Tom S.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 11, 2017

0120150536 (E.E.O.C. Apr. 11, 2017)

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

Tom S.,1
Complainant,

v.

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

Appeal No. 0120150536

Hearing No. 510-2013-00190X

Agency No. 200I-0ALC-2012102980

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 27, 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. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contracting
Specialist at the Agency’s North Florida/South Georgia Contracting Office in Gainesville,
Florida. In April 2012, the Acting Site Supervisor became Complainant’s first-level supervisor
(S1). On April 9, 2012, S1 was in Complainant’s co-worker’s (CW1) office with another
female co-worker. As Complainant approached CW1’s office, he overheard S1 make a
comment that he understood as “reach down there and rub that clitty.” Complainant was
offended by the comment, turned around, and walked out.

Later that day, CW1 and another co-worker (CW2) told Complainant that they had previously
heard S1 say to another co-worker that “If your dick was in my mouth, you wouldn’t be saying

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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that.” They reported that S1 then said “What? I thought it was funny.” Additionally, CW2
and another co-worker reported to Complainant that S1 had previously offered to give them
“titty hugs.” Complainant did not report any of the alleged conduct.

S1 subsequently informed her supervisor (S2) about the comment she made on April 9, 2012.
On April 16, 2012, S2 issued S1 a counseling letter regarding the incident and instructed her to
take a sexual harassment course and a supervisory training course online. In May or June
2012, CW2 told S2 about the inappropriate sexual comments S1 made in mid-2011, prior to S1
becoming a supervisor. S2 spoke with S1, and S1 denied making the alleged comments. S1
agreed to follow the Agency’s policy regarding appropriate workplace behavior. S2 did not
issue S1 any additional discipline.

On August 24, 2012, S1 issued Complainant a written counseling regarding his sick leave
usage. Complainant had called out sick 27 times in less than four months, using 34 hours of
leave. Prior to issuing the counseling, S1 consulted with Human Resources and S2. S2 had
suggested that S1 verbally counsel Complainant regarding his leave usage; however, S1
decided to issue the written counseling.

On July 27, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the basis of sex (male) and subjected him to sexual harassment when:

1. On April 9, 2012, Complainant overhead his supervisor (S1) say to another
employee, “Reach down there and rub that clitty;”
2. On April 9, 2012, two of Complainant’s male co-workers complained to
Complainant that S1 offered to give them “titty hugs;” and
3. On April 9, 2012, a co-worker told Complainant that S1 told him “You
wouldn't say that if your dick was in my mouth.”

On July 27, 2012, Complainant amended his complaint to allege that the Agency subjected him
to reprisal for prior protected EEO activity when on August 24, 2012, he was issued a written
counseling regarding his leave usage.

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 granted summary judgment as to Complainant’s sexual
harassment claim, and held a hearing as to his reprisal claim on February 5, 2014. The AJ
issued a decision as to all claims on September 17, 2014.

In her summary judgment decision, the AJ determined that Complainant failed to show that he
was subjected to sexual harassment. In so finding, the AJ found that the alleged conduct was
insufficiently severe or pervasive to establish a hostile work environment. Complainant
contended that on one occasion, he overheard S1 make an inappropriate and sexually explicit
comment to two female co-workers. Complainant had not alleged, or shown through
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affirmative evidence, that S1 made any other comment related to sex that was directed at him
or made in his presence during this time frame.

Moreover, Complainant maintained that he was subjected to sexual harassment because he
worked in a sexually-charged environment. Complainant argued that he was subjected to sexual
harassment because also on April 9, 2012, he was told about other sexually explicit comments
that S1 allegedly previously made. The AJ found that the undisputed record established that
these other comments attributed to S1 were allegedly made by her in mid-2011. The AJ noted
that the record showed that S1 made several sporadic comments over the years; however,
Complainant failed to introduce sufficient independent evidence establishing that the comments
were sufficiently severe or pervasive to establish a hostile work environment.

The AJ determined that the undisputed record reflected that any specific comments attributed to
S1 beyond the sole comment she made on April 9, 2012, occurred in mid-2011, prior to her
becoming a supervisor and nearly a year before the incident of April 9, 2012. Even if
Complainant had been aware of the 2011 comments, which he indisputably was not, these were
clearly isolated incidents and, moreover, according to the subjects of the comments
themselves, were apparently addressed by management when they were ultimately reported
inasmuch as they were not repeated. Further, the AJ noted again that none of the comments at
issue were directed at Complainant, nor were any of the comments threatening or accompanied
by any physical contact. Thus, the AJ concluded that Complainant could not prevail on his
claim of sexual harassment because he failed to show that the alleged harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment.

The AJ added that after S1 reported her own conduct, S2 took immediate action by issuing S1
a counseling letter reminding her that profanity was inappropriate behavior in an office
environment and instructing her to take online training. No similar conduct recurred.
Additionally, when S2 learned of the other remarks alleged to have been made by S1 in mid-
2011, she had verbal conversation with S1 reiterating the inappropriateness of the comments.
As S1 had already been disciplined about her behavior, S2 did not believe that additional action
was required. As a result, the AJ found that the Agency immediately took the above effective
steps to address and rectify the situation. As such, the Agency was not liable for S1’s conduct
even if it occurred as Complainant alleged.

With respect to his reprisal claim, the AJ found that the Agency had articulated legitimate,
non-retaliatory reasons for issuing Complainant the counseling. Specifically, Complainant had
an established pattern of leave that appeared to be excessive and suspect. In this respect, the
Agency notes that, since S1 became Complainant’s supervisor near the end of April 2012,
Complainant regularly took between half an hour to two hours of leave at the beginning of his
tour, often several times a week, and that this pattern continued for more than 90 days, as
shown in a leave pattern report generated in August 2012. Further, the leave pattern report
reflected that Complainant had 27 instances of leave over a period of approximately 90 days.
This leave was unplanned and Complainant did not submit his leave requests for the leave until
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after the fact. S1 appropriately took action to address the matter by issuing Complainant a
non-disciplinary written counseling after consulting with Human Resources.

S1 explained that she decided to issue the counseling in writing rather than verbally because
she wanted to draw Complainant’s attention to his leave record and work toward resolving the
issue. In this respect, S1 wanted it to be clear to Complainant that his leave pattern situation
was serious and she did not want to leave room for any misunderstanding. The Agency
maintained that the morale of the office was adversely affected when Complainant was
consistently out on 27 instances over a period of roughly 90 days, taking anywhere between a
half-an-hour to two hours of leave, and always at the start of his shift. The Agency added that
when Complainant was out of the office so often, it affected the morale and performance of the
office because his co-workers had to cover for him and do his work for him in order to
maintain the office’s functionality. S2 testified that it was within S1’s discretion to decide how
to address Complainant’s perceived pattern of leave abuse. S2 testified that in light of the
apparently adversarial relationship between S1 and Complainant, including Complainant’s
stated reluctance to work under S1, a written counseling was appropriate.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued that S1’s justification for issuing the counseling letter was untrue.
Complainant did not dispute that he took the leave in question, but noted that S1 approved the
leave and that he complied with all applicable leave procedures. Additionally, Complainant
argued that he took the leave in question due to a legitimate illness and that no one had
previously made an issue of his leave usage.

The AJ found that Complainant failed to introduce sufficient objective evidence to show that
the Agency’s reasons were pretext for unlawful reprisal. The AJ noted that Complainant
failed to show any written policy or rule showing that S1 was required to give him a verbal
counseling instead of a written one. Further, the record supported the Agency’s position that
the employment action in question was taken consistent with the exercise of management’s
legitimate business judgment in light of Complainant’s pattern of leave abuse. The AJ added
that Complainant consistently testified that it was his belief that, by virtue of his employment,
he was entitled to take said leave at his discretion without supervisory questioning or
interference. The AJ determined that beyond his self-serving opinion, Complainant failed to
establish that the Agency’s actions were unreasonable under the circumstances or otherwise a
guise for discrimination. As a result, the AJ found that Complainant had not been subjected to
reprisal 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 numerous co-workers testified and provided affidavits
showing that S1 made inappropriate comments and used profanity. Complainant argues that S1
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retaliated against him for his complaint of sexual harassment by issuing the written counseling.
In issuing the written counseling, Complainant alleges that S1 ignored the advice of Labor
Relations and S2. Complainant notes that S1 issued him a counseling letter despite her
approval of the leave at issue. Complainant contends that the AJ erred in finding S1 credible.
Finally, Complainant challenges the AJ’s disapproval of one of his witnesses from testifying.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

AJ’s Summary Judgment Decision

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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.

Sexual Harassment/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). The harasser's conduct should be evaluated from the objective
viewpoint of a reasonable person in the complainant's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Complainant’s sexual harassment claim consists of one comment he
overheard in April 2012, and reports from co-workers of other inappropriate conduct that they
witnessed a year earlier. 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 one inappropriate comment that
Complainant overheard, the Commission concurs with the AJ that it was not frequent, severe,
physically threatening, or an unreasonable interference with Complainant’s work performance.
Complainant presented no evidence that S1 made any other similar comment directed at him or
in his presence. Similarly, with respect to the comments reported by his co-workers, it is
undisputed that none of the comments were directed at Complainant and that Complainant did
not witness the conduct when it occurred in 2011. While S1’s comments were inappropriate
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and do not belong in the workplace, the Commission finds that the insularity and isolated
nature of the conduct at issue was insufficiently severe or pervasive to establish sexual
harassment or a discriminatory hostile work environment.

Under the circumstances present, the Commission finds that Complainant’s claim fails to rise
to the level of objectively unreasonable behavior that would trigger a violation of Title VII.
Furthermore, the undisputed record reveals that Agency management took immediate action as
soon as the matter was reported in that S2 issued S1 a letter of counseling regarding
appropriate workplace behavior and instructed her to take a sexual harassment online training
course and a supervisory training course. ROI, at 81, 150. Additionally, S2 again counseled
S1 once the 2011 conduct was reported. Id. Complainant presented no evidence that any
similar behavior recurred. Accordingly, the Commission finds no basis to disturb the AJ’s
summary judgment decision finding that Complainant was not subjected to sexual harassment
or a hostile work environment as alleged.

AJ’s Decision After a Hearing

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
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), Chap. 9, at § VI.B. (Aug. 5, 2015).

As an initial matter, the Commission will address Complainant’s argument on appeal that the
AJ erred in not approving one of his witnesses to testify at the hearing. Complainant claimed
that the disallowed witness, a supervisor, would have testified about how the counseling letter
was an adverse act. The Commission notes that AJs have broad discretion to regulate the
conduct of hearing, including the exclusion of irrelevant or repetitious evidence and limiting
the number of witnesses. 29 C.F.R. § 1614.109(e); EEO MD-110, at Chap. 7. The
Commission finds that there is no basis to disturb the AJ’s ruling excluding Complainant’s
witness or his testimony. The Commission finds there is no persuasive evidence that the
exclusion of the witness or his testimony somehow disadvantaged Complainant’s case such that
an abuse of discretion occurred.

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Disparate Treatment/Reprisal

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 reprisal, substantial
record evidence shows that Agency officials articulated legitimate, non-retaliatory reasons for
their actions. Specifically, S1 testified that she issued the written counseling after noticing
Complainant’s pattern of excessive unscheduled leave usage. Hr’g Tr., at 88; ROI, at C4.
Complainant had used 34 hours of sick leave over a four-month period and developed a pattern
of calling in sick for one to two hours at the beginning of his tour of duty. ROI, at 170. S1
followed Agency policy and consulted with the Labor Relations section of the Human
Resources Office. Hr’g Tr., at 90. An official in that office reviewed Complainant’s leave
report and agreed that there was a pattern of leave abuse. Hr’g Tr., at 92-93. The Labor
Relations official advised S1 to counsel Complainant regarding his leave usage in an effective
and efficient manner. Id. at 93. S2 testified that it was within a supervisor’s discretion to
issue counseling verbally or in writing. Id. at 74. S1 ultimately decided to issue Complainant
the written counseling to ensure that he was aware of his leave usage and how it affected the
morale of the office. Id. at 97, 113. S2 agreed that the written counseling was appropriate
rather than a verbal counseling based on the adversarial relationship at the time. Id. at 73.

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
reprisal. The record and facts gleaned at the hearing fail to disclose any evidence purporting
to show the Agency's actions were pretext for 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
her factual findings are supported by substantial evidence. Therefore, the Commission finds
that Complainant has not established that he was subjected to reprisal 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).

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
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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 11, 2017
Date