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

Equal Employment Opportunity Commission

Mar 11, 2015

0120123113 (E.E.O.C. Mar. 11, 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. 0120123113

Hearing No. 570-2010-00165X

Agency No. 200400042009101798

DECISION
Complainant filed an appeal from the Agency’s July 10, 2012 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.
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 Program Analyst
at the Agency’s Headquarters facility in Washington, District of Columbia. The record shows
that Complainant was appointed to an administrative detail at the Veterans Affairs Acquisition
Academy in Frederick, Maryland, in late January 2009. On April 15, 2009, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on the bases of race
(African-American), age (60), and in reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:

1. In January of 2009, Complainant was required to perform manual labor (janitorial
tasks) while on an administrative detail.

2. From January 26, 2009 through February 13, 2009, an Agency official attempted to
solicit negative information from Complainant regarding Complainant's supervisor.

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3. On February 13, 2009, Complainant was denied the use of a government cell phone to
conduct official business, having to use his personal phone.

4. On February 13, 2009, Complainant was denied leave approval to attend a medical
appointment.

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 requested a hearing and the AJ held a hearing on
August 22, 2011, and issued a decision on June 13, 2012.

In his Decision, the AJ found the evidence did not establish that Complainant was assigned to
janitorial duties during his detail as alleged. The AJ considered Complainant’s evidence that
he moved boxes and set up classrooms at the Academy. But the AJ found that the Agency had
a contract cleaning service and nothing in the record indicated that Complainant was tasked by
S2, with what could be considered janitorial tasks. The AJ found that S2, Complainant’s
second level supervisor during the time of the identified 13-day detail, never instructed
Complainant to perform janitorial functions or any other tasks. The AJ noted that S1 was
Complainant’s immediate supervisor and the sole Agency official responsible for assigning
Complainant work. The AJ found no evidence that S1 assigned work to Complainant based on
his membership in the identified protected groups.

The AJ found that S2, whom Complainant identified as the discriminating official, was
unaware of Complainant’s prior protected activity and accordingly, Complainant’s complaint
insofar as it is based on reprisal, failed to establish a prima facie case of reprisal
discrimination.

The AJ found Complainant did not present evidence that more likely than not S2 sought to
collect negative information about S1 from Complainant during the detail. To the contrary, the
AJ found the evidence established that S2’s communication with Complainant during his detail
was brief. The AJ found the evidence did not corroborate Complainant’s claim that S2 sought
confirmation of S1’s conduct or lack of professionalism from Complainant.

With respect to Complainant’s claim that he was denied the use of a government telephone to
perform his duties and instead was forced to use his personal cellular phone, the AJ found that
S1, not S2, was responsible for responding to any requests from Complainant for tools that
Complainant needed to do his official duties. The AJ found the evidence showed that until
Complainant departed from his detail assignment, S2 was not aware that Complainant did not
have the equipment he needed. The AJ found the evidence indicated that S1 did request a
phone for Complainant, but that the request met with processing issues because Complainant
was on a detail assignment. Nothing in the evidence, the AJ found, indicated that
Complainant’s race, age, or prior EEO activity impacted the processing of Complainant’s
request for a phone. Additionally, the AJ found the evidence indicated that Complainant chose
to use his own cell phone, and that no one at the Agency forced him to do so.
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The AJ further found that with respect to Complainant’s claim that he was denied sick leave as
described in his complaint, the AJ found that as his immediate supervisor, S1 was responsible
for responding to Complainant’s leave requests. The AJ found the evidence did not support
Complainant’s claim that S2 denied his request as described in his complaint. On the contrary,
the AJ found that S2 instructed Complainant that his sick leave request needed to be approved
by S1. The AJ found that Complainant did not show that his request was denied by anyone;
only that on February 13, 2009, S1 was not on duty. The AJ noted Complainant did not
explain his reasons for failing to request sick leave in advance from S1.

With respect to Complainant’s overall claim of harassment, the AJ found that the evidence
presented by Complainant was inadequate to show that he was subjected to harassment on any
protected basis. The AJ found the incidents described in Complainant’s complaint were neither
frequent nor severe and did not rise to the level of harassment. Additionally, the AJ noted that
Complainant did not present evidence that more likely than not the Agency’s reasons for its
actions were a pretext to mask 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 states that the AJ erred in failing to approve Complainant’s witness,
W1, who would have testified regarding S2’s treatment of Complainant and contributed
evidence of S2’s prejudice against older employees. Complainant also states that the evidence
does not support the AJ’s determinations that rely on the credibility of S2. Complainant
requests that the Commission reverse the Agency’s Final Order and find that Complainant was
subjected to discrimination as alleged.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
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based on their 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 (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).
The prima facie inquiry may be dispensed with in this case, however, since 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).
As a preliminary matter, regarding the AJ’s denial of testimony from W1, we note that W1’s
affidavit does not reveal that he has any direct knowledge of S2’s request that Complainant
provide negative feedback regarding S1’s conduct or would have added any evidence showing
discrimination. Accordingly, we find that W1’s absence from the hearing was, at most,
harmless error.

In the instant case, we find substantial evidence supports the AJ’s Decision. We concur with
the AJ that Complainant did not present evidence that S2 was aware of Complainant’s prior
EEO activity. We find, as did the AJ, that Complainant had left the Academy before S2 was
alerted to the instant complaint and that none of the incidents described in Complainant’s
complaint occurred after S2 was aware of Complainant’s protected activity. Accordingly, we
find that Complainant did not establish a prima facie case of reprisal discrimination with
respect to any claim or his overall claim of harassment. Even if Complainant had established a
prima facie case of retaliation, we still find that Complainant failed show any of the alleged
incidents in the complaint were motivated by retaliation.

Regarding Complainant’s claim that he was assigned to janitorial duties, our review of the
record shows that the parties do not dispute that Complainant and S1 cleaned up after class
activities and that Complainant considered those tasks to be janitorial. We consider, as did the
AJ, that the Agency employs a contract janitorial service and that Complainant and S1 did not
have access to the cleaning supplies used by the commercial janitorial service and Complainant
did not clean the restrooms. More importantly, we concur with the AJ that Complainant did
not establish that S2 assigned specific tasks to Complainant during his 13-business-day detail to
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the Academy or that Complainant was so tasked (by anyone) to clean up after classes based on
his race, age, or in reprisal for prior protected activity.

With respect to Complainant’s claim that he was asked by S2 to provide negative information
about S1, we decline to disturb the AJ’s conclusion that the evidence regarding this conduct
was inadequate to show discrimination. We find the evidence consists of Complainant’s own
statements that S2 solicited negative information about S1, and S1’s confirmation that
Complainant reported the solicitation to S1. We consider Complainant’s position that S2’s
recollection regarding her statements about S1 was inconsistent with documentary evidence
indicating S2 was critical of S1’s performance and professionalism. We do not find that S2’s
credibility is necessary to find that this claim fails. We find that even if Complainant’s
allegations are true, this conduct, either alone, or in the context of Complainant’s overall claim
of harassment does not, as the AJ found, rise to the level of harassment. Clearly, the claim
does not allege a discrete adverse action and there is no indication that the solicitation was
motivated by discrimination against Complainant.

Regarding Complainant’s claim that he was denied the use of a government phone for his
official duties, we concur with the AJ that it was S1’s responsibility to provide Complainant
with the resources he needed to accomplish his assigned tasks. We find nothing in the record,
and Complainant does not allege, that S1 failed to provide a phone for him because of his race,
age, or prior EEO activity. There is no evidence of discrimination regarding this incident.

We further find substantial evidence supports the AJ’s conclusion that S1 was the Agency
official responsible for approving Complainant’s leave requests. We find the evidence shows
that in S1’s absence, Complainant did ask S2 to approve his leave. However, S2 did not
respond with either approval or denial. Rather, as the AJ found, S2 instructed Complainant to
seek approval from S1. We find that Complainant did not show that more likely than not S2
denied his request for sick leave because of his race, age, or prior EEO activity.

We find that the AJ’s finding of no discrimination is supported by substantial evidence.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

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:

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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
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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
March 11, 2015