Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120100997 (E.E.O.C. Mar. 14, 2013)

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

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120100997

Hearing Nos. 520-2007-00495X & 520-2009-00370X

Agency Nos. 200H-0631-2007101084 & 200H-0631-2009100018

DECISION

On December 23, 2009, Complainant filed an appeal from the Agency’s November 18, 2009
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Safety Officer and
an Occupational Health Manager at the Agency’s work facility in Northampton, Massachusetts.
Complainant initiated contact with an EEO Counselor on January 22, 2007. On March 7,
2007, Complainant filed an EEO complaint. The Agency accepted for investigation a claim of
harassment based on national origin (Iranian). The following incidents were identified:

1. In May 2006, the Manager of Facilities Management (hereinafter referred to as the
Manager) was talking about Complainant and told Complainant that management did
not like him.

2. On May 7, 2006, Complainant did not receive overtime pay when, on his own time and
expense, he drove a sample to a lab in Boston.

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3. Since June 2006, the Manager has been spreading rumors about Complainant’s inability
to perform his duties.

4. On June 2, 2006, Complainant was charged eight hours of AWOL.

5. On June 21, 2006, the Program Management Manager issued a reprimand to
Complainant.

6. Between October 2006 and March 2007, the Manager gave Complainant unfair work
assignments.

7. At the end of October or the first part of November 2006, the Manager told
Complainant that he should start looking for another job.

8. On December 18, 2006, the Manager told Complainant he better drop his Supreme
Court case or “They will destroy you.” After Complainant told the Manager that he
had already lost his marriage and quality time with his parents and children, the
Manager told him he would lose a lot more.

9. In the beginning of January 2006, a Human Resources official informed Complainant
that he was not qualified for the position of Assistant Chief Engineering, but later that
day, the official informed Complainant that he was qualified after Complainant
contacted her.

10. On January 2, 2007, Complainant was forced to move from his office to a cubicle that
was closer to the Manager and did not have a lock.

11. Beginning on January 2, 2007, an employee sitting in front of Complainant was
eavesdropping on his confidential calls and spying on him and reporting information to
the Manager.

12. Between January 15 and February 15, 2007, in response to an e-mail from
Complainant, a coworker told Complainant “Don’t you ever send me an e-mail like that
again.”

13. On January 19, 2007, the Manager threatened Complainant with disciplinary action.

14. On January 22, 2007, the Manager temporarily removed Complainant’s supervisory
authority and then returned it to him.

15. In the middle of February 2007, Complainant volunteered for a VISN project but he
was not selected. Complainant contends that his supervisor must have given him a bad
recommendation. Complainant states that he was not contacted to participate in the
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project, which would have provided him with training to be promoted from his current
position.

16. In the middle of February 2007, Complainant volunteered for another VISN project
involving asbestos and lead paint removal, which were areas within Complainant’s
expertise, but he was not selected.

Complainant added the basis of disability for the remaining incidents:

17. Between March 23. 2007 and April 16, 2007, Complainant’s request for advance sick
leave was denied and he was charged leave without pay.

18. As of April 24, 2007, Complainant has not been approved for the Voluntary Leave
Transfer program.

19. On May 2, 2007, Complainant was issued a reprimand.

At the conclusion of the investigation of the first complaint, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant requested a hearing. Complainant filed a
second complaint (Agency No. 200H-0631-2009100018) on November 22, 2008, while the
first complaint was pending before the AJ. The second complaint was investigated and
Complainant requested a hearing. The complaints were consolidated for hearing.1

In the
second complaint, Complainant claimed discrimination on the bases of race/national origin
(Middle Eastern, Iranian), color (brown), sex (male), religion (Baha’i), age (over 40),
disability, and in reprisal for prior protected activity with regard to the following matters:
1. On October 27, 2008, the Manager issued Complainant a one day suspension.

2. In January 2009, the Agency intercepted Complainant’s monthly social security check.

3. By letter dated February 17, 2009, Human Resources advised Complainant that if he
did not respond to their letter by March 16, 2009, they would deem his failure to
respond as notice that he was not making a request for reasonable accommodation.

4. By letter of February 17, 2009, the Agency notified Complainant that he was no longer
eligible for health care benefits as of March 18, 2009.

5. On April 7, 2009, Complainant was denied access to and assistance from the Employee
Assistance Program.

1 The Agency dismissed many claims for procedural defects, and Complainant has not
challenged their dismissal on appeal. Therefore, we shall not further review these claims.

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6. Since July 27, 2007, Complainant has been denied work-related and non-work-related
activities and meetings and has been given the silent treatment.

7. Since July 27, 2007, to the present, Complainant was forced into a leave without pay
status.

8. Since July 27, 2007, Complainant was denied access to or assistance by the Employee
Assistance Program, although he repeatedly requested it.

9. Since July 27, 2007, management denied Complainant’s requests for assistance to
review information related to Workers’ Compensation, disability retirement, and
unemployment.

10. Since July 27, 2008, Human Resources inflicted unreasonable hardship on
Complainant by requiring him to submit various unnecessary documents on a monthly
basis.

11. Since July 27, 2008, Complainant was a given a choice between returning to work,
changing his social security disability to disability retirement, or face the consequences
of the abolishment of his position.

12. In August 2008, the Agency intercepted Complainant’s monthly social security check.

13. During August 2008, Complainant learned that other employees in the department
were allowed to be reassigned to other positions and supervisors within his department,
but he was not allowed.

14. In September and October 2008, Human Resources threatened to cancel Complainant’s
medical insurance, and when he sought to clarify the status of his medical insurance, no
response was provided.

15. On or about September 23, 2008, the Manager issued Complainant a proposed
suspension.

16. In September 2008, Complainant was denied job training.

17. In September 2008, Complainant was denied a position for which he applied.

18. On or about November 18, 2008, Complainant was denied a step increase.

19. From December 2008 until February 19, 2009, Complainant was not advised that there
would be a new EEO Program Manager despite e-mails of inquiry to management that
were copied to the EEO Program Manager.
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20. Despite advising Complainant that he would be reimbursed on January 23, 2009, for
$547.20 that was collected from his pay, Complainant still has not received that money.

Multiple extensions of time were granted to Complainant so that he could obtain adequate legal
representation, but he was unable to do so. The AJ thus denied the hearing request due to
Complainant’s inability to proceed in the administrative processing and adjudication of his
complaints. The AJ remanded the complaint to the Agency, and the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged with regard to each complaint. With regard to Complainant’s claim
of harassment, the Agency determined as to both complaints that Complainant failed to show
that the alleged harassment was sufficiently severe or pervasive.

The Agency explained that the move from his office to a cubicle was initially Complainant’s
idea. The Manager noted that none of the employees who moved to cubicles have any doors
or locks. The Manager stated that he removed Complainant’s supervisory authority in order to
relieve Complainant’s burden and stress. According to the Agency, Human Resources advised
the Manager that his action was improper and Complainant’s supervisory authority was
reinstated. The Manager stated that he denied Complainant advance sick leave because
Complainant did not know when he would return to work and he thus believed Complainant
was not qualified for advance sick leave. Subsequently, Human Resources determined that
sick leave could be advanced and Complainant received 240 hours of advance sick leave.

The Agency stated that Complainant’s request for the Voluntary Leave Program was not
initially approved because he failed to provide necessary medical documentation.
Complainant’s request was approved after such information was submitted. The Manager
asserted that he issued a reprimand to Complainant because he shattered a glass table top that
struck another employee who required medical attention. The Agency determined that
Complainant failed to prove by a preponderance of the evidence that the Agency’s stated
reasons were a pretext for discrimination.

With respect to the second complaint, the Agency stated that Complainant was issued a
proposed suspension followed by a one day suspension because he had exhausted all annual
and sick leave while on an extended absence from work and he failed to properly request leave
without pay. The Agency further explained that Complainant was on leave without pay and he
was responsible for making payments for his health care premium which he failed to do.
According to the Agency, a federal collection organization intercepted Complainant’s checks
for moneys owed for health care premiums. The Agency stated that it attempted to reimburse
Complainant, but his bank account was closed. The Agency stated that it subsequently
deposited $547.20 in Complainant’s new bank account.

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The Agency explained that as of May 4, 2009, Complainant had not responded to its letter
dated February 17, 2009, advising him of his federal health care options. The Agency noted
that Complainant had not indicated when he would return to work. Further, the Agency stated
that OPM regulations require an employee’s health insurance enrollment terminate on the last
day of the pay period that includes the 365th day of continuous leave without pay status. The
Agency asserted that although Complainant was notified of the termination of his health
insurance and the options available to him, he did not contact the Human Resources Office for
guidance and assistance.

The Agency also explained that Complainant was not denied access to the Employee Assistance
Program. The Agency stated that Complainant received multiple referrals to the Employee
Assistance Program and that he has been in that program since 2007. The Agency further
stated that Complainant was provided with Employee Assistance Program contact information
in 2009.

The Agency stated that it was unaware of Complainant being denied job training. The Agency
pointed out that Complainant could not be offered job training because he had been on leave
without pay for two years. The Agency asserted that it had no knowledge of Complainant’s
claim that he was denied a position he had sought. The Agency explained that Complainant
was not denied a within-grade increase, but due to him being on leave without pay, the step
increase did not take effect. The Agency determined that it provided legitimate,
nondiscriminatory reasons for its actions. The Agency further determined that Complainant
failed to establish by a preponderance of the evidence that its reasons are pretextual and that
management’s actions were motivated by discriminatory animus toward him. Thereafter,
Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

Agency No. 200H-0631-2007101084

To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or she 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 the Complainant’s statutorily protected class; and (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, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe and 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 (Mar. 8, 1994).

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We have previously stated the Agency’s explanation as to many of the alleged incidents. With
respect to the remaining incidents, the Manager asserted that he did not know where
Complainant got the idea that management did not like him. The Manager acknowledged that
because Complainant was overly optimistic as to how things were going, management lacked
confidence in his judgment. The Quality Manager stated that Complainant was not entitled to
overtime pay because the hours of work at issue were worked only because Complainant
disobeyed an instruction. The Manager denied that he was spreading rumors about
Complainant’s inability to perform his duties. The Manager stated that maybe Complainant
heard that someone did not like how he was doing things, but he was not the source. The
Quality Manager stated that he issued Complainant the AWOL because Complainant did not
have an annual leave balance and he had just completed a period of leave without pay. The
Quality Manager also stated that he issued the reprimand based on the aforementioned failure
to follow a direct order and the AWOL. In terms of the alleged unfair work assignments, the
Manager stated that he assigned Complainant work that was commensurate with his duty
position. The Manager also asserted that Complainant appeared to be having difficulty
focusing and his job duties seemed to be overwhelming him and that is why he asked
Complainant if there was something else that he wanted to do. The Quality Manager stated
that he told Complainant that he was going to destroy himself if he kept pushing a case that
could not be won. According to the Quality Manager, he was speaking to Complainant as a
friend because he was concerned about him, noting that Complainant was involved in a costly
lawsuit, was caring for disabled parents, was recently divorced and had limited visitation rights
with his children.

A Human Resources official acknowledged that she had initially rated Complainant as not
qualified for the position at issue. However, she explained that she changed her mind after
Complainant contacted her and informed her that he had previously been rated qualified for the
position, and so she looked further into the matter. The employee who allegedly eavesdropped
on Complainant denied doing so and he denied receiving instructions from management to
report on Complainant’s actions. Finally, we note that Complainant did not specify the nature
of the alleged inappropriate e-mail and the alleged offending coworker was unaware of the
nature of the matter.

With respect to the threat of disciplinary action, the Manager explained that Complainant had
erred though in moving a glass top that fell and injured a coworker rather than enlisting the
help of the maintenance staff. The Manager maintained that Complainant could not be spared
for the VISN project since they were in the middle of several other projects. Upon review of
the arguments and evidence presented by Complainant during the investigation of this
complaint, we find that Complainant has not established that the Agency’s reasons were pretext
intended to hide discriminatory motivation either in terms of disparate treatment for each
incident or in terms of a hostile work environment.

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Agency No. 200H-0631-200910018

We have previously stated the Agency’s explanations for most of the incidents alleged in this
second complaint. We observe that a Human Resources official states that Complainant has
been informed about activities and meetings as the Human Resources Office has provided all
the information that he requested. The Agency denied that Complainant was forced into a
leave without pay status. The Agency noted that Complainant was in a leave without pay
status due to the fact he exhausted all his leave, including advance leave and the leave transfer
program.

Complainant claimed that management would not assist him in reviewing information related to
Workers’ Compensation, disability retirement, and unemployment. The Agency stated that
this accusation is not accurate as an official noted that she had personally provided
Complainant with information related to Workers’ Compensation and disability retirement.
Complainant claimed that Human Resources inflicted unreasonable hardship on him by
requiring that he submit unnecessary documentation on a monthly basis. A Human Resources
official stated that it is the responsibility of the employee to provide sufficient medical
documentation for management to grant leave. Complainant claimed that he was told to either
return to work, change his social security disability to disability retirement, or face the
consequences of the abolishment of his position. A Human Resources official denied that she
informed Complainant that his position would be abolished. She instead asserted that she
provided Complainant with different options he could look into since he had been providing
documentation indicating he could not return to work due to his medical condition.

Complainant claimed that unlike him, other employees were allowed to be reassigned to other
positions and supervisors within his department. A Human Resources official explained that
the Safety Service was transferred from the Facilities Management Office to a supervisor under
the Director’s Office. According to this official, an error occurred when, unlike the other
employees in the Safety Service, Complainant was not reassigned. The official stated that once
she became aware of this oversight, she corrected it and had Complainant assigned to the
appropriate organization. Complainant claimed that over a two-month period, he was not
advised that there would be a new EEO Program Manager. A Human Resources official
commented that it is not customary for management to notify employees when a person retires.
This official noted that she informed Complainant of the new EEO Program Manager when she
learned that Complainant had been e-mailing the former EEO Program Manager.

We find that the Agency has articulated legitimate, nondiscriminatory reasons for each of the
actions at issue. Upon review of the arguments and evidence presented by Complainant during
the investigation of this complaint, we find that Complainant has not established that these
reasons were pretext intended to hide discriminatory motivation either in the context of
disparate treatment for each incident or for a claim of a hostile work environment.

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CONCLUSION

The Agency’s determination of no discrimination in its final decision with regard to each of the
complaints was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
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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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 14, 2013
Date