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

Equal Employment Opportunity Commission

Mar 11, 2015

0120123062 (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. 0120123062

Agency No. 2004-0512-2011104022

DECISION
On July 30, 2012, Complainant filed an appeal from the Agency’s July 6, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal 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 decision.

BACKGROUND
Complainant worked as a Housekeeping Aid at the Agency’s medical center in Baltimore,
Maryland. His position was located within Environmental Management Services (EMS). On
September 19, 2011, Complainant filed an EEO complaint in which he alleged that numerous
Agency officials discriminated against him on the bases of race (African-American) and
disability by subjecting him to a hostile work environment between April and September of
2011. He identified seven incidents that comprise his claim.

Complainant initially alleged that, on unspecified dates during April of 2011, a Labor Relations
Specialist (LRS) yelled at him in a loud an inappropriate manner regarding his performance of
his cleaning duties. The LRS averred that as Complainant was leaving the area, she asked him
to come back and clean her office. Complainant conceded that the LRS did not yell at him, but
that she spoke to him in a voice that was louder than it needed to be. Investigative Report (IR)
180-181.

Complainant next alleged that, on June 24, 2011, his immediate supervisor in EMS (S1) and
the Chief of the Prosthetics Unit required him to perform additional cleaning duties that
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prevented him from taking breaks in accordance with his reasonable accommodation
requirements. S1 responded that at the behest of the Prosthetics Chief, she inspected the
Prosthetics Unit and found that it had not been cleaned. S1 simply told Complainant to the job
that he was expected to do and clean the area. S1 also averred that Complainant never made
any statements about his disability or suggestions that he could not perform his duties because
of his disability. Complainant refused to follow S1’s direction and walked out of the area. IR
181, 259-60.

Complainant alleged that on July 6, 2011, the LRS prevented Complainant from emptying a
trash can and spoke to him in an inappropriate manner. The LRS could not recall the incident
but denied that there was a hostile confrontation with Complainant. When asked how the
LRS’s conduct was inappropriate, Complainant replied that she had come out of her office and
talked in a loud tone of voice about her area not being cleaned. IR 182.

In a memorandum dated July 8, 2011, the EMS Chief notified Complainant that he was
proposing to reprimand him on charges of disrespectful conduct and failure to follow
instructions for his conduct in the incident that occurred on June 24th

. The proposed reprimand
was upheld on August 2, 2011. IR 182, 263-64.
On September 2, 2011, the Library Services Chief (LSC) reported Complainant to S1 for
utilizing a computer and fax machine during duty hours. According to the report of contact
documenting the incident, only library personnel were authorized to use the computer and fax
machine. The report of contact also stated that the library had not been cleaned, and that when
the LSC and the Library Services Assistant (LSA) asked him to do so, he told them that he was
off duty. IR 182-83, 261.

Finally, Complainant alleged that on September 19, 2011, two EEO specialists harassed him.
According to the two specialists, Complainant and his union representative were meeting with
them to discuss a proposal by management to move Complainant to the cleaning route in the
basement due to numerous complaints about Complainant that had been received by EMS
management. IR 184.

Complainant alleged that on September 16, 2011, the LSA harassed him by asking him to
empty trash bins. Complainant admitted, however, that emptying trash cans was part of his
job. IR 183-84.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

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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). Consequently, in order to prevail on his claims of discrimination and discriminatory
harassment, Complainant would have to prove, by a preponderance of the evidence, that all of
the officials he identified in his complaint were motivated by unlawful considerations of his
race or disability in connection with the incidents comprising his complaint.. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Such evidence can take the
form of discriminatory statements or past personal treatment, comparative or statistical data
showing outsized imbalances along the lines of race or disability, unequal applications 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).
The Commission has long held that unsupported assertions by a Complainant are not sufficient
evidence of discriminatory motivation. Porter v. Department of the Navy

, EEOC Petition No.
03800087 (January 14, 1981). When asked why he believed that the officials he named
harbored racial animosity towards him, Complainant answered that it was because everyone he
interacted with was Black. Complainant admitted that did not know whether the LRS, the
Prosthetics Chief, the LSC or the LSA were even aware of his disability, but asserted that the
other officials were aware of his disability. Beyond his own speculations, however,
Complainant has not presented any evidence, such as sworn statements from other witnesses or
documents that contradict the explanations provided by the various officials he named or call
their veracity into question. Moreover, every incident Complainant described involved routine
work assignments, instructions, and admonishments. We find that such occurrences do not
rise to the level of discriminatory harassment. We therefore find, as did the Agency that
Complainant failed to satisfy his burden of proof as to the existence of discrimination on the
bases of race or disability with respect to any of the incidents comprising his claim.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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

Date
March 11, 2015