0120132256
11-18-2015
Noah S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Noah S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132256
Hearing No. 532-2011-00023X
Agency No. 200H-0581-2010101800
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 28, 2013, 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. For the reasons stated below the Agency's final order which fully implemented the Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of no discrimination and no harassment is AFFIRMED.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against on the basis of race (black) regarding assignment of duties, working conditions and when he was allegedly subjected to harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electrician, WG-11 at the Agency's VA Medical Center in Huntington, West Virginia. He worked as an electrician the majority of the time, but approximately six hours per week were allotted for his duties as the Minority Veterans Program Coordinator (MVPC). Thursdays, from 8:00 a.m. to 2:00 p.m. were set aside for this purpose. As the MVPC, he advocated for minority veterans, served as a resource and helped them obtain health benefits. Complainant's supervisors were instructed to not pull him away from his MVPC duties unless there was an emergency. Complainant maintained however that he was treated differently than his coworkers with regard to the assignment of regular duties, and working conditions. He also asserted that he was subjected to harassment. Therefore, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of race (African-American). Complainant stated that:
A. He was discriminated against with regard to the assignment of duties when:
1. On February 18, 2010, although he was performing the duties of the MVPC, he was asked to repair two slow starting lights;
2. On February 24, 2010, his supervisor (S1) assigned him a work order that should have been a two man job but was assigned for his completion only;
B. He was discriminated against regarding working conditions when:
1. On February 19, 2010, S1 stated that the only computer Complainant could use was the engineering computer;
2. On February 22, 2010, S1 required him to meet with him three times a day, 8:00 a.m., 12:00 p.m. and 4:25 p.m., to give him a status update;
C. He was subjected to harassment when:
1. On February 18, 2010, although he was performing the duties of the MVPC, he was asked to repair two slow starting lights;
2. On February 24, 2010, S1 assigned him a work order that should have been a two man job but was assigned for his completion only;
3. On February 19, 2010, S1 stated the only computer he could use was the engineering computer.
4. On February 22, 2010, S1 required he meet him three times a day, 8:00 a.m., 12:00 p.m., and 4:25 p.m., to give him a status update;
5. On May 19, 2010, he became aware that office he used to serve as the MVPC would be moved;
6. On an unspecified date(s), the facility EEO manager refused to investigate a complaint of racial discrimination which other African-Americans asked him to look into while he was serving as the MVPC;
7. On an unspecified date he was "treated unfairly" with respect to maintaining the Fire Alarm System and not given the opportunity to apply education;
8. On an unspecified date he was not given the opportunity to work a four day work week;
9. On an unspecified date(s) Engineering Service supervision and the Human Resources unit refused to address issues he brought to their attention;
10. On an unspecified date a Human Resources Specialist stated that his supervisor violated rights by assigning GS and WG jobs without changing position descriptions;
1 l. On an unspecified date an issue involving high traffic orders showed lots of jobs out of electrician PD;
12. On an unspecified date(s) employees were sent to Boiler School "in secret"; and
13. On an unspecified date(s) a contractor was hired to perform work from which Complainant was removed.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. During the hearing, Complainant withdrew claims C6, C9, and C10. The AJ found that the evidence showed that with respect to claims A1 and C1, Complainant was not contacted by his supervisor (S1) but was directly contacted by the Agency's secretary to repair lights. Complainant told her that he was on MVPC duty and asked her to call S1 for another electrician. On February 22, 2010, when Complainant learned that no one had shown up to fix the problem, he immediately and voluntarily made arrangements to get access and repaired the lights. Management testified that it did not contact Complainant during his MVPC time to repair the lights. The Assistant Chief noted that Complainant knew many people through his time at the facility and they would contact him directly to request assistance for a maintenance need.
With regard to claims A2 and C2, where Complainant alleged that he was assigned work that should have been a two man job but he was assigned to perform it alone, the testimony showed that Complainant and two other electricians were originally assigned to the project but that both called in sick the day after the project was started. Management testified that the other electricians in the unit were assigned to other projects (fire alarm system and smoke detectors) so Complainant was asked to go forward with the project alone.
Regarding claims B1 and C3, where on February 19, 2010, Complainant stated that he was told that the only computer he could use was the Engineering Shop computer, Complainant testified that there was only one computer in the shop for five electricians so he routinely used the computer in the MVPC office to complete his electrical duties. Complainant maintained that the other electricians used the computers in other shops but were not told to only use the engineering shop computer. Management testified that Complainant was asked to use the engineering shop computer because Complainant was spending too much time in the MVPC office, which made communication regarding electrician work more difficult. Requiring Complainant to use the shop computer was management's attempt at curing the problem. Complainant admitted however that even after S1 told him to use the shop computer he continued to use the MVPC office computer. Complainant also admitted that he received no discipline for his continued practice.
Complainant testified that on February 22, 2010, S1 required him to meet with him three times a day while none of the other electricians were told to do so. Complainant admitted that S1 told him that he was requiring all the electricians to "check in" like this, but Complainant did not believe him. Complainant also admitted that before the practice was implemented he already checked in with his supervisor first thing in the morning, at lunch time, and in the evening before he left work. Management testified that Complainant was spending too much time in the MVPC office and that this was meant to cure the problem.
Complainant testified that he was told on May 19, 2010, that the MVPC office was going to be moved to a trailer on the outskirts of the VA property. Management testified that it received a request from a Director to locate a work station for a new clinical staff employee in the area that Complainant was using as the MVPC office. However, the union had concerns about the plan to move the MVPC office so the move was eventually called off and Complainant continued to work out of the MVPC office.
Regarding claim C7, Complainant testified that he was not allowed to maintain the fire alarm system even though he had passed all of the courses and had received certification and the software key for the fire alarm system. Management testified that while it was true that Complainant had completed all of the requirements to do the maintenance on the fire alarm system, Complainant indicated that he was not comfortable working on the software portion of the system so as a result, the company that installed the system was used to maintain the software while in-house electricians maintained only the hardware part. Management explained that these actions occurred in 2006.
With regard to Complainant's claim that he was not given the opportunity to work a four day work week, Complainant testified that he was the senior electrician in the shop and he should have been allowed to work a four day work week as two other electricians were allowed to do so. Complainant indicated that this had gone on since 2004, and as a result of the current schedule he was required to work alone on Fridays without any help. Management explained that while the four day work week was available prior to 2004, once new management came in it was decided by the Director that a four day option would not be continued; however, an agreement with the union provided that no one would be removed from the option if they already had it. An EEO Manager at the Agency testified that on August 20, 2009, she was told by upper management that all compressed work tours had been stopped due to the fact that they were not meeting the mission of the Agency, and all existing compressed work tours were being eliminated by attrition and no one had been added to the compressed tour since the moratorium.
Regarding Complainant's claim that he was assigned duties on unspecified dates outside of his electrical position description, management testified that they did not assign Complainant these duties but that he himself volunteered for duties all over the facility. In fact, management indicated that Complainant was told that he should limit his duties to his electrical position.
With respect to claim 12, that on an unspecified date employees were sent to boiler school in secret. Complainant testified that two electricians went to boiler training while he was not given that opportunity. S1 stated that no employees were sent to Boiler School in secret. He explained that a boiler was turned over to the Engineering Service and two electricians who took care of the boiler were present for in-service training when this occurred. S1 coordinated the in-service training, which the two electricians attended. Complainant did not work on boilers therefore his position did not require him to attend any boiler training. S1 indicated that Complainant did not work on boilers, did not handle work orders for boilers and did not perform any preventive maintenance on boilers. Two of the electricians were previously employed with the firm that installed three of the boilers at the Agency, and they attended the training.
With regard to claim 13, where Complainant alleged that a contractor was hired to perform work which Complainant was capable of doing. Complainant testified that he was asked to assess what was needed to repair an air compression system which was twenty-five years old. He recommended that the system be replaced and based on that recommendation it was replaced but the work was done by a contractor. Complainant maintained that he was also pulled off a remodeling project in the hospital where he usually hooked up the television and cable lines but again this work was completed by a contractor. Complainant testified that the latest project that he was pulled off was the PA system in 2010. Management explained that contractors are brought in if the service needs assistance otherwise they take care of matters themselves.
Following a hearing, the AJ found that the evidence of record showed that Complainant initiated contact with an EEO counselor regarding the accepted claims on February 18, 2010. The AJ found that 45 days prior to this date was January 4, 2010, Because Complainant's harassment claims C7, C8, Cl1, C12, and C13 were all discrete acts that occurred before January 4, 2010, the AJ dismissed the claims pursuant to 29 C J.R. � 1614.107(2) for untimely EEO counselor contact.
Further, with respect to the remaining claims the AJ found that Complainant failed to establish that he was subjected to race discrimination or harassment. In fact, the AJ found that Complainant failed to show that he was an aggrieved employee with respect to any of his claims.
The AJ also found that when considering these claims as a whole, the incidents claimed were not severe or pervasive enough to establish a hostile work environment. The AJ determined that Complainant was a credible witness but he was unable to show that the incidents that occurred were due to race discrimination and/or harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the AJ erred in finding that he did not demonstrate that he was subjected to race discrimination and/or harassment. Complainant maintains that the AJ erred in finding that his harassment claims were untimely as at least one incident of harassment fell within the 45 day reporting timeframe. Second, he maintains that the AJ misstated the legal standard for comparator evidence and subsequently mistakenly dismissed Complainant's comparator evidence that white electricians were allowed to work in teams. Third, Complainant maintains that the harassment he suffered was sufficiently severe and/or pervasive to affect a term, condition or privilege of employment. Finally, Complainant asserts that he produced evidence of harm that was adequate enough to render him an aggrieved employee. Complainant maintained that the AJ abused his discretion in arriving at the conclusion that he failed to state a claim.
In response, the Agency maintains that Complainant's claim that the AJ erred is not supported by the record. The Agency argues that the AJ correctly determined that the incidents complained of were not ongoing and continuing violations sufficient to create a hostile work environment claim. The Agency also maintains that the AJ corrected dismissed five incidents in Complainant's harassment claim as untimely because Complainant could not specify a date the harassment had occurred that was on or before January 4, 2010, the 45th day prior to his initial contact with an EEO Counselor. Further, the Agency maintains that the AJ correctly found that Complainant was not aggrieved by the Agency's actions and that he suffered no harm or injury based on the incidents alleged.
Moreover, the Agency asserts that the AJ decision was thorough and well analyzed and Complainant has offered no additional evidence to support overturning the AJ's decision. He provided no evidence that shows that the actions taken by management were motivated by discrimination or subjected him to a hostile work environment.
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.
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. We find the AJ's ultimate finding, that unlawful employment discrimination and/or harassment were not proven by a preponderance of the evidence, is supported by the record. In reaching this conclusion, we find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was fully explained above. We find that Complainant failed to show that the Agency's reasons were pretext for discrimination. Likewise, with respect to Complainant's claim of harassment, we find that even if his claims were all found to be timely, we agree with the AJ that the incidents complained of were work-related interactions with management that provided no persuasive evidence of discrimination based on race. Moreover, we agree that the incidents complained of were not severe or pervasive enough to establish a hostile work environment.
With regard to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements he has not provided any evidence which even remotely suggests that discriminatory animus was involved.
Therefore, the Agency's final order which found no discrimination and/or harassment is AFFIRMED.
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 tends 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.
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:
______________________________ n's signature
Carlton M. Hadden, Director
Office of Federal Operations
__11/18/15________________
Date
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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