Luciano B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181146 (E.E.O.C. Aug. 7, 2019)

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

Luciano B.,1
Complainant,

v.

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

Appeal No. 0120181146

Agency No. 200I00052017101931

DECISION

On February 20, 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
January 16, 2018, final decision (FAD) 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 an Information
Technology Specialist, GS 11, at the Agency’s Caribbean Healthcare Systems facility in San
Juan, Puerto Rico.

On March 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:

1. On February 6, 2017, Complainant was relieved of many of his primary job
functions, including among others, computer program updates, installation, and
inventory;

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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2. Complainant’s supervisor (S1: Hispanic) called Complainant into a meeting
without representation and informed Complainant that he is required to meet with
him every Friday to report all computer installations;
3. S1 called Complainant into a meeting without representation, yelled at him to
provide a written explanation for completing less than eight installations per day,
and would not allow Complainant to leave the meeting;
4. S1 did not complete a CA-1 for Complainant’s work-related injury;
5. S1 told Complainant his injury was a performance issue; and
6. S1 continuously sent Complainant emails about his upcoming performance
review.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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. (Aug. 5, 2015) (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”).

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

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This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established his prima facie case of discrimination.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to Complainant allegedly being relieved of his primary job duties, S1 averred that:

No, he was not relieved of any of his duties. I held a meeting with his Union and
advised them we have 1500 computers being delivered and these computers were
taking very long to get set-up and sent to the end user. To create a more efficient
process, I decided to use contractual employees to do the first imaging of the
basic software on the machines. The Union agreed this plan. So, we changed the
duties of the contractors. We never took away any of his duties. He still does set-
up, installation of user specific software, inventory, and everything he did before.
This was done to be more effective to move a higher volume of PCs. Prior to this
change, [Complainant] was doing 3-4 PC’s max per day. Now, he does about 8
per day. I distributed the workload to streamline the process. I am using my
resources to make the unit more productive and as the manager, I am allowed to
do that. None of his duties have been taken away. None of the other Technology
Specialist image the basic software on the computers. The contractual employees
do this now.

With regard to S1 requiring Complainant to meet with him every Friday to report all computer
installations and to provide a written explanation for completing less than eight installations per
day, S1 averred that:

Yes, I told him we would meet every Friday to discuss the progress of the PC’s
deployed. . . . No, I did not yell, he is the one who gets defensive very quickly.
[Complainant’s coworker (CW: Hispanic)] was a witness at this meeting. . . . The
initial memorandum dated, January 23, 2017, listed an expectation of 10 PCs each
technician was to deploy each day. At this meeting, I lowered the expectation to 8
PC’s being deployed by each technician per day. . . . He said he only deployed
five [sic] PCs on one of the days. He raised his voice, and said he wanted to leave
the meeting. I told him the meeting was not over and we still need input from
[CW], who was also in the meeting. I remained calm. I asked [CW] for his input
on what he thought a reasonable number of computers to be deployed was. Then
the meeting ended.

With regard to completing the CA-1, S1 averred that after Complainant told him he had injured
himself, S1 asked Complainant to show him where this had occurred. S1 averred that:
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He took me to the location where he had lifted a computer out of a handcart to his
desk and got hurt. I completed the CA-1 form, gave him a copy, and he signed it
on the same day. I do not understand why he is saying I did not complete the
form. I will send you a copy of the CA-1 form [Complainant] signed on 7/6/2017.

The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record we find that Complainant has failed to
meet this burden.

With regard to claim 1, we note that despite S1’s response that Complainant was not relieved of
any duties, S1’s own comments and other testimony indicate that, in fact, “imaging” was taken
away and that task was given to contractors. We note in this regard S1’s comment that “none of
the other Technology Specialist image the basic software on the computers. The contractual
employees do this now,” as well as CW’s statement that “Both of us are the IT Specialist on the
Deployment both [sic] now just install the computers and no longer to [sic] the imaging.” We
further note, however, that this evidence shows that Complainant was not treated differently than
similarly situated coworkers outside of his protected bases. Instead, the record shows that S1
removed the task of “imaging” from all similarly situated IT specialists. During the investigation,
Complainant was asked if he was aware of other similarly situated employees who were also
relieved of their job duties and his response did not address the question. We further note that
Complainant agreed that due to the change in tasks, he was now “deploying” more computers
than before. While Complainant disagrees with the task being taken away and given to
contractors, he was not shown that the Agency’s articulated reason for its action is a pretext, or
that the Agency’s actions were motivated by discriminatory animus or retaliatory motive.

With regard to claims 2 & 3, Complainant averred that he disagreed with S1’s explanation,
stating:

I can do the best but not all conditions for installation are under my control. On
the floors and offices there are various working conditions that one faces and
sometimes it can be fast but sometimes not. Also because of complexity of our
work and other situation we do not work by production. They (Management) did
this to retaliate against me for the previous EEOC case.

While Complainant may sincerely believe S1’s actions were in retaliation for Complainant’s
prior EEO activity, he has not shown, by a preponderance of the evidence, that such is the case.
We note in this regard that the evidence again shows that CW was subjected to the same
requirements as Complainant, thus showing that Complainant was not treated differently.
Furthermore, CW’s affidavit confirms S1’s testimony that S1 did not yell at Complainant and
that Complainant tried leaving the meeting before it ended but that S1 made him stay until the
end.

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With regard to claim 4, Complainant has not addressed S1’s claim that he did not refuse to sign
the form. The record includes a copy of a CA-1 form, signed by S1 on July 6, 2017. Complainant
has therefore not shown that the Agency’s articulated reason for its action is pretext.

Hostile Work Environment

We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile
work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) that Complainant may not include claims 1, 2, 3, and 4 in such a claim. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994). A prima facie case of hostile work environment that includes such claims is precluded
based on our finding that Complainant failed to establish that any of the actions taken by the
agency in claims 1, 2, 3 and 4 were motivated by discriminatory animus or retaliatory motive.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).

With regard to the remaining actions, raised in claims 5 & 6, whether individually or
collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment
is actionable if it is sufficiently severe or pervasive that it results in an alteration of the
conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (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 McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the Complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by
the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such
conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did
perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

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Following a review of the record we find that Complainant has failed to meet this burden. The
actions complained of were neither severe nor pervasive. Furthermore, they did not involve, nor
were they based on, Complainant’s protected bases. Accordingly, we find that Complainant has
not shown that harassment based on race or reprisal occurred.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met his burden of establishing
that discrimination or reprisal occurred, and we AFFIRM the FAD.

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

August 7, 2019
Date