Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 12, 2015

0120133115 (E.E.O.C. Feb. 12, 2015)

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

Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120133115

Agency No. 2004-0613-2012100238

DECISION
On August 29, 2013, Complainant prematurely filed an appeal from the Agency’s September
10, 2013 final order 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. The Commission deems this appeal as timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Laundry Worker at the medical center in Martinsburg, West
Virginia. He filed an EEO complaint in which he made the following claim, which we
designate as claim (1): Whether Complainant was subjected to a hostile work environment
because of race (Black) when:

A. On October 19, 2011, Complainant was erroneously terminated as a probationary
period employee but reinstated on October 20, 2011;

B. On October 20, 2011, Complainant was issued a proposed reprimand that was mitigated
to a verbal counseling on November 3, 2011; and

C. On November 30, 2011, Complainant’s person and vehicle were subjected to a search
by Agency police.

The Agency accepted and processed this claim exactly as framed above. Investigative Report
(IR) 42-46. 48, 66. At the conclusion of its investigation, the Agency notified Complainant of
his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
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requested a hearing. On November 16, 2012, during discovery, the AJ issued an order
granting Complainant’s request to amend the accepted claims to include the following
allegations, which we designate as claim (2): Whether the Agency retaliated against
Complainant for filing the instant EEO complaint when:

A. On November 30, 2011, December 8, 2011, and August 27, 2012, Complainant was
issued violent incident reports; and

B. On August 28, 2012, a report of conduct was issued that required Complainant to
undergo a fitness for duty examination.

On January 10, 2013, the Agency filed a motion for summary judgment, which the AJ granted
on July 3, 2013. As previously noted, Complainant filed his appeal on August 29, 2013,
before the Agency issued its final order, in which it fully implemented the AJ’s decision
finding no discrimination or reprisal in connection with either claim.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). This is true even if the business judgment of those officials turns out to be incorrect.
See Glass v. United States Postal Serv.

, EEOC Appeal No. 07A50068 (June 15, 2006).
Consequently, in order to warrant a hearing on his claims of race discrimination and reprisal,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether management was motivated by unlawful considerations of his race and previous
EEO activity when it took the actions at issue in his complaint. See 29 C.F.R. § 1614.109(g);
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can
take the form of discriminatory statements or past personal treatment, comparative or statistical
data, unequal application of Agency policy, or deviations from standard procedures without
explanation or justification. See Hovey v. Department of Housing & Urban Development

,
EEOC Appeal No. 01973965, (Aug. 31, 2000).
We begin with the allegation concerning the violent incident reports. For purposes of analysis,
we will merge our discussion of allegation (1)(C) with that of allegation (2)(A), since the
incident that was reported in November 2011 was included in both allegations. While
Complainant alleged that he was issued three violent incident reports, the Agency was unable
to locate any records of a violent incident report dated December 8, 2011, in which
Complainant was identified as the victim or the aggressor. Agency Hearing Exhibit (AHE) 4.

With respect to the incident that took place in November 2011, Complainant was attending a
mediation at which the Labor Relations Representative and other officials were present.
During the course of the meeting, Complainant remarked that he owned a gun and that
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someone was going to get hurt. The Labor Relations Representative interpreted Complainant’s
remark as a threat and called the Agency’s police. The police officers who responded to the
call stated in their affidavits that Complainant consented to a search of his car and his person.
IR 228-30, 289-93, 315-22.

As to the incident that occurred on August 27, 2012, the violent incident report stated that the
Environmental Management Services Chief, Complainant’s third-line supervisor (S3) had
requested a police presence in the laundry work area because she felt that Complainant
represented a threat to the safety of laundry personnel. A memorandum from a threat
assessment team addressed to the medical center’s director and dated October 2, 2012,
indicated that one of the employees had reported that his supervisor was touching him on the
shoulder as he was instructing him, and that Complainant observed this and made threats to the
supervisor. AHE 6.

With regard to the fitness examination [allegation (2)(B)] that took place in August 2012,
memoranda prepared by S3 and the Human Resources Chief stated that they were requesting
the exam because of concerns about Complainant’s mental condition and safety. Complainant
had previously been diagnosed with post-traumatic stress disorder (PTSD), for which he was
taking medication. In her memorandum, S3 noted that Complainant’s condition had worsened
over the past several months, noting that “simple situations seem to send him over the edge.”
S3 also reported that she was receiving complaints from Complainant’s co-workers about
Complainant’s work habits and the hostility of the work environment owing to Complainant’s
presence in the laundry workroom, and that Complainant had broken down during a town hall
meeting on August 14, 2012, and had to be taken to the emergency room. The results of the
examination indicated that Complainant was suffering from an adjustment disorder. AHE 5.

The statements made by the Labor Relations Representative and S3 have been corroborated by
police reports and by affidavits and contemporaneous memoranda from other Agency officials.
While Complainant expressed his belief that the violent incident reports and the fitness
examination were acts of race discrimination and reprisal, he has not presented any sworn
statements from other witnesses or documents which contradict the explanations provided by
the Labor Relations Representative or S3. The Commission has long held that unsupported
assertions are not sufficient evidence of illegal motive. Porter v. Department of the Navy

,
EEOC Petition No. 03800087 (January 14, 1981). We therefore find, as did the AJ, that
Complainant failed to raise a genuine issue of material fact with respect to claims (1)(C) and
(2). We now turn to the remaining incidents comprising claim (1).
To warrant a hearing on his harassment claim, Complainant must present enough evidence to
raise a genuine issue of material fact as to whether, because of his race, he was subjected to
conduct so severe or pervasive that a reasonable person in his position would have found the
conduct to be hostile or abusive. Harris v. F orklift S ystems, Inc., 51 0 U .S. 17, 21 ( 1993);
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only
if Complainant establishes both of these elements does the question of the Agency’s liability
present itself. The termination at the heart of claim (1)(A) was rescinded within twenty-four
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hours of being issued, and the reprimand at the center of claim (1)(B) was reduced to a verbal
counseling. IR 171, 175-76, 189-91, 205-06, 219-22, 243, 302, 304, 307, 340.
Consequently, these incidents were not so severe or pervasive that a reasonable person in his
position would have found the conduct to be hostile or abusive. While these incidents were
understandably upsetting to Complainant, they are not enough to support a claim of
discriminatory harassment.

CONCLUSION
After a careful review of the record, including Complainant's arguments on appeal, we
AFFIRM the Agency’s final order.

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).
0120133115

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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
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

Date
February 12, 2015