0120130140
09-11-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
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. 0120130140
Agency No. 2003-0702-2011104626
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 12, 2012 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Agency's finding that Complainant did not demonstrate that he was subjected to discrimination and harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Human Resources Specialist, GS-12 at the Agency's Health Revenue Center facility in Topeka, Kansas. On October 17, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to harassment on the basis of age (55) when:
A. On July 17, 2011, he was demoted to his former position as a GS-12, Human Resources Specialist.
B. On July 20, 2011, when the Acting Chief, Employee Relations directed him to relocate from an office to a cubicle.
C. On July 29, 2011, when he was charged with being absent without leave (AWOL).
D. On September 6, 2011, he discovered that his net pay had been changed from GS-13 to GS-12, and that a debt collection of $213.31 was deducted from his wages.
E. He was subjected to a hostile work environment based on age (55), as evident by the following events:
1. In late March or early April 2011, the, Director, Chief Business Office, began to berate and single him out in front of other supervisors. She made statements that he was "the worst of all the supervisors," and routinely stated to him "to get out of her office because she was through with him;"
2. On June 28, 2011, he received notice that he did not successfully complete the supervisory probationary period for the position of GS-0201-13, Supervisory Human Resources Specialist, and effective July 17, 2011, he would be demoted to his former position as a GS-0201-12, Human Resources Specialist;
3. On July 18, 2011, after returning from a conference, he discovered his desk was emptied, his files and working papers were removed, his file cabinet was locked and the key was removed. These actions were directed by the Acting Chief;
4. On July 20, 2011, the Acting Chief directed him to relocate from an office to a cubicle;
5. On July 21, 2011, in the presence of his co-workers, the Acting Chief made the statement, "Sometimes management needs to slap an employee in the face to send a message. Packing up Complainant's desk while he was out of the office was to send a message;"
6. On July 28, 2011, the Acting Chief directed him to search for a file that had been missing for over two years. No other employee had been required to look for the file;
7. On July 29, 2011, he was charged with being absent without leave (AWOL);
8. On August 24, 2011, the Acting Chief called him a coward;
9. On August 25, 2011, during a staff meeting, the Acting Chief blamed him for all of the problems within the department; and
10. On September 6, 2011, he discovered his net pay had been changed from GS-13 to GS-12, and that a debt collection of $213.31 was deducted from his wages. He was never informed of the debt collection.
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant did not demonstrate he was subjected to discrimination and/or a hostile work environment. Complainant was hired as a Senior Human Resources Specialist, GS-12 in April 2009. In October 2010, Complainant was promoted to Supervisory Human Resources Specialist, Chief, Employee and Labor Relations, GS-0201-13. Complainant was required to serve a one-year probationary period in the supervisory position. By April 2011, Complainant's supervisor began criticizing Complainant's performance. On June 28, 2011, Complainant was notified that he had demonstrated supervisory deficiencies which made him unsuitable for continued employment in a supervisory position. Complainant was notified that he would be returned to his former Human Resources Specialist, GS-12, position, effective July 17, 2011. Complainant believed his age was a factor because he once told an employee that he could retire at any time. Complainant filed an administrative grievance regarding his demotion. The decision to demote Complainant was ultimately upheld.
In response to Complainant's allegations of disparate treatment, management articulated the following nondiscriminatory reasons for its actions, namely, that with respect to claim A, Complainant was demoted because he repeatedly demonstrated supervisory deficiencies. Management felt he was not doing a good job and was not completing projects. The record indicates that he was required to meet weekly with his supervisor in order to improve his performance. When his performance did not improve during his probationary period, Complainant was told that he would be demoted to his GS-12 position.
Regarding claim B, Complainant was asked to relocate from his office because he was no longer a supervisor, and as he shared the office with the Acting Chief she needed the office to discuss work issues.
With regard to claim C, the Agency noted that Complainant was mistakenly charged AWOL. Complainant's supervisor indicated that he had verbally told her that he was taking leave but somehow this information was not transferred to the time keeper. The supervisor indicated that as soon as this administrative error was noted, the AWOL was changed to leave.
With regard to claim D, the supervisor explained that Complainant's pay was reduced because he was no longer a supervisor. The supervisor explained that the issue of Complainant's pay was placed in abatement pending the resolution of his appeal of the demotion. Once the matter was settled, payroll should have notified Complainant that retroactive deductions were going to be taken out of his account. The Director indicated that Complainant's age was not a factor with regard to any of these actions. The FAD found that Complainant failed to show that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
With regard to Complainant's allegations that he was subjected to harassment, management noted that the actions complained of by Complainant were work-related actions that may have been unpleasant for Complainant, but they were not personally denigrating or insulting. Specifically, with regard to incidents 1 and 2, the Director indicated that Complainant was told that he was the worst supervisor because he was not completing his assignments and despite attempts at helping Complainant improve his performance he did not do so. As a result, he was demoted during his probationary period. With respect to incidents 3 and 4, the Acting Chief maintained that Complainant was told to move his office because he was no longer a supervisor but maintained that she did not pack up his things while he was out of the office. The Acting Chief believed that, because of the need for privacy, Complainant's presence was interfering with her work and therefore it was imperative that they not share office space.
Incidents 5, 6, 7, 8, 9 and 10
Management explained that the statement about packing up Complainant's desk to send a message was never made. With regard to incident 6, management explained that a search for a file that had been missing for two years was ordered because it was imperative that the file be found. In the most recent search, Complainant and another employee were tasked with conducting a desk to desk search. The file was not located. When it was discovered by management that a complete search had not been performed, another search was planned. Complainant complained that someone of his grade and salary should not have been tasked with this assignment as Human Resource Assistants could have conducted the search as they made far less in salary than he did. Management noted that the assignment of the task had nothing to do with Complainant's age. In fact, Complainant never mentioned that he thought his age was a factor as the only thing mentioned was that the task was below his grade and salary level.
Regarding incident 7, management indicated that an administrative error caused Complainant to be charged with AWOL. Management noted that as soon as it was discovered the leave was changed. Likewise, with respect to Complainant's assertion that he was called a coward, the Director did not specifically recall this matter but indicated that it could have occurred during a conversation where she was chastising him for not sticking up for his workers. Further, with regard to incident 9, management's position was that Complainant was not blamed for all of the problems in the office but was held accountable for his deficiencies.
Finally, the Agency explained that while Complainant should have been notified that wages were going to be deducted from his pay, the action took place because he was demoted from his supervisory position (incident 10).
The FAD found that Complainant presented insufficient evidence to show that he was subjected to verbal insults or intimidating physical conduct. The FAD also found that the incidents that occurred were at best ordinary office interactions that often occur between supervisors and subordinates. Therefore, it was determined that the incidents complained of were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APEAL
Neither Complainant nor the Agency submitted a brief on appeal.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was presented above and Complainant did not show that the reasons were pretext for discrimination. We also find that Complainant has presented no evidence other than his conclusory statement, which suggests that his age was considered with regard to any of the Agency's actions. We find that Complainant has not shown that discriminatory animus was considered with regard to the issues in this case.
Wth regard to Complainant's harassment claim, we note at the outset that with respect to incidents 2, 3, 4, 7 and 10, Complainant's claim of hostile work environment must fail because of the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With regard to incidents 1, 5, 6, 8 and 9, we find no persuasive evidence that the conduct which Complainant characterizes as discriminatory harassment, even if it occurred as alleged, was motivated by unlawful considerations of his age. Nor was the conduct complained of in the instant matter severe or pervasive enough to be considered hostile or abusive by a reasonable person in his position. In fact, these incidents all appear to be common work related interactions. While some may clearly have been seen as rude, abrupt, or perhaps unprofessional, we find no persuasive evidence that Complainant's age played a role.
The Agency's FAD which found that Complainant did not show that he was subjected to discrimination and/or harassment is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants 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
__9/11/15________________
Date
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