Val F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

2019000997 (E.E.O.C. Feb. 8, 2019)

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

Val F.,1
Complainant,

v.

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

Appeal No. 2019000997

Agency No. 200J05892018105040

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 20, 2018, dismissing his complaint of
unlawful 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.

BACKGROUND

During the period at issue, Complainant worked as an Air Conditioner Equipment Mechanic,
GS-10 at the Agency’s Kansas City VA Medical Center in Kansas City, Missouri.

On July 28, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected him to discrimination and a hostile work environment based on race, disability, and in
reprisal for prior protected EEO activity when:

on June 19, 2018, the Team Lead instructed Complainant to work in a crawl space
area that all employees were told to avoid.

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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In its August 20, 2018 final decision, the Agency dismissed the formal complaint for failure to
state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the alleged June 19, 2018,
incident was not sufficiently severe or pervasive to set forth an actionable claim of harassment.

The instant appeal followed. On appeal, Complainant argues that the work assignment was
issued in reprisal Complainant’s prior EEO activity. Complainant further argues that
management was aware of his health condition and the job assignment was in a hazard area.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that Agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§1614.103, 106(a). The Commission’s federal sector case
precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

The alleged incident is not sufficiently severe or pervasive to set forth an actionable claim of
harassment. Here, Complainant was asked on one occasion to work in a crawl space. We have
held that claims of an isolated incident of alleged harassment usually are not sufficient to state a
harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995).
The alleged incident is of a type that typically arise out of workplace conflicts or
communications. However, EEO laws are not a civility code. Rather, they forbid “only
behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale
v. Sundowner Offshore Serv., Inc, 523 U.S. 75, 81 (1998).

Additionally, there is nothing in the record reflecting that that Complainant even completed the
task assigned on June 19, 2018. Here, Complainant emailed the responsible management official
(“RMO”) and a union official on June 19, 2018 that he was not comfortable working in the
subbasement crawl space due to his health condition. The RMO responded to Complainant’s
concern the same day and stated in an email that he instructed Complainant to notify him when
he is assigned a job he “doesn’t feel comfortable doing.” The RMO also suggested that
Complainant submit a reasonable accommodation request as Complainant’s medical issues were
undocumented.

Finally, the alleged Agency action was not of a type reasonably likely to deter Complainant or
others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No.
05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).

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The Agency’s final decision dismissing the formal complaint for the reason discussed above is
AFFIRMED.

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.
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
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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

February 8, 2019
Date