Trey M,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120181148 (E.E.O.C. Aug. 20, 2019)

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

Trey M,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120181148

Hearing No. 550-2018-00109X

Agency No. 200P-0612-2016105098

DECISION

On February 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s final decision concerning an equal employment opportunity (EEO) complaint
claiming 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

During the period at issue, Complainant worked as a Mail Clerk at the Agency’s Northern
California Health Care System in Mather, California.

On September 25, 2016, Complainant filed a formal complaint. Complainant claimed that the
Agency discriminated against him based on age, race, disability, and in reprisal for prior protected
activity when, on July 28, 2016, Complainant was in an office while delivering the mail, the mail
cart was stolen, and management subsequently threatened to write him up as a result.

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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On November 25, 2016, the Agency dismissed the formal complaint. On appeal, the Commission
affirmed dismissal of the instant formal complaint based on age, race, and disability, which were
three bases originally raised. However, the Commission reversed the Agency’s dismissal of the
formal complaint solely on the basis of reprisal and remanded the matter to the Agency for further
processing. Trey M. v. Dep’t of Veterans Affairs., EEOC Appeal No. 0120170830 (Mar. 14,
2017).

After conducting a formal investigation on the reprisal claim, the Agency provided Complainant
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.

However, in December 2017, the AJ provided the parties with notice that he was considering
deciding the case by summary judgment based on the evidence developed during the investigation.
The Agency responded on January 3, 2018, with a motion for summary judgment, which
Complainant opposed. On January 15, 2018, the AJ issued a decision by summary judgment in
favor of the Agency.2 On January 18, 2018, the Agency issued a final order adopting the AJ’s
decision..

The instant appeal followed. On appeal, Complainant contends that the Agency has subjected him
to a twelve years of harassment.3 He asserts that the evidentiary record was insufficient because
the investigator had interviewed only two of his six supporting witnesses. Complainant accuses
managers of setting him up over his entire career in order to sabotage his advancement.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the legal and factual conclusions as stated
in the Agency’s final order adopting the AJ’s decision without a hearing, de novo. See 29 C.F.R.
§ 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015) (providing that an AJ’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed

2 The record does not contain a copy of the AJ’s written decision. However, the Commission’s
IMS electronic tracking system confirms that the decision in favor of the Agency was issued on
January 15, 2018. Complainant also does not dispute that the AJ found in favor of the Agency by
summary judgment.

3 We note, however, that in the Commission’s decision of March 14, 2017, referenced above, the
Commission expressly noted that any prior matters should only be considered “as background
evidence in support of the July 2016 incident.”

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de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the Agency’s factual conclusions and
legal analysis – including on the ultimate fact of whether discrimination occurred and on the legal
issue of whether a federal employment discrimination statute was violated. See id. at Ch. 9,
§ VI.A. (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”).

Summary Judgment

The Commission’s regulations allow decisions without a hearing upon a finding that there is no
genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s applicable regulation follows
the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court
held summary judgment is appropriate where it has been determined no genuine issue of material
fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The tribunal decides whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. The non-moving party’s evidence must be believed, and
justifiable inferences must be draw in favor of the non-moving party. Id. at 255. A “genuine issue
of fact” is one that a reasonable decision-maker could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Here,
Complainant has failed to point with any specificity to particular evidence in the investigative file
or other evidence of record that indicates such a dispute. While Complainant has asserted that the
investigative record is incomplete as several of his proposed witnesses were not interviewed, he
has not proffered any statements from these potential witnesses or even represented what he
believes their testimony would be.

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

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, a complainant may establish a prima facie case of reprisal by showing that:
(1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, the complainant was subjected to adverse treatment by the agency; and (4) a nexus
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exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sep. 25, 2000).

Here, the record reflects that the Agency had a legitimate, non-discriminatory reasons for the
actions at issue. We acknowledge that two witnesses support Complainant’s narrative that he had
been subjected to mistreatment. Nonetheless, other witnesses stated that the mail cart had been
moved briefly because they misperceived that Complainant had possibly forgotten the mail cart
hallway. Complainant himself admitted that he left the cart in hallways for periods of fifteen
minutes to visit offices and deliver mail therein. The record reflects that while management had
indeed contemplated formal discipline against Complainant for leaving the mail cart or for
distracting other employees, no such actions were ever taken. We note that supervisors ultimately
rated Complainant’s contemporaneous performance “outstanding.” All management officials
involved attested that they were unaware of Complainant's prior EEO activities. Complainant
simply failed establish a nexus between his past EEO activity and any adverse Agency actions.

We also analyzed Complainant's accusation that he has been subjected to a hostile work
environment. To establish a prima facie for harassment, a complainant must show that: (1) he is a
member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical
conduct involving the protected class; (3) the harassment was based on his protected status; and
(4) the harassment affected employment or unreasonably interfered such that it created an
intimidating or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No.
01965238 (Oct. 16, 1998).

First, we find the harassment insufficiently severe and insufficiently pervasive to create a hostile
work environment. A fair reading of the record revealed the matter raised in the subject claim
was reflective of an ordinary workplace dispute about routine matters of efficient time
management during the course of everyday duties. This Commission does not consider such
interactions sufficiently severe or pervasive. Lynch v. U.S. Postal Serv., EEOC Appeal No.
01981027 (July 16, 1999). Second, we find Complainant failed to show any nexus between the
Agency’s actions and his protected bases.

CONCLUSION

We AFFIRM the Agency’s implementing order finding no discrimination, because the
preponderance of the evidence of record did not establish discrimination had occurred.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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.
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.

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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 20, 2019
Date