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

Equal Employment Opportunity Commission

Feb 27, 2013

0120111469 (E.E.O.C. Feb. 27, 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. 0120111469

Hearing No. 510-2009-00244X

Agency No. 200I-0317-200810400

DECISION

On January 11, 2011, Complainant filed an appeal from the Agency’s December 15, 2010,
final order 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. 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial Clerk at
the Agency’s facility in St. Petersburg, FL. On July 21, 2008, Complainant filed an EEO
complaint alleging that the Agency discriminated against him and subjected him to a hostile
work environment on the bases of his disability (vision impairment, cardiovascular
impairment), age (58), and in reprisal for prior protected EEO activity when:

1. from March 6, 2008, to the present, management has denied his request for the
reasonable accommodation of a larger computer monitor;
2. in April 2008, his former supervisor (S1) did not specifically tell Complainant how
to get a performance rating higher than ‘fully successful’;
3. on July 7, 2008, Complainant was not selected for the position of Accounts
Receivable Technician;
4. on July 9, 2008 and ongoing, Complainant was excluded from staff meetings;
5. on July 9, 2008 and ongoing, management isolated Complainant and kept him out
of mainstream operations;
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6. on July 9, 2008 and ongoing, he was the only employee required to process 6698s1
7. on July 9, 2008 and ongoing, new employees were told by management officials not
to associate with Complainant;
;
8. on July 9, 2008 and ongoing, management has not informed him of changes in
policies and procedures in a timely manner;
9. on July 9, 2008 and ongoing, Complainant’s work assignments have not been given
to him in a timely manner;
10. on August 5, 2008, his current supervisor (S2) asked Complainant to bring him
documents while Complainant was busy with other tasks; and
11. on August 6, 2008, S2 gave Complainant verbal counseling for insubordination.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ found that, after
viewing the evidence in a light most favorable to Complainant, a decision without a hearing
was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a
decision without a hearing on November 29, 2010, finding no discrimination. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged. On appeal, Complainant reiterates
his contention that he was subjected to unlawful age discrimination and reprisal when he was
not selected for the position at issue, but does not address any of the other claims in his
complaint.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from an Agency 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case. If a case can only be resolved by weighing conflicting evidence, it is

1 The record does not contain any explanation of the exact nature of the 6698 forms.
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not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. Turning first to the issue of
alleged denial of a reasonable accommodation, under the Commission’s regulations, an Agency
is required to make reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the Agency can show that accommodation would
cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). We shall assume without
deciding that Complainant is an individual with a disability. Here, we find that Complainant
has not shown that the Agency wrongfully denied him a reasonable accommodation.
Specifically, the record reflects that Complainant provided management with medical
documentation stating that he needed a 20 inch monitor, at which point the monitor was
provided to him. As such, we find that the Agency did not violate the Rehabilitation Act.

Next, with respect to Complainant’s non-selection for the position of Accounts Receivable
Technician, to prevail in a disparate treatment claim such as this, 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. Co. 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); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here, we concur with the AJ’s determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, on April 30, 2008, Complainant applied
for one of two advertised vacancies for the position of Accounts Receivable Technician. The
record shows that candidates for the positions were scored on their applications and interview
responses by a three-member review panel. The record further shows that the candidates with
the two highest aggregate scores were selected for the vacant positions, and that Complainant
received the third highest score. We also note that one of the selectees was older than
Complainant. We find that the Agency has articulated legitimate, nondiscriminatory reasons
for Complainant’s nonselection, namely that many of the statements in his application, and his
answers to interview questions, were overly broad and that he failed to provide the required
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specific examples. Accordingly, we find that Complainant failed to show he was subjected to
unlawful age, disability, or reprisal discrimination with respect to his nonselection.

Further, with respect to Complainant’s supervisor giving him a verbal counseling for
insubordination, the record shows that this counseling was in response to the events set out in
claim (10). Specifically, S2 instructed Complainant to complete a task and Complainant stated
that he would not. As such, S2 gave Complainant a verbal counseling the following day in
response to his refusal to comply with the instruction. We find that Complainant has not
proffered any evidence to show that S2’s actions were motivated by discriminatory or
retaliatory animus. In so finding, we note that Complainant acknowledges that he did not
follow S2’s directions on August 5, 2008.

Finally, with respect to the remaining claims, to the extent that Complainant is alleging that the
Agency’s conduct constituted discriminatory harassment, the harassment of an employee that
would not occur but for the employee's race, color, sex, national origin, age, disability,
religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v.
Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is
hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);
Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct that is not severe or
pervasive enough to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510
U.S. at 22 (1993).

Here, we find that Complainant’s claims do not constitute discriminatory harassment. In so
finding, we note that Complainant failed to provide any specific examples of how he was
isolated or kept out of mainstream operations. Nor did he identify any specific meetings he was
excluded from. We find that even taking the remaining claims as true, Complainant has not
adduced evidence that he was subjected to conduct sufficiently severe or pervasive to create a
hostile work environment, or that the Agency's actions were unlawfully motivated by his
protected classes. Accordingly, Complainant has not shown that he was subjected to a
discriminatory hostile work environment.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

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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
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
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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

February 27, 2013
Date