, 2014, Complainant wrote a report of contact stating he had been
subjected to a hostile working environment created by the Supervisor since
January 27, 2014, this harassment stated when Complainant disagreed with the
Supervisor’s assessment of one of his supervisors (Lieutenant) (White). On March
28, 2014, when Complainant arrived at the Armory to be issued his weapon and
as he began to enter the Armory, the Supervisor pointed at Complainant and
stated, “You wait right there.” The Supervisor was trying to embarrass
Complainant, causing him to feel humiliated and treated unfairly.

4. On April 12, 2014, the Supervisor ordered another officer to slam the door closed,
when the Supervisor saw Complainant about to enter the administrative office
area.

5. On May 15, 2014, when Complainant asked the Supervisor to arm him for his
tour of duty, the Supervisor began harassing Complainant by repeatedly stating he
could not see that the weapon was clear (did not contain ammunition).
Complainant stated that the Supervisor was trying to provoke him into
withdrawing the weapon from the safety barrel and pointing it at the Supervisor,
so he could charge Complainant with a weapon or safety violation.

6. On May 29, 2014, Complainant stated that the Supervisor, repeatedly harassed
him and created a hostile work environment, when the Supervisor “squared off”
against Complainant in a hallway as he tried to walk by, causing Complainant to
move to the side in order to avoid hitting the Supervisor to get around him.

7. On July 19, 2014, when Complainant asked another officer (Sergeant) to arm him
prior to starting his shift, the Supervisor ran into the area where Complainant was
standing, yelling to the Sergeant, “You will not arm [Complainant] only I will.”
Complainant stated he believed the Supervisor’s behavior was hostile and
combative.

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 timely requested a hearing.
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After both parties submitted motions for a decision without a hearing, the AJ assigned to the case
issued a decision by summary judgment in favor of the Agency on November 15, 2017.

The AJ concluded Complainant failed to establish that the alleged actions constituted unlawful
harassment in violation of Title VII. Specifically, the AJ determined noted that Complainant
failed to establish a link between the alleged acts of harassment and a discriminatory motive.
The AJ found that the seven acts of alleged harassment did not involve Complainant’s race
and/or color. Complainant argued that the Supervisor made a comment about his skin color.
However, the AJ determined that the single alleged comment alone was not sufficient to show
that all the events occurred because of his color. Furthermore, the AJ found that the alleged
events were not sufficient to create a hostile work environment. Accordingly, the AJ concluded
that Complainant did not show that he was subjected to actions which constituted a violation of
Title VII.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant appealed asserting that the AJ erred in issuing a decision without a hearing. He
noted that he stated in during the investigation that he was informed by a colleague (Colleague)
that the Supervisor commented that he would not “bow down to a light-skinned Black man from
New York.” Complainant stated that he had established that the actions committed by the
Supervisor constituted unlawful harassment. As such, Complainant asked that the Commission
reverse the Agency’s final decision and remand the matter back to the AJ for a hearing.

The Agency asked that the Commission affirm its final action implementing the AJ’s decision
without a hearing.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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.
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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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate.

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. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

It is well-settled that harassment based on an individual’s race and color is actionable. See
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment under those bases, the complainant must show that: (1) he belongs to the statutorily
protected classes; (2) he was subjected to unwelcome conduct related to his membership in those
classes; (3) the harassment complained of was based on race and/or color; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance 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). 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 Sys. Inc., EEOC Notice
No. 915.002 (March 8, 1994).

For purposes of analysis, we find that Complainant has established parts (1) and (2) of a prima
facia case of harassment. We turn to part (3) and determine whether Complainant has shown
that the harassment alleged was based on his race and/or color. Complainant only provides one
comment made by the Supervisor which he believed established that the alleged harassment
occurred because of his color.

Complainant asserted in his affidavit that he was told by the Colleague that, in March 2014, he
discussed the denial of overtime with the Supervisor. The Colleague allegedly informed
Complainant that the Supervisor said, “I'm not going to bow down to a light-skinned Black man
from New York.” Complainant stated that he did not hear the comment directly from the
Supervisor. Instead, Complainant asserted that the Colleague informed him of the exchange.
We note that the record shows that the Supervisor denied making the comment. Furthermore,
during the Agency’s internal investigation into Complainant’s claim of harassment, the
Colleague was asked about the alleged color-based statement.
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However, in a memo dated November 20, 2014, the internal investigator asked the Colleague if
race and/or color had anything to do with the denial of overtime. The Colleague stated that he
did not hear the Supervisor make a remark referencing Complainant's race or color.

When the matter was pending before the AJ, Complainant did not indicate that he would call the
Colleague as a witness. Further, Complainant has not made a showing that the Colleague would
support Complainant’s assertion that the comment about color was made by the Supervisor.
Finding no supporting evidence to Complainant’s plain assertion of one comment, we determine
that Complainant has not established that the alleged events occurred because of his race and/or
color. As such, we conclude that Complainant failed to show that he was subjected to a hostile
work environment based on his race and/or color.

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 final order implementing the AJ’s
decision.

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.
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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 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

April 30, 2019
Date