Erwin V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120182360 (E.E.O.C. Sep. 25, 2019)

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

Erwin V.,1
Complainant,

v.

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

Appeal No. 0120182360

Agency No. 200H-0632-2017102941

DECISION

On June 22, 2018, 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
May 23, 2018, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected him to a hostile work environment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Engineering
Equipment Operator, WG-8, at the Agency’s VA Medical Center in Northport, New York.

Complainant stated that on or about December 12, 2016, he suffered a work-related injury, which
resulted in his placement on light duty status.

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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Complainant averred that shortly thereafter, beginning in January 2017, his first-level supervisor
(S1) expressed displeasure with Complainant’s light duty status and questioned how long
Complainant would remain on light duty status. Complainant further alleged that S1 barred his
use of the Agency pickup trucks once Complainant switched to light duty status.

Complainant averred that on or about March 30, 2017, while loading pallets into a truck operated
by a contractor, he observed that the truck was dirty and offered to clean the truck. Complainant
contended that his actions were a “fairly common occurrence” and asserted that he retrieved
cleaning supplies from the cleaning supply closet. Complainant stated that before he could begin
to clean the truck, he was surrounded by police officers that S1 had called, which resulted in his
arrest and a subsequent Notice of Proposed Removal.

According to a police report memorializing Complainant’s March 30, 2017 arrest, which included
S1’s witness statement, S1 observed Complainant from his office window and Complainant was
carrying a box through the shop door. S1 stated that he immediately left his office and on his way
to the shop, he noticed that the cleaning supply closet was open. S1 added that he exited the shop
and walked to the truck that Complainant and the driver were loading, where he observed the box
that Complainant was carrying on the front seat and called VA Police Services. The police report
notes that Complainant had taken two boxes of gloves, eight boxes of Brawny paper towels, and
one bottle of Simple Green solution, which Complainant admitted to placing in the truck.
Complainant received a violation for petit larceny.

On March 31, 2017, the Agency’s Environmental Service Chief issued Complainant a Notice of
Proposed Removal. According to the Notice, at or around 9:00 a.m. on March 30, 2017,
Complainant was found placing a container of cleaning supplies valued at $134.27 into the front
seat of a vehicle owned by a contractor. The Notice stated that the cleaning supplies were
government property and Complainant had no authorization to control or transfer possession of
the property to a contractor.

On August 18, 2017, Complainant was issued a Notice of Suspension. The Notice indicated that
in connection with a letter dated July 27, 2017, a decision was made to suspend Complainant from
August 27, 2017 through September 9, 2017, and the charges stated in the proposed removal were
sustained.

On June 8, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (actual and perceived) and in reprisal for current protected
EEO activity under Title VII when:

1. In December 2016, S1 barred Complainant from driving a pickup truck around the
VA facility;

2. Beginning in January 2017, S1 started making comments and/or questioned
Complainant regarding Complainant’s disability and his light duty status;

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3. On March 30, 2017, S1 informed VA Police Services that he saw Complainant put
government supplies in a truck belonging to a contractor who did not work for the
government, which caused VA Polices Services to arrest Complainant and issue
Complainant a ticket for petit larceny;

4. On or about March 31, 2017, Complainant was issued a proposed removal; and

5. On August 21, 2017, Complainant was issued a 14-day suspension to be served
from August 27 to September 9, 2017.

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
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

In the final agency decision (FAD), the Agency noted that Complainant failed to participate in the
investigation of the complaint. The Agency described attempts to contact Complainant and his
former representative multiple times in September and November 2017. The Agency stated that
because Complainant did not participate in the investigation, the record contains no relative
comparative evidence to suggest that Complainant was treated less favorably than similarly
situated employees outside of his protected classes who engaged in the same conduct.

The Agency explained that Complainant failed to establish a prima facie case of discrimination
based on disability or reprisal. In doing so, the Agency stated that Complainant’s allegations were
insufficient to satisfy Complainant’s burden of proving by a preponderance of the evidence that
he was subjected to discrimination. Further, S1 provided legitimate, nondiscriminatory reasons
for his actions, i.e. Complainant was caught stealing government property, which resulted in his
arrest, proposed removal, and subsequent suspension. S1 testified that the use of pickup trucks
was restricted for the entire staff, and golf carts were to be used when appropriate because they
were less expensive to operate. Regarding Complainant’s light duty allegations, S1 stated that he
only asked Complainant if his light duty assignments were going well, as a routine matter, to ensure
that the accommodations provided were effective.

As for Complainant’s hostile work environment claims, the Agency found that Complainant failed
to provide evidence to rebut the testimony of S1. The Agency concluded that Complainant failed
to establish a prima facie case of unlawful harassment based on his disability or prior EEO activity.

CONTENTIONS ON APPEAL

Complainant contends that the FAD erroneously determined that he failed to prove his claims of
disability discrimination and reprisal because he did not return interrogatories or participate in the
investigation.
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Complainant asserts that he returned interrogatories on December 19, 2017, which was after
completion of the ROI. Complainant states that the Agency specifically determined that the
interrogatories were relevant to the complaint and accepted the interrogatories as part of the record
on February 8, 2018, but the FAD omitted any reference to his responses and claimed that they
were not returned or part of the investigation.

Complainant argues that the ROI was incomplete and failed to consider all relevant evidence
because the Agency did not respond to document requests from the Investigator and the ROI was
completed without his interrogatory response. Complainant contends that the Investigator failed
to provide an opportunity for him to submit a rebuttal statement. Complainant maintains that he
was treated differently and subjected to adverse employment actions because of his light duty
status and request for an accommodation. Complainant asserts that in the absence of
management’s responses to document and statistical requests, it is not possible to identify all
comparators. Complainant states that even without responsive statistical information, there was at
least one individual not on light duty who was disciplined for stealing gas for his personal vehicle
on three separate occasions and that individual was not arrested or prosecuted.

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 (EEO MD-
110), 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 parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
investigation of his complaint. Upon review of the entire record, the Commission is not persuaded
that the investigation into Complainant’s complaint was improper. Complainant failed to request
a hearing, a process which would have afforded him the opportunity to conduct discovery and to
cure alleged defects in the record. Thus, despite the above-referenced arguments, the Commission
determines that the investigation was properly and adequately conducted, and the record is
sufficient for a decision maker to review and make a determination on his claims. We note that
Complainant’s late-submitted interrogatories are part of the appellate record and have been
reviewed in the adjudication of this appeal.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he 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 his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
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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).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Construing the evidence in the light most favorable to Complainant, we find that the alleged
incidents were not sufficiently severe or pervasive to establish a legally hostile work environment.
The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was
sufficiently severe or pervasive to create a hostile work environment, the Commission finds that
Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory
animus.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. Regarding claim (1), S1
testified that he instructed everyone in the unit to use golf carts for transportation and trucks for
specific tasks. Investigative File (IF), at 154. S1 stressed that Complainant was not barred from
using the trucks. Id. As for claim (2), S1 denied questioning Complainant’s disability or light
duty status. Id. S1 explained that he asked Complainant how light duty status was going and
Complainant indicated that he would probably remain on light duty status forever to which S1
stated that he responded, “fine, do what you have to do.” Id.

With respect to claims (3), (4), and (5), S1 testified that he caught Complainant stealing VA
property and called VA Police, which he considered proper protocol. IF, at 154. VA Police arrived
and arrested Complainant and another individual. Id. S1 asserted that the proposed removal and
subsequent suspension were related to Complainant’s March 30, 2017 arrest. Id.

We are not persuaded that the incidents at issue were motivated by Complainant’s disability or
protected activity. We find that the complained of conduct did not have the purpose or effect of
unreasonably interfering with his work performance and/or creating an intimidating, hostile, or
offensive work environment. As such, we find that, Complainant has not shown that he was
subjected to a discriminatory or retaliatory hostile work environment. Furthermore, to the extent
that Complainant is alleging disparate treatment with respect to his claims, the Commission finds
that he has not shown that the Agency’s reasons for its actions were pretext for unlawful
discrimination.
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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 finding that it did not discriminate against
or subject Complainant to a hostile work environment as alleged.

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 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. 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. 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.
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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

September 25, 2019
Date