0120150423
08-31-2017
Charles G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charles G.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150423
Agency No. 2001-0573-2013103474
DECISION
On November 6, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 30, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that he was subjected to discrimination and/or harassment as he alleged.
ISSUES PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to discrimination or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Vehicle Operator, GS-7, Facilities Management Services at the Agency's VAMC Gainesville facility in Gainesville, Florida. Complainant alleged that he was subjected to discrimination and a hostile work environment based on his protected bases. He maintained that the Agency ignored his complaints of harassment by his coworkers and from one coworker in particular who harassed him for over three years.
On September 23, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (Caucasian), national origin (South Florida, Strong Southern Accent), religion (Christian), color (White), age (62), and reprisal for prior protected EEO activity when:
1. From November 1, 2011, ongoing, management did not intervene to stop harassment/hostile work environment against Complainant by employees;
2. On November 1, 2011, two employees sat in the back of the bus and talked about how rude Complainant was;
3. On November 18, 2011, a coworker, wrote a Report of Contact (ROC) stating that Complainant would not drop her off in front of the Butler building and stated that he was "nasty, mean, and rude toward her."
4. On May 12, 2012, Complainant was given a written counseling. He filed a grievance with the union and after a meeting with management the counseling was to be shredded the next day. However, after filing a FOIA request regarding the Letter of Instructions, he became aware that the counseling was left in his record.
5. On April 10, 2013, when a coworker got off Complainant's bus, she said she was going to talk to his supervisor.
6. On April 10, 2013, Utility System Preparer Supervisor, (S1), wrote a ROC about a conversation he had with Complainant; he falsely accused Complainant of being loud and yelling at him to the point that he felt threatened;
7. On April 16, 2013, Complainant's supervisor received a ROC that he was observed operating a government vehicle without wearing a seatbelt;
8. On April 29, 2013, Complainant stated that a coworker called him an "asshole." He reported it, but nothing was done about it;
9. On April 29, 2013, Complainant said after he went to the union on personal business, S1, wrote that he refused to tell him what it was about;
10. In May 2013, the Human Resources Specialist, sent an email to S1 stating, "[Complainant] is to cut-out the complaints about the conduct of his coworker. If [he] does not stop, [he] will be terminated from service with the VA;"
11. On June 7, 2013, the former Facility Maintenance Service Supervisor (S2) issued a Letter of Instructions to Complainant;
12. On July 24, 2013, the coworker demanded that Complainant take her to her car;
13. On August 29, 2013, in a meeting with a Human Resource Specialist, Complainant, and his representative, informed him that due to the July 24, 2013, ROC, the Letter of Instruction would remain in his file for one to two years; and
14. In October 2013 and November 2013, Complainant became aware that ROCs which were to be removed from his file remained in his HR file.2
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged. Specifically, management maintained that the actions taken against Complainant were not based on his protected bases. Management indicated that Complainant was issued ROCs because of his interactions with management and other employees. For example, management explained that Complainant was issued a Letter of Instruction for not wearing his seat belt while driving and he was issued another Letter of Instruction for engaging in a spirited conversation with S1. Management explained that Letters of Instruction remained in Complainant's record because he continued to receive them.
With regard to Complainant's contentions about harassment by his coworker, management articulated that both Complainant and the coworker were disciplined for their ongoing feud. Both were issued Letters of Instruction and both were counseled regarding their interactions. With regard to the comments made by other workers, e.g. that Complainant was rude; the Agency maintained that they were isolated incidents and that there was no evidence that the comments were made with regard to Complainant's protected bases. The Agency found that Complainant did not demonstrate that its nondiscriminatory reasons were pretext for discrimination.
Regarding Complainant's harassment claim, the Agency maintained that the incidents complained of were work-related interactions that were isolated and were not severe or pervasive enough to establish a hostile work environment. Thus, the Agency found that Complainant did not prove his case.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he was not aware that the EEO process required him to have the burden of proof with regard to his allegations. He maintains that there was a lot of information that he was not aware of and that had he known he would have responded to managements' assertions. For example, he maintained that he was unaware that his coworker had filed a complaint against him or that she thought that he was a racist which he denies.
Complainant also asserts that the investigation was not properly conducted because the investigator failed to ask appropriate follow-up questions. Moreover, Complainant contends that many witnesses were not truthful because they stated that they were unaware of his age, prior EEO activity, or national origin. He also maintained that he was subjected to discrimination because of his "Florida Cracker" heritage. He contends that he received treatment that was different than other experienced shuttle bus drivers. He maintains that it was known that he wanted to become a full-time driver but the Agency brought in two outsiders to fill the full-time positions.
In response, the Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not demonstrate that the reasons were pretext for discrimination. The Agency argues that while Complainant disagrees with the Agency's decision he has not shown that discriminatory animus was involved or that the incidents were severe and pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
Standard of Review
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 Chapter 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, 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").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas. For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, and assuming, arguendo, that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, namely, that both Complainant and the coworker were issued Letters of Instructions as a result of their behavior towards each other. That Complainant was properly issued Letters of Instructions for not wearing a seat belt while driving and for arguing with his supervisor. The documentation was not removed from his record because his continuing behavior caused him to receive additional ROCs. The Agency found that Complainant did not show that the Agency's reasons were pretext for discrimination. He did not show that discriminatory animus was involved with respect to the Agency's actions.
Further, with regard to Complainant's claims of harassment/hostile work environment, even if we consider all of Complainant's claims in total and presume them to be accurate, we find that these matters were for the most part common work-place interactions. The record indicates that the incidents complained of by Complainant and the coworker, were not severe or pervasive conduct but were petty complaints about each other, e.g., the coworker calling Complainant rude and the vulgar comment she made about him and Complainant maintaining that the coworker was rude and wanted special treatment including being dropped off at her car.3 Not everyone was satisfied with Complainant's driving services and they complained to management. With regard to his interactions with the coworker, while it was argued that it was ongoing for several years, Complainant lists only several specific instances which on their own were isolated incidents that were not severe or pervasive enough to establish a hostile work environment.
Finally, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has not shown that he was subjected to discrimination and/or harassment. We find that although he clearly disagrees with the Agency findings, he provided no persuasive evidence that his race, national origin, religion, color, age, or prior EEO activity played any role here. Finally, with regard to Complainant's contention that the investigation was not properly conducted, we find the Report of Investigation was adequate. Furthermore, we note that Complainant was given the opportunity to have an administrative hearing, but he declined. Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant subjected to discrimination and/or harassment.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision which found that Complainant did not prove that he was subjected to discrimination and/or a hostile work environment.
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.
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
_8/31/17_________________
Date
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.
2 Complainant also raised additional claims. The claims were dismissed for failure to state a claim. Complainant did not dispute the dismissals on appeal therefore they will not be addressed here.
3 The anti-discrimination statutes the Commission enforces are not general civility codes designed to protect against the "ordinary tribulations" of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Qncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
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