Cristopher N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180289 (E.E.O.C. Apr. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cristopher N.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120180289

Agency No. 200I05162017100414

DECISION

On October 16, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 17, 2017, final decision concerning his equal employment opportunity (EEO) complaint.
He alleged 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Supply
Technician, GS-06, at the Agency’s Clinical Section / Logistics, CW Young Hospital facility, in
Bay Pines, Florida.

On November 30, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Puerto Rican), religion (Catholic), and
reprisal for current protected EEO activity under Title VII when:

1. In December 2015, Complainant’s supervisor denied his request for eight hours
Annual Leave to be taken on November 25, 2016;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. On July 25, 2016, Complainant’s supervisor threatened to lower Complainant’s
performance rating if he did not help train a co-worker;
3. On September 23, 2016, Complainant’s supervisor moved Complainant from a
light duty assignment in the Operations Room to a floor position delivering
medical supplies to the clinical areas;2
4. On October 21, 2016, Complainant’s supervisor yelled at Complainant in front of
his co-workers and embarrassed him;
5. In October 2016, Complainant’s supervisor denied Complainant’s request for
Annual Leave from December 24, 2016 to January 1, 2017; and
6. On November 17, 2016, Complainant’s supervisor failed to address a co-worker’s
failure to stock rooms, resulting in extra work for Complainant.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The pertinent record reveals the following facts. Complainant reports to Chief, Clinical
Distribution Section TA (S1). The record does not disclose S1’s national origin, religion or
disability status. Complainant averred that this is his first EEO complaint. He acknowledged that
he filed this complaint, alleging reprisal “because of the amount of hostility and harassment he
was receiving from his supervisor.” Complainant stated that his supervisor is “openly racist and
it is no secret in my department.” In support of his claim of religious discrimination,
Complainant referenced S-1’s surprised facial expression upon seeing Complainant’s “religious
tattoos.” Complainant also stated that he believed S1 is of “European-American” heritage.

Claims 1 and 5 – Denials of Annual Leave

Complainant submitted his request for annual leave on December 9, 2015. In December of 2015,
Complainant’s supervisor (S1) denied Complainant’s request for eight hours of annual leave to
be taken on November 25, 2016. The record shows that S1 approved 13 of 14 of the requests that
Complainant submitted for the year, but he did not approve the November 25, 2016 request.

Complainant averred that S1 told him that he could not take leave, because two employees could
not be off at the same time and because someone more senior had requested leave at the same
time.

In October 2016, S1 denied Complainant annual leave from December 24, 2016 through January
1, 2017. His supervisor averred that he had disapproved this leave request for the end of
December 2016, because the dates did not coincide with the leave request that Complainant had
submitted in December 2015.

2 Complainant’s formal complaint did not allege discrimination based on disability, but the
Agency’s decision included a claim of “disability (unspecified).”
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S1 stated that he disapproved Complainant’s leave request for December 25, 2016, because it
was already an excused holiday. The supervisor also stated that he disapproved Complainant’s
leave request for December 28, 2016 to December 31, 2016 because S1 stated the workload did
not permit it. After further discussion, Complainant’s leave request was later approved by the
new Chief.

According to the report of investigation, the supervisor (S1) “confirms being aware of
Complainant’s EEO activity” and “his medical issues, which Complainant openly discussed with
staff members.” The formal complaint did not include his disability claim.

Claims 2, 3, and 4 – Supervisor threatened, reassigned and yelled at Complainant

On July 25, 2016, Complainant’s supervisor directed Complainant to train a coworker on his job
position. Complainant objected and told S1 it was not fair and pointed out that training
employees was not in Complainant’s job description. S1 told Complainant that if he did not train
the co-worker, it was going to affect his annual evaluation.

S1 stated that, on September 16, 2016, he informed the union that Complainant’s schedule
needed to be adjusted to be consistent with the schedule that applied to all supply technicians.
Complainant averred that his supervisor moved him from his light-duty station, that he had been
in for four years and changed his duty hours and day, after the July 25, 2016 incident.

On September 23, 2016, Complainant’s supervisor moved Complainant from a light-duty
assignment in the Operations Room to a floor position that required him to deliver medical
supplies to the critical areas. The supervisor denied that he had any documentation that identified
Complainant as being on light-duty at the time of the duty hours adjustment.

On October 21, 2016, S1 yelled at Complainant in front of his coworkers and embarrassed
Complainant, after Complainant told S1 that he could not finish the extra work due to the lack of
re-training and the pain he was having in his knees.3 The supervisor yelled at him regarding not
completing his assigned duties. Complainant’s duties included servicing an additional ward that
S1 assigned to Complainant, ostensibly due to a staffing shortage that day.

Claim 6 – Supervisor failed to address a co-worker’s failure to stock rooms

3 The record includes a document, signed on December 6, 2016, noting Complainant’s
acceptance of a limited-duty position for an injury that occurred on December 5, 2016. We note
this date was after the period at issue in this complaint. The record also includes a Written
Confirmation of Request for Accommodation from Complainant, dated February 14, 2017, and
an unrelated email dated April 19, 2017, referencing his appraisal rating.
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Complainant contends that, on November 17, 2016, Complainant’s supervisor failed to address a
co-worker’s failure to stock rooms, which Complainant claimed resulted in extra work for
Complainant. S1 stated that Complainant was responsible for the stock rooms, not the co-worker,
during the period at issue.
Agency Decision

Although the Agency had dismissed some of Complainant’s allegations of workplace
harassment, the Agency concluded that the record was sufficiently developed to adjudicate all of
his claims, including his national origin and religious harassment claims.4 The Agency reasoned
that the reprisal claim failed because Complainant acknowledged that he had not filed any prior
EEO complaints. The Agency stated that Complainant’s harassment claims focused on isolated
incidents in which Complainant’s supervisor expressed frustration with Complainant’s job
performance while in the presence of Complainant’s co-workers, Complainant’s frustration that
his supervisor asked him to train a newly hired employee and his disapproval of some of
Complainant’s leave requests. The Agency found that Complainant failed to satisfy the prongs of
his hostile workplace harassment claim. Next, the Agency reasoned that the record contained
insufficient evidence to demonstrate that the challenged conduct was motivated by
Complainant’s membership in a protected class or discriminatory animus. The Agency
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant requests an investigation of his supervisor. Complainant asserts that the
supervisor “is unprofessional, uses profanity, discriminates, and bullies the employees and
patients at the Bay Pines Hospital.” He states that “there has been a plethora of complaints and
reports with the EEO Office and Union” about the supervisor, but management has not addressed
the situation.

ANALYSIS AND FINDINGS

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 Chapter 9, § VI.A. (Aug. 5, 2015) (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

4 The Agency initially dismissed Complainant’s harassment claims based on national origin,
religion, and disability. The Agency accepted the harassment claims based on retaliation. The
Agency also refused to accept Complainant’s reasonable accommodation claim for investigation.
The Agency stated it had no record of Complainant making any reasonable accommodation
request.
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Regarding Complainant’s retaliation claim, the record shows that Complainant acknowledged
that he had not engaged in prior EEO activity. Complainant failed to establish the first element
of his prima facie reprisal claim. In addition, we note that Complainant’s complaint did not
include an allegation of discrimination based on disability.

For purposes of our analysis, we considered all of the record evidence. As his evidence of
pretext, Complainant averred only that he believed that his supervisor was unprofessional, used
profanity, discriminated against and bullied other VA employees and management has done
nothing to curb S1’s unprofessional behavior. The record indicates that some of Complainant’s
leave requests were initially denied because of staffing issues and based on seniority. S1 gave
Complainant feedback after Complainant told him that he had not completed his assigned duties.

Further, we note that the record does not contain any evidence that Complainant was singled out
for abuse due to his national origin or religion. There was no evidence of discriminatory animus.

Assuming that Complainant established his prima facie claims, we find that Complainant did not
offer sufficient evidence that S1’s actions were a pretext for unlawful discrimination.

Finally, we will consider this as a hostile environment claim. To establish a claim of hostile
environment harassment, a complainant must show that: (1) he or she is a member of 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 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). Consequently, Complainant must establish that he was subjected to conduct
that a “reasonable person” in Complainant’s position would have found to be hostile or abusive.
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Complainant must also prove that the conduct was taken because of a protected basis – in this
case, his national origin or religion, or prior protected activity. Only if Complainant establishes
both of those elements – hostility and motive – will the question of Agency liability present
itself.

Here, we find that Complainant failed to prove that he was subjected to harassment by the
Agency based on his protected bases. Moreover, there is no evidence that others, not in his
protected groups, were treated any better.

For all of these reasons, we find that Complainant did not establish, by a preponderance of the
evidence, that he was the victim of unlawful discrimination or a hostile work environment, as
alleged.

Finally, we note that the record on appeal includes evidence pertaining to possible new claims.
The record includes Complainant’s February 2017 request for reasonable accommodation. To the
extent that Complainant wants to raise claims regarding incidents that occurred in 2017, he may
contact an EEO Counselor to pursue the new claims.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 Complainant’s 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

April 26, 2019
Date