Victor S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 13, 2019

0120170343 (E.E.O.C. Feb. 13, 2019)

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

Victor S.,1
Complainant,

v.

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

Appeal No. 0120170343

Agency No. 2003-0666-2016100493

DECISION

On September 29, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 14, 2016 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., 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 a Vocational Rehabilitation Specialist at the
Agency’s Mental Health Residential Rehabilitation Treatment Program, Veterans Affairs
Medical Center in Sheridan, Wyoming (VAMC Sheridan).

On January 14, 2016, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment and a hostile work environment based on sex (male), disability,
and in reprisal for prior EEO activity when:

1. on October 5, 2015, the Chief of Mental Health (Chief) required him to take 15
minutes of annual leave after he returned five minutes late from an appointment;
2. on October 29, 2015, the Chief denied him sick leave;

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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3. on December 10,2 015, the Assistant Chief of Medical Health and the Chief rated him
Fully Successful on his FY15 performance appraisal;

4. on December 21, 2015, he learned that the Chief changed his position of Vocational
Rehabilitation Specialist, position description #040934 to Vocational Rehabilitation
Specialist, position description #102670; and

5. on June 15, 2016, a female coworker ignored and would not speak to him after she
had a discussion with the Chief about “explicit conversations” by female staff
members, which had occurred in his office.2

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
September 14, 2016, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant, on appeal, argues that the investigator erred in
framing his claims and that the Agency’s decision “was not a fair decision and I have been
dealing with this process for over a year and [Chief] continues to make my work environment a
hostile one.”

ANALYSIS AND FINDINGS

As an initial matter, we find that Complainant’s assertions that the investigator erred in the
framing of his claims is not substantiated by our review of his formal complaint and related EEO
counseling report. Therefore, we will proceed to address the merits of Complainant’s complaint
based on the evidence gathered during the investigation.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

2 The record reflects that claim 5 was later amended to the instant formal complaint.

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In support of his disability claim, Complainant stated that he is a service-connected veteran with
a heart condition characterized by episodes of atrial fibrillation as frequently as twelve times per
day. Complainant also indicated that the frequent episodes require him to take medication. For
purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Regarding claim 1, Complainant asserted on that October 5, 2015, the Chief required him to take
15 minutes of annual leave after he returned five minutes late from an appointment.

The Chief (male, no disability/prior protected activity) stated that during the relevant period he
was Complainant’s supervisor. The Chief stated that management never required Complainant
to take 15 minutes of leave on October 5, 2015. There is no independent documentary evidence
of record to support Complainant’s claim.

Regarding claim 2, Complainant alleged that on October 29, 2015, the Chief denied him sick
leave.

The Chief stated at that time he was aware of Complainant’s cardiac condition. The Chief
explained that on October 29, 2015, he received an emergency email from Complainant and
“since it registered as an immediate emergency situation, so much that I responded to him
immediately an email text and then left my office immediately after that to go up to his office
because I was worried about his well-being.” The Chief stated that he instructed Complainant to
go to the clinic “to make sure that if this is as [serious] as he has indicated, I’d rather have him be
here at the medical center to receive treatment right away rather than endanger himself or
someone else on his way home.”

Further, the Chief stated that Complainant was not denied sick leave “for that time. He was at
work. He had … an issue. I asked him to present to Employee Health before he went home.”

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Regarding claim 3, Complainant alleged that on December 10, 2015, the Assistant Chief of
Medical Health and the Chief rated him Fully Successful on his FY15 performance appraisal.

The record reflects that Complainant’s performance plan lists four elements as follows: Direct
Patient Contact, Individual Performance, Privacy and Confidentiality, and Customer Service.
The record further reflects that while Complainant received an exceptional rating for his
achievement in Direct Patient Contact and Individual Performance, he received fully successful
in Privacy and Confidentiality, and Customer Service.

The Chief began supervising Complainant in November 2014, and had not previously rated his
performance. The Chief stated that during the relevant period, he discussed with other
supervisors and managers involved in Complainant’s tasks and relied on their feedback to rate
Complainant. The Chief explained that Complainant was documented “as exceptional in two of
the four categories of his rating achievements. The other two he was rated fully successful. And
because he wasn’t rated exceptional in all four categories was the reason why he wasn’t allowed
to be rated any higher.”

The former Assistant Chief of Medical Health stated at that time she was asked by Human
Resources (HR) to prepare the employees’ appraisal because the Chief was on leave.3
Specifically, the former Assistant Chief stated that HR “wanted me to deliver all of his appraisals
prior to the end of the time period, the certified time period.” The former Assistant Chief stated
that while she did not write any of the elements, she was given the appraisal from HR that had
been completed by the Chief.

Further, the former Assistant Chief stated that when she provided Complainant his appraisal, he
asked her how he would go about appealing the decision, and I instructed him to go to [HR
representative] in HR to start that process.”

Regarding claim 4, Complainant claimed that on December 21, 2015, he learned that the Chief
changed his position of Vocational Rehabilitation Specialist, position description #040934 to
Vocational Rehabilitation Specialist, position description #102670.

The Chief stated that he had no input into the change of Complainant’s Position Description
numbers, and that the Position Description was dated two months prior to his assuming the
position of Chief of Mental Health which was confirmed by Human Resources “on those
numbers that he had listed previously. So there was no change by me, and he actually had that
PD before I did.”

Regarding claim 5, Complainant asserted that on June 15, 2016, a female coworker ignored and
would not speak to him after she had a discussion with the Chief about “explicit conversations”
that had occurred in his office by female staff members.

3 The record reflects that in May 2016, the former Assistant Chief left the Mental Health
Residential Rehabilitation Treatment Program for a different program within VAMC Sheridan.
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The Chief acknowledged that a named female coworker (Coworker) in Complainant’s unit
informed him of Complainant’s discomfort with the inappropriate conversations concerning
Brazilian wax. The Chief stated that while he does not have inappropriate conversations with
female employees, he spoke to Coworker about the Brazilian wax issue and provided corrective
feedback about appropriate conversations in the workplace. For instance, the Chief explained
that as a result of his conversation with the female coworker “having that information at hand, I
went directly to the female that initiated the conversation and spoke to her only and provided
corrective feedback about appropriate conversations in the workplace. And at no time did I ever
indicate to her or to any other female staff that they should not have contact with
[Complainant].”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory or retaliatory animus.

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected bases – in this case, his sex, disability or
prior EEO activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself. Here, Complainant simply has
provided no evidence to support his claim that his treatment was the result of his sex, disability
or prior EEO activity.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination 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 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
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

February 13, 2019
Date