Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2013-2205-0500 (E.E.O.C. May. 13, 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
(Veterans Health Administration),
Agency.

Appeal No. 0120132205
Hearing No. 440-2012-00045X
Agency No. 200J0578201110089

DECISION
Complainant filed an appeal from the Agency’s February 7, 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. 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 Maintenance
Inspector at the Agency’s Veterans Affairs Medical Center facility in Hines, Illinois. On
March 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

(A) On November 23, 2010, Complainant received a minimally successful
performance rating and his assigned day to day duties did not match his position
description or the performance evaluation.

(B) Complainant was terminated effective March 31, 2011, during probation.

(C) Complainant was subjected to a hostile work environment that included the
following incidents:

1. On August 2, 2010, Complainant was asked by S1, his immediate supervisor,
"What do you need" each time he entered his supervisor’s office.
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2. On September 16 and 17, 2010, Complainant sent an email to the Chief of
Service (S2) asking for computer menus which his supervisor had not provided
him to accomplish his work.

3. On September 22, 2010, S1 prevented Complainant from going to lunch on time
and told him he could not leave until a coworker returned.

4. On September 23, 2010, while on the telephone with a customer, S1 rudely
interrupted Complainant and spoke to him in a loud tone of voice.

5. On September 25, 2010, Complainant learned that S1 did not request additional
computer menus for him so that Complainant could perform his work.

6. On September 27, 2010, S1 presented a letter of inquiry regarding leaving the
work area to Complainant for his signature, however, Complainant declined to
sign as the document was inaccurate.

7. On November 12, 2010, S1 left work and neglected to leave keys used on the
environmental rounds so that Complainant could perform work.

8. On November 15, 2010, Complainant emailed S2 regarding master keys,
however, S2 told Complainant he was not using his chain of command properly.

9. On November 23, 2010, Complainant received a minimally successful
performance rating and his assigned day to day duties did not match his position
description or the performance evaluation.

10. On November 24, 2010, S1 gave complainant a referral to the Employee
Assistance Program.

11. On November 26, 2010, S1 spent more time training a volunteer who has duties
in the department.

12. On November 29, 2010, complainant asked for a meeting with S2, however, as
of November 30, 2010, S1 had not scheduled the meeting.

13. On December 2, 2010, during a meeting with S2 and S1, Complainant was
referred to as an incompetent, unprofessional, troublemaker who has a problem
with authority and does not listen.

14. Effective March 31, 2011, Complainant was terminated during probation.

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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. When
Complainant did not object, the AJ assigned to the case granted the Agency’s June 11, 2012,
motion for a decision without a hearing and issued a decision without a hearing on January 17,
2013. In her Decision, the AJ found that the material facts were undisputed, and that drawing
every reasonable inference in Complainant’s favor, that Complainant did not present evidence
from which a trier of fact could conclude that Complainant was subjected to discrimination as
alleged.

The AJ found that with respect to claim (A), that Complainant failed to present a prima facie
case of race discrimination because Complainant failed to identify any other employee outside
of his protected racial group who was treated better than he was under the same or similar
circumstances. The AJ found that even if he had done so, that the Agency articulated
legitimate, nondiscriminatory reasons for rating Complainant “minimally successful.” The AJ
found that S1 rated Complainant’s performance as minimally successful because Complainant
did not properly distinguish emergency from nonemergency calls for maintenance.
Additionally, S1 stated that Complainant did not properly follow the chain of command and
was using the wrong communication equipment. The AJ found that Complainant did not show
that the Agency’s reasons for its actions were a pretext for discrimination and did not show
that other employees had the same performance issues that Complainant had, but received
better ratings from S1. The AJ found that Complainant admitted to most of the examples of
performance issues that S1 described, but Complainant stated that S1 exaggerated the negative
impact of them.

With respect to Complainant’s reprisal claims (Claim (B) and related harassment incidents), the
AJ found the evidence showed that the Agency was aware of Complainant’s protected EEO
activity by December 3, 2010. The AJ found that prior to that time, S1 conducted a
performance review with Complainant on November 23, 2010, during which review S1 was
critical of Complainant’s performance. The AJ found that review occurred before
Complainant engaged in protected activity. Later, on March 21, 2011, S1 found that
Complainant handled an emergency maintenance call improperly. Complainant, the AJ found,
took full responsibility for that mistake, which caused a department at the Agency to be
evacuated after employees called to complain about a smell. The AJ found that after that
incident, S2 made the decision to terminate Complainant’s employment. The Agency found
that Complainant did not present any evidence that any other employee making a similar
mistake regarding an emergency call was not also terminated.

Regarding Complainant’s claim that he was deemed a troublemaker and incompetent during the
discussion with S1 and S2 on December 2, 2010, the AJ found that Complainant did not
present evidence that S1 and S2 were aware of Complainant’s EEO activity at that time. The
AJ found the evidence showed that they were notified no sooner than the next day, when
Complainant had his initial EEO interview with the EEO Counselor. The AJ found that the
troublemaker and related comments, assuming they occurred as Complainant alleged, were
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separated from Complainant’s termination by more than four months and Complainant was
terminated only after he made the emergency call mistake, which Complainant did not deny
happened as the Agency described. The AJ found that the alleged troublemaker and related
remarks did not rise to the level of harassment and that the Agency supported its termination
decision by reasons unrelated to Complainant’s race or EEO activity.

The AJ found that with respect to claim (C), the AJ found that Complainant failed to present
evidence to support any nexus between his race (or reprisal) and the Agency actions he
described as harassment. The AJ found that the Agency also supplied legitimate,
nondiscriminatory reasons for those actions that are undisputed. For example, the AJ found
that S1 stated he asked all employees “what do you need” when they entered his office, not
just Complainant. The AJ found that S1 interrupted Complainant during a phone call for
assistance because S1 heard Complainant provide incorrect information. S1 also stated that on
the day Complainant did not have the keys he required, S1 had put the keys in his desk where
Complainant could access them. The AJ found no dispute that the incidents occurred as
Complainant alleged, but that the Agency provided reasons for its actions that Complainant did
not show were tied in any manner to his race. The AJ did not find that Complainant presented
evidence that he was subjected to unwelcome conduct based upon discrimination that rose to
the level of harassment. Assuming the incidents occurred as Complainant alleged, the AJ
found that Complainant did not show that the Agency’s stated reasons for its actions were a
pretext to mask race discrimination or reprisal.

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, the Agency states that in its decision dated August 30, 2012, the Merit Systems
Protection Board (MSPB) granted Complainant’s petition for review of an initial decision
regarding the MSPB’s decision that it lacked jurisdiction over Complainant’s appeal of his
separation (MSPB Docket No. Docket No. CH-315H-11-0479-I-2 (August 30, 2012)). In its
Decision, the MSPB ordered the Agency to reinstate Complainant to his position as a
Maintenance Inspector and to provide Complainant with back pay. The Agency requests that
the Commission deny Complainant’s instant appeal and affirm the AJ’s Decision, finding no
discrimination.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
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genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf.

29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
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
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). With respect to element (5), an employer is subject
to vicarious liability for harassment when it is created by a supervisor with immediate (or
successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth,
524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton

, 524 U.S. 775,
118 S. Ct. 2275, 2292-93 (1998).
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To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
As a preliminary matter, we find that Complainant elected to submit his claim regarding his
termination in March 2011, to the MSPB and that he achieved a resolution to that claim
through that forum. The record does not indicate the AJ was informed of the MSPB decision
finding the termination improper. We therefore find that claim (B) is dismissed pursuant to 29
C.F.R. §1614.107(a)(4).

We find the AJ properly issued her Decision without a hearing because the material facts are
undisputed. We find, as did the AJ, that S1 supported the minimally successful rating that he
gave to Complainant in November 2010, with examples of Complainant’s performance that he
found to be inadequate. We note that S1 describes an occasion where Complainant did not
answer the telephone properly when he was covering for another employee and that incident is
reflected in Complainant’s performance rating. Complainant does not deny that the incident
occurred, but states that answering the telephone and completing the required work order, is
not in his job description just as additional matters of performance are not, for which he was
criticized by S1. We do not find any evidence to show that Complainant’s race motivated S1
to include the telephone incident in Complainant’s performance appraisal. We find S1
observed Complainant’s work and found that Complainant had difficulty determining which
calls were emergency matters.1

Complainant, S1 stated, would not gather the right
information and that he was trained on how to properly handle calls. Despite this, S1 stated,
Complainant did not handle telephone calls appropriately and that led to his minimally
successful performance appraisal. We find as did the AJ that Complainant did not present
evidence that S1’s explanation was untrue or a pretext to mask discrimination.
With respect to Complainant’s harassment claim, we find, as did the AJ, that most of the
incidents described in Complainant’s complaint occurred as alleged, but that Complainant did
not present evidence that his race or, after December 3, 2010, his EEO activity, played any

1 We note, that the undisputed evidence further shows that Complainant’s failure to properly
handle an emergency call in March 2011, led to the issuance of Notice of Termination which
we consider as background evidence for Complainant’s overall claim of harassment.

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role in the Agency’s actions. We find no dispute that Complainant was referred to employee
counseling after he became overly emotional during a discussion with his supervisors. We find
that Complainant was required to wait for another employee to return from her lunch break
before Complainant could take his lunch break. The Agency explained that the returning
employee was counseled regarding her returning from lunch break on time, but that for
coverage of the telephone, Complainant was instructed to wait for her to return. We find no
evidence that Complainant’s race (or retaliation) played any role in the Agency’s decision to so
instruct Complainant regarding his lunch break. We find the undisputed evidence shows that
Complainant was provided with some computer access, but that S1 confirms that Complainant
was not given full access to some menus because he was in training. S1 explained that
Complainant wanted to spend his time programming and that he did not need the additional
access for his current duties. Additionally, S1 explained that Complainant did not have his
own set of keys and that his request for keys was properly denied because he was instructed to
use S1’s keys which were kept where Complainant had access to them as needed. We find, as
did the AJ, that drawing every reasonable inference in Complainant’s favor, that Complainant
did not describe unwelcome conduct based on his race (or reprisal), that rose to the level of
harassment.

CONCLUSION
Based on a thorough review of the record, we find that claim (B) should be dismissed pursuant
to 29 C.F.R. §1614.107(a)(4) and we AFFIRM the Agency’s Final Order with respect to
claims (A) and (C), 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:

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
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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

Date
May 13, 2015