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

Equal Employment Opportunity Commission

Sep 25, 2019

0120180544 (E.E.O.C. Sep. 25, 2019)

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

Charlie O.,1
Complainant,

v.

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

Appeal No. 0120180544

Hearing No. 430-2014-00295X

Agency No. 2004-0652-2014100320

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final order.2

ISSUE PRESENTED

The issue presented is whether substantial evidence in the record supports the EEOC
Administrative Judge’s (AJ’s) decision that Complainant did not establish that he was subjected
to disparate treatment and a hostile work environment, as alleged.

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 Following a hearing on the complaint, the AJ issued a decision which advised the Agency to
take final action on the complaint by issuing a final order within forty days. The record does not
contain any evidence that the Agency issued a final order, and Complainant claims on appeal that
he has not received a final order. For that reason, we find the AJ's decision has become the
Agency's final order. See 29 C.F.R. § 1614.110(i).
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Outpatient
Pharmacy Supervisor at the Agency’s Medical Center in Richmond, Virginia. Report of
Investigation (ROI), at 92. The Associate Chief of Pharmacy served as Complainant’s first-level
supervisor (S1). The Chief of Pharmacy was assigned as Complainant’s second-level supervisor
(S2).

On January 22, 2010, S1 held a meeting with Complainant over reports that Complainant was
showing favoritism to a female subordinate (FS1) due to their purported relationship. ROI, at
1033. Therein, S1 expressed to Complainant that his relationship with FS1 was affecting morale
within the department, and he advised Complainant that he should not disappear during his
scheduled tour and should always answer his pages. Id. S1 also asked Complainant not to close
his office door while FS1 was in his office, among other things. Id. Nevertheless, management
chose not to reassign FS1 and Complainant continued serving as her supervisor during this time.

Beginning in 2013, FS1 began to experience several health issues. Hearing Transcript (Hr’g
Trans.), Day 2, at 25. She underwent a double mastectomy and suffered from a damaged nerve in
her arm and hand, among other conditions. Id. FS1 had six surgeries over a six-month period,
and took medical leave for two to three months during the period. Id., at. 26. Upon FS1’s return
to work, Complainant attempted to grant her requests for accommodation by discontinuing her
duties that required dispensing medication. Complainant instead allowed FS1 to perform work
on the computer because of her physical limitations. Complainant, however, reportedly did not
inform management that FS1 requested accommodation or that he had attempted to grant her
requests for accommodation. Hr’g Trans., Day 3, at 20.

Meanwhile, Complainant and a coworker tried to “board” FS1’s position for a promotion to the
GS-13 grade-level. With S1’s and the coworker’s assistance, FS1 submitted a functional
statement to management for a position titled, “Pharmaco-Economic Pharmacist.” Hr’g Trans.,
Day 1, at 110. S2 disapproved of the action, explaining that she “could not promote somebody
to a position that doesn’t exist.” ROI, at 561.

On June 12, 2013, S1 held a meeting with employees, after concerns were raised about why FS1
had 11 weeks of leave entered on the leave calendar. During the meeting, employees reportedly
expressed concerns that Complainant’s management was causing morale problems within the
pharmacy. The next day, on June 13, 2013, S1 and S2 held a separate meeting with Complainant
addressing his reported unequal treatment of staff, the morale issues, and the leave calendar,
among other things. ROI, at 1035-1036. S1 and S2 again raised concerns about Complainant’s
perceived relationship with FS1 and made the decision to remove FS1 from Complainant’s
chain-of-command. Id. FS1 nevertheless continued to request reasonable accommodations for
her conditions through Complainant, and therefore S1 and S2 advised Complainant that all
reasonable accommodation responses must go through management first. Id. at 558.

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On August 8, 2013, according to Complainant, after he went out on leave due to his Lyme
Disease, a Pharmacist said to him, “[W]ord on the street is you have Lyme disease.” Id. at 112.
Complainant believed that S1 disclosed his health condition to other employees, including the
Pharmacist. Id. S1 maintained that he kept Complainant’s medical information confidential, and
the Pharmacist denied making the statement to Complainant about his Lyme Disease. Hr’g
Trans., Day 3, at 83; Hr’g Trans., Day 1, at 190.

Also, according to Complainant, on August 26, 2013, during a meeting, S1 and S2 stated to him,
“You better have our back in this EEO complaint of [FS1’s]” and “If you cannot meet
management’s expectation, you do not need to be a supervisor.” However, both S1 and S2
denied making the statement in that specific manner, but acknowledged they told Complainant
that he needed to support management. ROI, at 562. Complainant also took notes of what was
said during the meeting and made no mention that either S1 or S2 made any statement about
FS1’s EEO complaint or that they said he better have their backs in FS1’s EEO complaint.
Agency’s Prehearing Exhibits, at Issue 8. In Complainant’s notes concerning the meeting he
specifically wrote:

[S2] .... said look around in this room ... there are only supervisors in this room ... my
management team ... [S1’s] management team .... we need to know that you have our
backs and we have you [sic] backs.

Id.

On September 10, 2013, FS1 filed an EEO complaint naming S1, S2, and Complainant as
responsible management officials, alleging that she was denied reasonable accommodations for
her medical conditions and that she was improperly not promoted to the GS-13 grade-level.
Complainant maintained that S2 told him, “If I go down, you go down,” over the telephone in
regard to FS1’s EEO complaint. Hr’g Trans., Day 3, at 187-88. S1 however denied making the
statement. Hr’g Trans., Day 1, at 62.

Thereafter, on September 26, 2013, S1 held a meeting with Complainant, discussing the EEO
complaint filed by FS1. ROI, at 1098. Therein, S1 expressed to Complainant his belief that FS1’s
EEO complaint was the “primary result of [Complainant’s] inability to appropriately
supervise/mentor/direct” FS1. Id. S1 also informed Complainant that he may be subject to
disciplinary action because of his role in the boarding action and his failure to notify
management of the accommodations provided to FS1. Id.

On November 26, 2013, management provided Complainant with a “fully successful” rating on
his yearly performance appraisal, which was lower than in previous years. Weeks later, on
December 16, 2013, Complainant apparently requested that management consider him for an
award, but S1 asked Complainant to nominate himself for an award. Complainant felt, however,
that it was inappropriate for him to self-nominate for an award. Complainant also recommended
FS1 for an award on the very same day, but S2 told Human Resources (HR) that she did not
agree with Complainant’s award request for FS1.
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In December 2013, a subordinate employee completed reports of contact, documenting
interactions she had with Complainant. ROI, at 495. Therein, the subordinate employee reported
that she was yelled at by Complainant and unfairly pulled to other work stations to cover
additional responsibilities. Id. S2 testified that the subordinate employee informed her that she
felt as if Complainant was bullying her. Hr’g Trans., Day 1, at 54. The next month, on January
17, 2014, Complainant learned that management entered a “tort claim” due to a medication error
that occurred on March 2, 2013. On January 21, 2014, a manager informed Complainant that she
could not disclose the names of other staff members who received the tort notification letter. S2
also instructed Complainant, beginning on January 21, 2014, to keep a leave calendar for annual
leave and a separate one for sick leave to prevent a potential medical-confidentiality violation.
Complainant felt that managers treated other employees more favorably than they treated him, as
he was required to submit his work tasks on a daily basis, unlike other supervisors.

On January 22, 2014, HR requested that Complainant provide the essential functions of FS1’s
position. Agency Prehearing Exhibits, at Issue 1. Complainant responded that FS1 could perform
her essential functions with her present accommodations. The next day, on January 23, 2014, the
Supervisor of Labor and Management Employee Relations sent Complainant an email, advising
him that it was the Local Reasonable Accommodation Coordinator’s job to help make the
determination about whether the Agency could accommodate FS1. Id. Later that day, S2
discussed with Complainant that he could be subject to discipline if he did not provide the
information that HR requested regarding the essential functions of FS1’s position.

On September 29, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination and a hostile work environment based on reprisal for prior protected EEO
activity, including, but not limited to, when he was told to run reasonable accommodation
questions through management; employees were removed from under his supervision; S2 stated
to him, "If I go down, you go down”; his medical information was disclosed to staff; he was
threatened with disciplinary action for supporting FS1’s boarding action; duties were removed
from his supervision; he was threatened with disciplinary action after FS1 filed an EEO
complaint; he was treated in an abusive and a disparaging manner during a meeting; he received
a lower performance rating; management stated that he was advocating for FS1 in her EEO
complaint; management showed him three reports of contact filed by an employee; he was
restricted access to the administrative drive; management questioned the scheduling of his staff;
he was required to keep two leave calendars; he was required to send daily assignments to
management; HR asked Complainant for the essential functions of FS1’s position; he was
threatened with disciplinary action and removal on a continuous basis; and he was told he could
no longer answer his employees’ questions. Complainant also alleged that S1 and S2 stated to
him, "You better have my back in this EEO complaint of [FS1]" and "If you cannot meet
management's expectation, you do not need to be a supervisor."

Following 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). Complainant timely requested a hearing.
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The AJ held a three-day hearing on June 6-8, 2017. She issued a decision in the Agency’s favor
on September 29, 2017.

In finding no discrimination, the AJ initially noted that she was adopting the Agency’s analysis
in its Closing Statements in its entirety. In doing so, the AJ specifically observed that
management officials did not know that Complainant had accommodated FS1 in early 2013. The
AJ noted that, once the Agency learned that FS1 was accommodated but needed further
accommodations, the Agency followed the proper procedures to identify reasonable
accommodations for her. The AJ additionally noted that Complainant did not provide requested
documentation to management and simply wanted to provide FS1 with the accommodations she
wanted. The AJ observed that management and subordinates believed that Complainant showed
favoritism and preferential treatment to FS1. The AJ therefore found that management took
actions that affected Complainant’s supervisory role due to this perceived relationship with FS1.
The AJ ultimately found that the Agency articulated legitimate, nondiscriminatory reasons for its
actions, which Complainant did not establish were pretextual.

The AJ found, moreover, that Complainant did not establish a prima facie case of a hostile work
environment based on reprisal or his association with FS1’s disability. The AJ determined that
management’s actions were not based on Complainant’s protected bases, and instead were due to
Complainant’s favoritism and perceived relationship with FS1. The AJ found that management
ultimately lacked confidence in Complainant’s ability to supervise FS1 due to his preferential
treatment towards her. The AJ additionally noted that, while Complainant’s attempts to get a
reasonable accommodation for FS1 were commendable, he failed to follow Agency policies and
procedures in doing so. The AJ also determined that Complainant improperly misinterpreted
statements made in management meetings as a personal assault on him. Based on testimony from
management officials, HR staff, co-workers, and subordinate employees, the AJ found that the
Agency was not motivated by discriminatory or retaliatory animus.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, maintains that he has experienced a pattern of
harassment since he sought to accommodate FS1 for her disabilities. Complainant states that his
efforts to assist FS1 with her accommodations resulted in him being ostracized and subjected to a
hostile work environment by management. Complainant states he was bullied, given extra work,
and demeaned in front of other employees, among other things, due to his support for FS1’s
accommodation. Complainant further states that S2 testified that she concluded that he was
“colluding” with the Union, which was assisting FS1 with her accommodation. Complainant
asserts that, even though he was the supervisor over FS1, he was instructed that every
communication regarding her accommodation must go through S2. Complainant further
contends that he was the only supervisor who was required to submit details of his work for the
day, as S2 admitted that another supervisor was not required to submit her work as Complainant
was. He additionally asserts that all of S2’s emails with him began to carry a disclaimer that none
of their communications could be disclosed. Complainant, however, asserts that the disclaimer
was only used in communications with him and not with any other employees.
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Complainant moreover maintains that his performance appraisal was specifically lowered to the
rating of “fully successful” directly due to his efforts in assisting FS1 with her accommodations.
Complainant also contends that there were ongoing efforts to reassign many duties that were
under his supervision, including two Agency programs.

In response, the Agency asserts that Complainant failed to present any evidence to show that the
Agency’s actions were based on any protected EEO activity. The Agency further asserts that
Complainant failed to show that the alleged conduct was sufficiently severe or pervasive to
constitute an objectively hostile work environment.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility
determination based on the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the testimony or the
testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Disparate Treatment/ Hostile Work Environment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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
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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).

To the extent Complainant claims that he was subjected to disparate treatment, the Commission
finds that substantial evidence in the record supports the Agency’s determination that
Complainant has not proffered any evidence from which a reasonable fact-finder could conclude
that the Agency's explanations for its actions were pretext for discrimination. In so finding, we
conclude that the record supports the AJ’s finding that Complainant did not show that
management took action against him due to his support for FS1’s requests for accommodation.

The Commission further finds substantial evidence in the record to support the AJ’s finding that
Complainant did not show that the Agency was motivated by discriminatory or retaliatory
animus with respect to its alleged conduct against him and, as such, he also did not establish that
he was subjected to a hostile work environment as alleged.

The record specifically supports the AJ’s finding that management took its actions towards
Complainant not due to any protected basis, but due to its concern that Complainant was
showing favoritism towards FS1, had a perceived relationship with her, and was not following
Agency procedures with regard to the reasonable-accommodation process. There is no dispute
that, on January 22, 2010, S1 held a meeting with Complainant over reports that Complainant
was showing favoritism towards FS1 due to their purported relationship. During the meeting, S1
told Complainant that his relationship with FS1 was affecting morale and advised Complainant
not to close his office door while FS1 was in his office. The January 22, 2010, meeting took
place before FS1 had requested accommodation in April 2013, which undercuts any claim by
Complainant that management harbored animus because he assisted FS1 with her
accommodation. The record reflects that several employees expressed concern that
Complainant’s favoritism towards FS1 was affecting morale in the workplace, and management
was concerned that Complainant was not properly following its accommodation procedures with
respect to FS1. The record supports the AJ’s finding that management lost confidence in
Complainant’s ability to supervise, as several employees expressed concern over Complainant’s
management, including a subordinate employee who completed several points of contact,
documenting interactions she had with Complainant.

We also note that Complainant alleged that, on August 26, 2013, S1 and S2 stated to him, “You
better have our back in this EEO complaint of [FS1’s],” and “If you cannot meet management’s
expectation, you do not need to be a supervisor.” Complainant additionally asserted that S2 told
him, “If I go down, you go down,” over the telephone with respect to FS1’s EEO complaint.
However, other than Complainant’s unsupported assertion, there is no corroboration that either
S1 or S2 made such statements to Complainant. There is also no evidence to support
Complainant’s claim that S1 communicated to employees that Complainant had Lyme Disease.

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Moreover, there is no dispute that management issued no formal discipline to Complainant as a
result of his conduct with respect to FS1 or anyone else, and management continued to allow him
to serve in his supervisory capacity. As such, the record supports the AJ’s determination that
Complainant did not show that the Agency’s actions were severe or pervasive enough rise to the
level of a hostile work environment. In so finding, we note that Complainant mostly describes
work assignments, instructions, and admonishments, which are all “common workplace
occurrences” that do not rise to the level of harassment. See Gray v. U.S. Postal Serv., EEOC
Appeal No. 0120091101 (May 13, 2010); Wolf v. U.S. Postal Serv., EEOC Appeal No.
01961559 (July 23, 1998); Long v. Dep’t of Veterans Affairs, EEOC Appeal No. 01950169
(Aug. 14, 1997). Likewise, we have previously determined that micromanagement is a “common
workplace occurrence.” See Gormley v. Dep't of the Interior, EEOC Appeal No. 01973328 (Feb.
18, 2000) (finding no harassment where complainant alleged, among other things, that her
supervisor excessively monitored her work duties and time in and out of the office on a daily
basis, and she was treated more harshly and unprofessionally by other employees).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that substantial evidence in the record supports the AJ’s
finding that Complainant did not show that he was subjected to disparate treatment or a hostile
work environment, as alleged. Therefore, we AFFIRM the Agency’s final order.

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.
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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

September 25, 2019
Date