0120122844
09-09-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122844
Agency No. 200P-0504-2011101332
DECISION
On June 30, 2012, Complainant filed an appeal from the Agency's May 14, 2012, final decision 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 the appeal timely1 and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant had not established that he had been subjected to discrimination based on reprisal, as he alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Warehouse Supervisor, WS-5, at the Agency's VA Medical Center in Amarillo, Texas.
On February 15, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when he was subjected to a hostile work environment consisting of the following allegations:
1. on January 3, 2011, the Chief of Acquisition & Material Management (AMM)/Logistics, Complainant's direct supervisor (S1), accused him of misappropriating government property by giving a vendor more pallets than it had purchased, also accusing him of accepting cash and not relinquishing it to S1;
2. on January 3, 2011, S1 attempted to force him to control supply distribution of Office of Information Technology (OIT) equipment;
3. on January 3, 2011, S1 had Complainant arrested and stated that Complainant: (1) had threatened many of the vendors by using the "N" word, and (2) said that he has a bullet with S1's name on it;
4. on January 5, 2011, the Freedom of Information Act (FOIA) Officer (and S1's friend), delayed as much as possible giving him FOIA information to delay filing his complaints;
5. on January 10, 2011, S1 instructed the Supply Technician, not to tag any property, leaving Complainant to answer to the "services" regarding why they were not able to retrieve their property;
6. on January 12, 2011, S1 ordered him to create space in the outside garage unit to generate animosity and friction between him, his co-workers, and "services";
7. on January 14, 2011, he was directed to attend a tribunal where he was accused of many "wrong doings";
8. on January 14, 2011, he overheard the Warehouseman (1) inform the Assistant Chief of AMM, that he had left the warehouse so they could "set him up" for failing to do his job and (2) state that "[the Warehouseman] pulled job orders, and [Complainant] was not doing his job";
9. on January 26, 2011 , he argued with S1 regarding the close-out of an employee's performance, and S1 intentionally gave him wrong directions and a short deadline, "setting him up" for failure;
10. on January 31, 2011, S1 made derogatory comments to Complainant, referring to him as "the good, bad, and ugly" and telling him that he "loves to create hate and discontent";
11. on February 1, 2011, S1 accused him of not delivering "Script Pro" to the pharmacy;
12. on February 7, 2011, S1 accused him of not keeping the rear docks clean and had several departments drop off trash to make it look like he was not doing his job; and
13. on February 8, 2011, S1 accused him of shutting down the warehouse and neglecting his duties.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant had filed a previous EEO complaint on January 3, 2011, and that S1 was aware that Complainant was involved in the EEO process as early as November 2010. It found that the majority of Complainant's allegations were job-related. The Agency characterized the incidents as such: various accusations or allegations of inappropriate conduct by Complainant (incidents 1, 3, 7, 8, 11, 12, and 13); attempting to force him to control supply distribution of OIT equipment (incident 2); instructing the Supply Technician not to tag any property, leaving Complainant accountable for the consequences (incident 5); ordering him to create space in the outside garage unit (incident 6); and intentionally giving him erroneous directions in connection with the close-out of an employee's performance (incident 9). The Agency found that Complainant's allegations consisted largely of his dissatisfaction with management's job-related decisions, or interpersonal frictions commonly experienced within the workplace, as opposed to conduct that could reasonably be perceived as denigrating or insulting. It found that the remaining two incidents, "delaying" Complainant's request for information under the FOIA (incident 4) and making "derogatory" comments to him, and referring to him as "the good, bad, and ugly" and telling him that he "loves to create hate and discontent" (incident 10), "cannot reasonably be perceived as threatening or intimidating or showing hostility or an aversion toward an individual or group, given the nature and context of these incidents."
The Agency then found that Complainant had not established that the Agency's conduct was linked to his prior EEO activity. It found that the Agency had provided a legitimate reason or explanation, unrelated to Complainant's prior EEO activity, for each incident, which Complainant had not shown to be unworthy of belief. Finally it concluded that Complainant had not shown the Agency's actions to be sufficiently severe or pervasive such that a legally hostile work environment existed, as "most of it falls within the normal range of events that might reasonably be expected to occur in a typical workplace under the circumstances."
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that he was not able to fully participate in the EEO investigation and that he should be permitted to request a hearing before an AJ at this time. Complainant claimed that the EEO investigator did not make accommodations for him in the process of attempting to obtain his affidavit during the investigation.
The Agency submitted a brief in opposition to Complainant's appeal in which it urged the Commission to affirm its final Agency decision. It noted that Complainant's brief consisted primarily of a spin-off complaint about the processing of his complaint.
STANDARD OF REVIEW
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We first address Complainant's allegation that the EEO Investigator did not accommodate him during the course of the EEO investigation. A review of the record shows that the Investigator offered to obtain Complainant's statement either through a written affidavit or by telephone interview. Complainant did not respond in the time frame given and did not indicate in his appeal brief what further accommodation he desired in order to participate in the investigation. We find that the Agency acted properly in the course of investigating Complainant's complaint.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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; (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 or 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 at 6 (Mar. 8, 1994).
We find that Complainant satisfies the first prong of a showing of a claim of hostile work environment and harassment in that he belongs to the claimed statutorily protected class, as he has established that he engaged in prior protected EEO activity. Complainant was subjected to Agency actions which he found to be unwelcome. We find however, that Complainant has not established that the Agency took each of the actions alleged in Complainant's complaint in reprisal for his protected EEO activity. Nor has Complainant established that the actions complained of were sufficiently severe or pervasive such that a hostile work environment existed. Complainant has not shown the Agency's version of the events was unworthy of credence. Therefore, we find that Complainant has not established a claim of harassment based on his prior protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination that Complainant was not discriminated against as alleged.
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 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
September 9, 2014
Date
1 Complainant was no longer at his address of record when the Agency first served the final Agency decision, and it was obliged to resend the decision. Complainant received the final Agency decision on June 22, 2012.
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0120122844
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122844