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

Equal Employment Opportunity Commission

Sep 26, 2019

0120180616 (E.E.O.C. Sep. 26, 2019)

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

Alfredo S.,1
Complainant,

v.

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

Appeal No. 0120180616

Agency No. 200J-0589-2016900057

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 8,
2017, final decision 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
Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency established an affirmative defense by the
preponderance of the evidence in the record that precludes liability for unlawful harassment
based on sex; and (2) whether Complainant established by the preponderance of the evidence in
the record that his voluntary retirement constituted a constructive discharge.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a WS-3566-02
Housekeeping Aid Leader at the Agency’s Kansas City, Missouri, VA Medical Center (VAMC)
facility.

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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Complainant’s first-line supervisor (S1, male, prior protected EEO activity) was the Chief of
Environmental Management Services (EMS). Complainant is male. According to Complainant,
he engaged in protected EEO activity in or around September 2010 when he provided an
investigative affidavit as a witness to an EEO complaint filed by a coworker (C1). According to
Complainant, C1’s EEO complaint named S1 as a responsible management official.

Complainant alleged that beginning in or around March 2008, S1 began making frequent
derogatory remarks about Complainant’s sex and his perceived sexual orientation, such as
calling him a “pervert,” calling him a “homo,” saying “yes, ma’am” when speaking with
Complainant, and saying that Complainant “came out of the closet,” had “homosexual
tendencies,” and reminded him of “the gay parade.” Complainant averred that the way S1 made
these comments indicated animosity towards gay people. According to Complainant, S1 also
made remarks about Complainant “chasing after women” in other departments of the VAMC.
Complainant stated that S1 made these sex- or sexual-orientation-related comments on a weekly
basis. Complainant averred that on a regular basis S1 also called him “dumb,” a “retard,” and
“stupid” and that once S1 told him to “kiss my Black ass.” Report of Investigation (ROI) at 66.
Complainant stated that on multiple occasions he asked S1 why he made these remarks and
requested that he stop but that S1 laughed it off. With the exception of calling Complainant a
“homo” who “came out of the closet,” which he characterized as a joke, S1 denied making any
of the alleged comments. S1 stated that Complainant did not object to the one comment he did
make. According to Complainant, he did not report S1’s remarks to higher-level management or
to Human Resources (HR) because he “tried not to let it bother” him and because he “didn’t
really take it to heart.” ROI at 64.

A former EMS Supervisor (C2, female, prior protected EEO activity) stated that she retired
because S1 subjected her to constant harassment based on her age. According to C2, she would
feel sick with dread when going to EMS staff meetings because S1 was disrespectful to all
employees, including herself and Complainant. C2 averred that she frequently observed S1 call
Complainant a “pervert,” “homo,” and “faggot.” ROI at 89-90. C2 stated that she encouraged
Complainant to report the harassment.

The EMS Administrative Officer (C3, female, prior protected EEO activity) stated that she could
not remember a single time that S1 acted in a respectful manner towards Complainant.
According to C3, S1 would call Complainant “gay” and “faggot” on a daily basis. ROI at 94. C3
stated that S1 “made it clear” that he did not like gay or bisexual people. ROI at 95. C3 averred
that S1 made frequent sexist, racist, and retaliatory comments to her, C2, and other employees,
but she stated that Complainant was the only person singled out by S1 with comments based on
sexual orientation.

Complainant stated that S1 changed his scheduled days off or shift for no apparent reason at least
six times between May 2008 and June 2016. S1 averred that as a supervisor he made changes to
his subordinates’ schedules based on operational needs. Complainant also alleged that when he
took sick leave S1 would retaliate against him by assigning him extra details or threatening that
Complainant would lose his job if he took more sick leave.
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S1 denied assigning Complainant extra duties or threatening his job. S1 averred that
Complainant was a conscientious employee who rarely used sick leave. According to
Complainant, he was an acting supervisor between November 2009 and November 2010, but he
was not paid as an acting supervisor. Complainant averred that S1 told him that HR said
Complainant could not be paid for acting because there was no available supervisor position, but
he did not believe S1 was telling the truth. S1 denied interfering with Complainant’s pay and
stated that Complainant was temporarily promoted to supervisor in August 2010. The record
indicates that Complainant was paid as a temporary supervisor from August 29, 2010, to
November 21, 2010. According to Complainant, beginning in 2015 through early 2016 he was
required to attend training once a month on the first Saturday of the month. Complainant averred
that he requested overtime but that S1 forced him to accept compensatory time-off instead.
According to S1, the training in question was supervisory training, and the policy was that
employees could shift their day off or accrue compensatory time for attending this training.

Complainant stated that in July 2016 he went to HR and stated that he wanted to retire as soon as
possible. Complainant averred that in June 2016 the harassment by S1 became unbearable and
that was the reason he decided to retire. According to Complainant, he did not tell anyone in HR
why he was retiring. Complainant alleged that he did tell C2 on his last day at work before
retiring that he was doing so because S1’s harassment was forcing him out. The record contains a
Request for Personnel Action for Complainant’s voluntary retirement effective July 31, 2016,
which states that the reason for retiring was “to obtain retirement benefits.” ROI at 171-72.

The record contains the Kansas City VAMC Harassment Prevention Policy, which requires
regular training of all employees on the anti-harassment policy and provides that any employee
can report harassment to an immediate supervisor, to a Service Chief, to HR, or to the EEO
Program. A Kansas City VAMC Supervisory HR Specialist (HR1) stated that, until Complainant
initiated contact with an EEO Counselor on September 14, 2016, there was no record of
Complainant or anyone in his chain of command reporting to either HR or to the EEO Program
that Complainant was being harassed by S1.

On October 21, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male, perceived sexual orientation)2 and reprisal
for prior protected EEO activity (serving as a witness for C1’s EEO complaint in 2010) when:

1. From March 2008 to July 31, 2016, S1 subjected Complainant to a hostile work
environment by making derogatory comments, changing his work schedule,
denying him compensation for acting as supervisor from 2009-2010, and denying
him overtime in 2015 through early 2016; and

2 The Agency accepted sexual orientation as a basis for the complaint, but Complainant did not
specify his sexual orientation.

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2. On July 31, 2016, Complainant was constructively discharged when he was
forced to retire due to the hostile work environment.

The Agency classified claim 2 as a mixed-case claim. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and notice of his right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ) on his hostile work environment claim, but not his mixed-case constructive discharge claim.
In accordance with Complainant’s request, the Agency issued a final decision on both of his
claims pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.3 Although the Agency noted
that C2 and C3 corroborated Complainant’s claim that S1 subjected him to sex- and sexual-
orientation-based remarks, the Agency found that it was not liable for any workplace harassment
because the Agency had an anti-harassment policy, yet Complainant unreasonably waited to
report S1’s conduct until after he retired.

Complainant timely filed the instant appeal with the Commission regarding the Agency’s final
decision on his non-mixed hostile work environment claim. Complainant also timely appealed
the Agency’s final decision on his mixed-case constructive discharge claim to the Merit Systems
Protection Board (MSPB). On April 17, 2018, an MSPB AJ issued an initial decision dismissing
Complainant’s MSPB appeal for lack of jurisdiction.

CONTENTIONS ON APPEAL

Complainant makes no contentions on appeal.

In response to Complainant’s appeal, the Agency requests that the Commission affirm its final
decision finding no discrimination.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (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,

3 We note that the Agency, in finding no discrimination, improperly relied on evidence that is not
in the written record submitted to the Commission. Final Agency Decision at 9, 11. We decline
to credit the Agency’s representation of the accuracy of this evidence that is not part of the
record, and we further remind the Agency of its obligation to submit the complete record to the
EEOC’s Office of Federal Operations within 30 days of the notification that a complainant has
submitted an appeal. See 29 C.F.R. § 1614.403(e); EEO Management Directive for 29 C.F.R.
Part 1614, at Chapter 9, § IV.G. (Aug. 5, 2015).
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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”).

When the MSPB has denied jurisdiction in matters such as Complainant’s constructive discharge
claim, the Commission has held that there is little point in continuing to view the matter as a
“mixed case” as defined by 29 C.F.R. § 1614.302(a). Rather, it is treated as a “non-mixed”
matter and processed accordingly. See Schmitt v. Dep’t of Transportation, EEOC Appeal No.
01902126 (June 29, 1990) (sets forth the policy of the Commission assuming jurisdiction over
cases dismissed by the MSPB for lack of jurisdiction); 29 C.F.R. § 1614.302. Where the MSPB
dismisses a claim for lack of jurisdiction, the agency must resume processing the matter from the
point processing ceased under 29 C.F.R. Part 1614.

However, we do not remand this claim to the Agency for processing as a non-mixed matter
because the Agency previously processed Complainant’s complaint and, in accordance with
Complainant’s complaint, issued a final decision. Moreover, Complainant does not request on
appeal that this claim be remanded for non-mixed processing. Accordingly, we will consider the
merits of Complainant’s constructive discharge claim as well as his hostile work environment
claim. See Estate of Gumz v. Dep’t of Agriculture, EEOC Appeal No. 0120083650 (Aug. 21,
2009).

Complainant alleged that he was subjected to a hostile work environment based on sex, sexual
orientation, and reprisal. 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). Further, the incidents must have been "sufficiently severe or pervasive
to alter the conditions of [Complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton,
524 U.S. 775 (1998). However, where the harassment does not result in a tangible employment
action the agency can raise an affirmative defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct
promptly any harassing behavior; and (2) that the complainant unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the agency or to avoid harm
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otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999)
(Enforcement Guidance on Vicarious Employer Liability). This defense is not available when the
harassment results in a tangible employment action, e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee. In the case of co-worker harassment, an agency
is responsible for acts of harassment in the workplace where the agency (or its agents) knew or
should have known of the conduct, unless it can show that it took immediate and appropriate
corrective action. Enforcement Guidance on Vicarious Employer Liability.

Complainant is a member of statutorily protected classes by virtue of his sex, perceived sexual
orientation, and participation in prior protected activity. However, there is no evident connection
between Complainant’s sex, sexual orientation, or prior protected activity and the following
instances of alleged harassment: S1 calling Complainant “dumb,” a “retard,” and “stupid” and
telling him to “kiss my Black ass”; S1 changing his shift or scheduled day off; S1 assigning him
extra work or threatening him when he took sick leave; S1 preventing Complainant from being
compensated as an acting supervisor; and S1 requiring Complainant to accrue compensatory time
or shift his day off instead of receiving overtime pay. Therefore, Complainant has not established
that this alleged harassment was based on his membership in any protected class.

However, there is abundant evidence in the record that S1 subjected Complainant to unwelcome
harassment consisting of comments based on Complainant’s sex and perceived sexual orientation
on a regular basis between 2008 and 2016, such as when S1 called Complainant a “faggot” and
“homo.” The Commission has previously observed that that the words “fag” and “faggot” have
been historically used in the United States as highly offensive, insulting, and degrading sex-
based epithets against gay men. See Couch v. Dep’t of Energy, EEOC Appeal No. 0120131136
(Aug. 13, 2013). Additionally, the words “fag” and “faggot” are offensive, insulting, and
degrading sex-based epithets historically used when a person is displaying the belief that a male
is not as masculine or as manly as the person is. See, e.g., Nichols v. Azteca Rest. Enters., Inc.,
256 F.3d 864, 870, 875 (9th Cir. 2001) (concluding that verbal abuse, including the use of the
epithet “faggot,” occurred because of sex). We will assume for the purposes of this decision that
Complainant established that he was subjected to a hostile work environment based on sex and
sexual orientation.

We next consider whether there is a basis for imputing liability for S1’s harassment to the
Agency. S1 was Complainant’s immediate supervisor, and we assume without so finding that S1
subjected Complainant to harassment that did not result in a tangible employment action.
Therefore, the Agency would be subject to vicarious liability for S1’s unlawful harassment
unless it can establish by the preponderance of the evidence in the record both prongs of the
affirmative defense described above. With respect to prong (1), we find that the Agency
established that it exercised reasonable care to prevent and correct promptly any harassing
behavior through its workplace harassment policy.

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Prong (2) of the affirmative defense requires the Agency to establish that Complainant
unreasonably failed to take advantage of the preventive or corrective opportunities provided by
the Agency or to avoid harm otherwise. According to Complainant, he did ask S1 why he was
harassing him, but he did not report S1’s harassment to HR, the EEO Program, or anyone else in
management until after he retired because he “tried not to let it bother” him and because he
“didn’t really take it to heart.” We find that the Agency has met its burden of establishing that
Complainant unreasonably failed to take advantage of the preventive or corrective opportunities
provided by the Agency or to avoid harm otherwise. See Complainant v. Dep’t of Commerce,
EEOC Appeal No. 0120132809 (May 1, 2014) (agency established affirmative defense where
complainant, who was aware of anti-harassment policy, did not ask supervisor to stop harassing
her and did not report harassment to management for more than two months). Therefore, the
Agency is not liable for S1’s unlawful harassment.

Complainant also alleged that he was forced to retire, which amounted to a constructive
discharge. A constructive discharge occurs when the employer, through its unlawful
discriminatory behavior, makes the employee's working conditions so difficult that any
reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman
v. Dep’t of Defense, EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has
established three elements which a complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in the complainant's position would have found
the working conditions intolerable; (2) conduct that constituted discrimination against the
complainant created the intolerable working conditions; and (3) the complainant's involuntary
resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice,
EEOC Request No. 05940688 (Apr. 13, 1995).

Although the record indicates that Complainant's employment situation was difficult and
upsetting to him, we find that a reasonable person under such circumstances would have
remained on the job and tried to rectify the situation. See Complainant v. Dep’t of Veterans
Affairs, EEOC Appeal No. 0120121920 (June 25, 2014) (complainant who felt treated like
second-class citizen and retired before reporting her treatment or attempting to mitigate the
situation did not establish that she was constructively discharged). Complainant stated that for
eight years he was frequently harassed by S1 but tried not to let it bother him. The record shows
that, although Complainant felt that the harassment intensified in June 2016, he retired prior to
reporting the hostile work environment or otherwise attempting to mitigate his difficult work
conditions. We find that a reasonable person under these conditions would not have retired as the
first option to deal with the harassment. Therefore, we find that Complainant has not established
by the preponderance of the evidence in the record that he was constructively discharged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the
preponderance of the evidence in the record establishes an affirmative defense to avoid liability
for the alleged harassment and because the preponderance of the evidence in the record does not
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establish that a reasonable person in Complainant’s circumstances would have felt compelled to
resign due to intolerable working conditions.

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.
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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

September 26, 2019
Date