Horace H.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 18, 2017

0120150773 (E.E.O.C. Apr. 18, 2017)

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

Horace H.,1
Complainant,

v.

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

Appeal No. 0120150773

Hearing No. 510-2013-00381X

Agency No. 0705-200I-2013100912

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 2, 2014, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal
Employment Opportunity Assistant in the Agency’s Office of Resolution Management in St.
Petersburg, Florida. Complainant was frequently tardy, engaged in personal telephone calls
frequently during working hours, and spent a significant amount of time in non-work related
conversations. Complainant’s conduct resulted in delays in completing assignments and
negatively impacted his productivity. Management responded to his repeated tardiness by
changing his reporting time from 8:00 a.m. to 8:30 a.m. and subsequently to 9:00 a.m.
Complainant’s habit of tardiness continued despite the changes in reporting time. Management

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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issued Complainant a written counseling in June 2008 to address his tardiness, frequent
personal calls, non-work related conversations with visitors, and lack of productivity.

In 2010, Complainant’s second-level supervisor (S2) attempted to discuss concerns regarding
Complainant’s job performance and attendance. Complainant became angry, used profanity,
and acted in a disrespectful manner to S2. In June 2011, S2 approached Complainant
regarding his untimely processing of mail. Complainant again became angry and acted
disrespectfully. In June 2011, Complainant was issued a memorandum regarding his
performance and behavior expectations. Therein, Complainant was reminded that he was
expected to arrive at work on time; perform his share of the work; not abuse his government
telephone; and to treat his supervisor and co-workers with dignity and respect.

On November 13, 2012, Complainant was issued his 2012 performance appraisal.
Complainant was rated as “Fully Successful,” just as he had been rated each year dating back
to 2007. Management cited Complainant’s frequent tardiness, untimely completion of tasks,
and lack of productivity in not rating him higher.

On August 24, 2012, the Agency announced a vacancy for an Administrative Assistant Lead
under Vacancy Announcement No. ORM-DSP-12-V0726044. Complainant applied for the
position, but did not appear on the certificate as a qualified candidate. The Selecting Official
ultimately selected the Selectee.

On May 8, 2013, in an email to management Complainant requested reasonable
accommodation in the form of an ergonomic work station allowing him to sit and stand while
working at his computer. Complainant indicated that the equipment he requested was available
at Wal-Mart. The Budget Officer informed Complainant that he should visit the GSA
Advantage website to see if he could locate the equipment because the Agency could not
purchase it from Wal-Mart. S2 acknowledged the request to begin the interactive process and
inquired as to the best method to obtain the equipment. Complainant’s first-level supervisor
(S1) recommended that an ergonomic assessment be conducted.

Agency officials began collecting information to obtain the equipment to address
Complainant’s requested reasonable accommodation. On June 24, 2013, the Health and Safety
Officer completed an ergonomic assessment. The assessment concluded that Complainant
could benefit from the installation of a Sit-To-Stand ergonomic workstation and a
“nontraditional ergonomic office chair” such as a saddle ergonomic chair, a kneeling
ergonomic chair, or a recliner chair.

On June 26, 2013, Complainant sent an email to a GSA Vendor with pictures of the Sit-To-
Stand Ergonomic Workstation that he sought and requested a quote. The GSA Vendor stated
that he hoped to have a price quote the next day. On July 29, 2013, the GSA Vendor asked if
Complainant could purchase from any GSA contract holder. Complainant responded that he
believed that to be correct. On August 6, 2013, Complainant provided the GSA Vendor
pictures of the actual workstation and a saddle chair that he sought. The GSA Vendor
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responded that he would pass the information on to another individual (GSA Vendor 2) who
would research the items further and then order them. On August 13, 2013, Complainant
emailed GSA Vendor 2 and copied management officials informing them that he wished to
place the order for the computer stand and saddle chair, but that he needed to confirm that the
company had a GSA contract and to receive final approval from the Agency’s Budgeting
Office. On August 14, 2013, Complainant provided the quote for the equipment to the Budget
Officer.

In September 2013, there was some confusion as to how to pay for Complainant’s requested
equipment. Complainant had been told that he could make the purchase and charge it to the
Government Purchase Card as long as it involved a GSA Vendor. The confusion was cleared
up by September 26, 2013, and the items were delivered. On October 7, 2013, S2 submitted a
work order to the Engineering Service to have Complainant’s workstation assembled. After no
response, S2 had one of Complainant’s co-workers assemble the workstation. Complainant
later ordered and received the requested chair.

On January 28, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American), sex (male), disability, and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, he received a “Fully Successful”
performance appraisal; he was not selected for an Administrative Assistant Lead position
announced under Vacancy Announcement No. ORM-DSP-12-V0726044; he was subjected to
approximately 67 harassing incidents from 2007 through January 2013; and the Agency failed
to reasonably accommodate him beginning in May 2013.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on September 9 through 12, 2013, and issued a
decision on November 20, 2014.

In the decision, the AJ determined that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to his non-selection, the record
showed that Complainant applied for the position; however, for reasons unbeknownst to
Complainant or any of the witnesses, he did not appear as an available candidate from which a
selection could be made. Neither S2 nor the Selecting Official or any other individual
identified by Complainant had any input or influence over the development of the list on which

2 While the matter was pending a hearing before an AJ, Complainant moved to amend his
complaint to allege that the Agency failed to grant him reasonable accommodation in 2010 and
from May to September 2013. The AJ determined that Complainant’s requests for reasonable
accommodation dating back to 2010 were untimely discrete acts; however, he granted the
motion to include his claim that the Agency failed to provide him reasonable accommodation in
May to September 2013.
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qualified candidates appeared and from which a selection was to be made. Since Complainant
did not appear on a list establishing that he was a qualified candidate to be considered for
selection, he could not be considered for selection.

As to his reasonable accommodation claim, the AJ found that the evidence established that
management officials immediately attempted to grant Complainant’s request by seeking to
allow Complainant to purchase the items requested. The process turned out to be not as simple
as S2 believed as it required coordination and communication among several individuals in
various Agency departments and outside vendors. There may have been miscommunication
regarding what budget the monies for the items were to come from, but the AJ found that there
was no evidence of any intent to deny or delay the process. The record established that
Complainant was told the same day that he requested accommodation to visit the GSA website
to see if he could locate the equipment he sought. In the interim, an ergonomic assessment
was performed and completed by June 9, 2013. As soon as the budget issues were resolved,
the items requested by Complainant were ordered. Once received, the workstation required
assembly. There was a delay of several weeks in getting the workstation assembled; however,
that was not for lack of effort by S2. Thus, the AJ concluded that the Agency met its burden
of granting Complainant the reasonable accommodation sought.

Finally, regarding his hostile work environment claim, the AJ determined that the alleged
incidents were insufficiently severe or pervasive. Further, the AJ concluded that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. For
example, Complainant alleged that S2 sent him inappropriate emails including some of a
sexually-explicit nature. The AJ noted that the record showed that prior to S2 assuming the
position as Complainant’ second-level supervisor, they had a friendly relationship to the point
that they shared emails, some of which contained attachments of sexually explicit images that
were inappropriate for a work environment. The AJ determined that at some point,
Complainant and S2 stopped exchanging such emails; however, it was clear that the conduct
was not unwelcomed by either Complainant or S2. Complainant identified one particular email
S2 sent him containing a cartoon about Osama Bin Laden. Complainant claimed that he was
offended by the email because he has relatives who regularly attend and pray at a mosque.
The AJ noted that there was no evidence anyone other than Complainant knew he had Muslim
relatives. Further, there was no evidence that Complainant voiced any objections to S2 or
anyone else about the matter.

With respect to the counseling and monitoring regarding his tardiness, the AJ found that the
overwhelming evidence established that Complainant believed he had an unfettered right to be
tardy to work without any adverse consequences. Complainant was tardy on a regular basis
and most of his tardiness was unrelated to his medical condition. Thus, having been the only
employee who continuously engaged in the practice of being tardy, the Agency had more than
sufficient justification for monitoring Complainant’s attendance, performance, and issuing
discipline in the form of written counseling in June 2008; a reprimand in March 2010; and a
memorandum regarding his performance and behavior expectations in June 2011.

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Similarly, Complainant’s performance was adversely impacted by his continuous tardiness and
distraction by entertaining non-work related conversations with visitors outside of his office.
Consequently, the fact that Complainant was questioned about his daily accomplishments was
necessary based on his conduct. The AJ determined that at times, Complainant did not
contribute his full share of effort in support of his work unit because of his attendance and
distractions. As a result, Complainant’s final overall rating over the years was never higher
than “Fully Successful” because he never performed at a level better than that rating.

Regarding his claims related to his assignments, the AJ concluded that there was no evidence
that Complainant was given anything more than the same or similar type of assignments given
to all his co-workers depending on their relative levels of expertise. Additionally, the AJ
determined that there was no credible evidence to support Complainant’s claim that he had
accumulated approximately 93.5 hours of overtime since 2009 for which he was not
compensated. On the contrary, the AJ found that given the frequent instances of
Complainant’s tardiness over the years, it would appear that Complainant received his
complete full-time wages although he may not have fully worked the number of hours for
which he was compensated. As a result, the AJ concluded that Complainant was not subjected
to a hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in dismissing seven of his non-selection
claims and three of his reasonable accommodation denial claims. Further, Complainant argues
that S2’s testimony shows that he subjected Complainant to an objectively hostile work
environment based on sex when he sent him sexually-explicit emails. Complainant alleges that
the AJ ignored Agency witnesses who gave contradictory testimony. Complainant contends
that other employees had attendance and tardiness issues, but were treated more favorably.
Complainant argues that the Agency unreasonably delayed granting his reasonable
accommodation request. Finally, Complainant alleges that the AJ demonstrated bias against
Complainant in rulings he made before and during the hearing, including allowing the Agency
to submit untimely exhibits and interrupting Complainant’s counsel while he was cross-
examining witnesses. Accordingly, Complainant requests that the Commission reverse the
final order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether discriminatory intent existed is a factual finding. See
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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. See 29 C.F.R.
§ 1614.405(a).

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Ch. 9, at § VI.B. (Aug. 5, 2015).

Initially, with respect to Complainant's contentions on appeal regarding the AJ's handling of
his case, the Commission notes that EEOC regulations and Commission precedent provide AJs
with broad discretion in the conduct of hearing and related proceedings. See 29 C.F.R.
§ 1614.109; see also EEO MD-110, at Ch. 7. The Commission has reviewed the record and is
unable to find any evidence of bias, or other reversible error, resulting from the manner in
which the AJ managed and adjudicated this case. Furthermore, with respect to Complainant's
arguments related to AJ’s dismissal of several of his claims as untimely discrete acts, the
Commission finds no basis to disturb the AJ's finding that the claims were untimely raised.
The Commission will, however, consider the incidents as background evidence in support of
Complainant’s overall hostile work environment claim.

Disparate Treatment

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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for their actions. Specifically, as to his 2012 performance
appraisal, Complainant’s first-level supervisor testified that she rated Complainant as “Fully
Successful” because he did the minimum that was assigned. Hr’g Tr., at 380. S1 testified that
examples of the deficiencies in Complainant’s performance were that he was not timely in
completing assignments, was frequently tardy, and used both his government telephone and
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personal cell phone to make personal phone calls. Id. at 380-82, 384-86. S1 testified that
Complainant was given less work to do yet still produced less than other employees. Id. at
389.

Finally, with respect to his non-selection, the record shows that while Complainant applied for
the position, he was deemed either not qualified or did not rank high enough to be referred for
further consideration. Hr’g Tr., at 506. The record reveals that the initial review and ranking
of candidates was performed by Human Resources officials. Id. at 450. None of the
management officials had any role in Complainant’s name not appearing on the certificate of
eligible candidates.

The Commission finds that there is substantial evidence in the record to support that
Complainant did not establish that the Agency's explanation for its actions was a pretext for
discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory
animus. Thus, after reviewing the record and considering arguments on appeal, the
Commission finds that the AJ made reasonable credibility determinations, which are not
contradicted by objective evidence, and his factual findings are supported by substantial
evidence. Therefore, the Commission finds that Complainant has not established that he was
subjected to discrimination or reprisal as alleged.

Denial of Reasonable Accommodation

Under the Commission's regulations, an Agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

Upon review, the Commission finds that substantial evidence in the record supports the AJ's
finding that the Agency did not deny Complainant a reasonable accommodation. The record
reveals that Complainant requested a reasonable accommodation in the form of an ergonomic
workstation on May 8, 2013. S2 and other officials immediately started the interactive process
to address Complainant’s request. Hr’g Tr., at 410. Officials instructed Complainant to seek
the workstation through the GSA Advantage and ordered an ergonomic assessment. Id. at 410,
525. The assessment was conducted on June 4, 2013, and a Sit-To-Stand ergonomic
workstation and a non-traditional office chair were recommended. In June 2013, Complainant
began working with a GSA Vendor to find the necessary equipment. By August 2013,
Complainant had identified the workstation and was ready to place the order. In September
2013, Agency officials tried to determine how to pay for the equipment, and Complainant
ordered the workstation once the matter was cleared up. The workstation was delivered in
October 2013, and S2 had a co-worker assemble it after receiving no response from the
Engineering Department. Id. at 462, 541-42. Complainant later ordered and received the
requested chair. Id. at 163.
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The Commission finds that substantial evidence of record supports the AJ's determination that
the Agency made reasonable efforts and worked with Complainant in good faith to
accommodate him. Although there were some delays, the Commission does not find that the
delays were unreasonable under the circumstances of this case. Thus, the Commission finds
that the Agency did not deny Complainant reasonable accommodation in violation of the
Rehabilitation Act.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his 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).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that substantial record evidence supports the AJ’s determination that
Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment. The Commission notes that a single incident or group of
isolated incidents will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Regarding the
offensive emails that S2 sent Complainant, the Commission concurs with the AJ that it was not
frequent, severe, physically threatening, or an unreasonable interference with Complainant’s
work performance. Further, there is evidence that Complainant engaged in similar conduct
with S2 by sending or showing him sexually-explicit pictures or emails around the same time.
Hr’g Tr., at 715. While this behavior is highly inappropriate and does not belong in the
workplace, the Commission finds that the conduct at issue was insufficiently severe or
pervasive to establish a discriminatory or retaliatory hostile work environment. With respect
to the remaining incidents, the record reflects that the alleged conduct was more likely the
result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. Accordingly, the Commission finds that Complainant was not subjected to a
discriminatory or retaliatory hostile work environment as alleged.
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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).

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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 18, 2017
Date