Matthew H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120171588 (E.E.O.C. Dec. 4, 2018)

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

Matthew H.,1
Complainant,

v.

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

Appeal No. 0120171588

Agency No. 200H-0595-2016101248

DECISION

On March 24, 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
March 6, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 decision.

ISSUES PRESENTED

Whether the Agency discriminated against Complainant based on his age, disability, and religion
when it gave him a “Fully Successful” performance rating; and subjected him to a hostile work
environment.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
(HR) Specialist, Employee Relations/Labor Relations (ER/LR), at the Agency’s Veterans Affairs
Medical Center in Lebanon, Pennsylvania.

Between March 2014, and December 2015, Complainant stated that he requested to meet with his
first line supervisor (S1) (age 38, unspecified disability status, no religious affiliation)
approximately 20 times to discuss cases that he was working on, and S1 did not meet with him.
ROI at pgs. 109-114. In 2014 and 2015, the Agency conducted “Nuts and Bolts” training for
supervisors approximately every two months. Even though Complainant was listed as a co-
presenter with a coworker (CW1) (age 42, unspecified disability status, undisclosed religion), he
was never given an opportunity to present the training. ROI at pgs. 130-132.

On March 12, 2015, Complainant received an email about a personnel matter, and asked S1 for
his opinion; S1 responded, “what are your thoughts?” ROI at pg. 512. On April 13, 2015, S1
emailed Complainant informing him that all ER/LR actions should be documented in a 6-part
folder, and attached a sample. ROI at pg. 513.

On May 6, 2015, Complainant emailed S1 asking if he could attend CPR training. S1 forwarded
Complainant’s request to CW1,2 who denied the request, stating that Complainant’s “time could
be used on more pertinent HR related matters.” ROI at pg. 514. On or about July 6, 2015,
Complainant approached S1 to discuss a complicated case. Complainant stated that S1 did not
respond to his questions, and screamed “Jesus Christ.” Complainant stated that S1 then reassigned
the case to CW1, before reassigning it back to Complainant. ROI at pgs. 162-166.

On an unspecified date in the summer of 2015, Complainant stated that S1 assigned CW1 to attend
a hearing for one of Complainant’s cases. ROI at pg. 172. On August 27, 2015, Complainant sent
S1 an email asking for advice on an employee action. S1 responded that Complainant should not
need to come to him for every course of action. ROI at pg. 515. On August 31, 2015, S1 tasked
CW1 with contacting Regional Counsel for a legal opinion on one of Complainant’s cases. ROI at
pg. 186. Also on August 31, 2015, S1 reassigned one of Complainant’s cases to another HR
Specialist (HRS), who was not in ER/LR. ROI at pgs. 192, 516.

Beginning on September 8, 2015, S1 informed Complainant that he was not to attend meetings
with the Medical Center Director (MCD) (age 50, unspecified disability status, Christian), and
after September 22, 2015, S1 stopped informing Complainant about the meetings. ROI at pgs. 197,
517-519. On September 14, 2015, Complainant sent S1 an email about a potential removal of an
employee. S1 responded that “past practice is 2 weeks’ notice. I think the removal date should be
no earlier than Friday!” ROI at pg. 520.

2 At the time, CW1 was the Acting Assistant HR Officer, and was Complainant’s temporary
supervisor. ROI at pg. 290.
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On September 22, 2015, MCD directed Complainant to make an inquiry to Regional Counsel, and
made the same request to S1, without informing Complainant. S1 assigned the request to CW1,
also without informing Complainant. ROI at pg. 211.

On September 22, 2015, Complainant stated that S1 “banned” him from working on one of his
cases, and that CW1 attended a meeting to discuss this case. ROI at pgs. 215-217. On September
24, 2015, Complainant emailed S1, requesting the file for an ongoing case. S1 responded that
Complainant could pick up the file, and instructed him to conduct case law research and present
his findings. ROI at pg. 522.

On October 13, 2015, Complainant stated that he attended a meeting with CW1, who informed
him that MCD wanted to exclude him from the meeting. ROI at pg. 224. On October 15, 2015, S1
delayed in responding to Complainant’s request to attend training, which resulted in his inability
to attend because the class filled before he could register. ROI at pg. 229.

On November 16, 2015, S1 gave Complainant a performance rating of “Fully Successful.” ROI at
pgs. 472-473. During the meeting to discuss the rating, S1 stated that he did not assign
Complainant any Merit Systems Protection Board (MSPB) cases because his files were a “mess.”
Additionally, they discussed Complainant’s use of the term “outrageous” in an employee’s
discipline letter. ROI at pgs. 240-241,245,249-251.

In December 2015, Complainant resigned from the Agency. ROI at pg. 253. On December 26,
2015, the Agency effected Complainant’s termination, noting that it received his December 1,
2015, request to transfer to a position with the Department of the Army. ROI at pgs. 508-509.

On March 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of religion (Jewish), disability (anxiety, duodenal ulcer, and irritable
bowel syndrome), and age (62) when:

A. on November 15, 2015, it gave him a “Fully Successful” performance rating;

B. on December 8, 2015, it forced Complainant to resign from his position; and

C. it subjected him to a hostile work environment based on the following events:
1. between March 12, 2014, and December 26, 2015, S1 never met with
Complainant one-on-one when he requested it;
2. periodically during 2014 and 2015, Complainant was not asked to conduct
portions of “Nuts and Bolts” training to supervisors, even though he was listed
as a presenter with CW1;
3. on March 12, 2015, after Complainant asked S1 his thoughts on a serious
question about a case, S1 responded, “what are your thoughts?” and never met
with Complainant;
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4. on May 6, 2015, S1 failed to respond to Complainant’s email requesting to
attend a June 15, 2016, CPR training. Instead, S1 forwarded his request to CW1,
who denied it;
5. on July 6, 2015, S1 allegedly screamed “Jesus Christ,” when Complainant
asked if he should conduct a fact-finding that had been scheduled that week. S1
momentarily assigned the case to CW1, before reassigning it back to
Complainant;
6. during the summer of 2015, S1 asked CW1 to attend an EEO hearing on one of
Complainant’s cases;
7. on August 27, 2015, after Complainant requested S1’s advice about a case, S1
told him that he should not come to him for every course of action, and was
sarcastic when he responded, “put everything together in a nice 6-part folder
for [him] to review before any action [was] taken”;
8. on August 31, 2015, S1 asked CW1 to contact Agency Regional Counsel for a
legal opinion on a case that belonged to Complainant;
9. on August 31, 2015, S1 assigned one of Complainant’s cases to HRS, even
though he was not in ER/LR, and S1 never explained to Complainant why he
did so;
10. beginning September 8, 2015, S1 advised Complainant that he was not to attend
a semi-weekly meeting with MCD. After September 22, 2015, S1 stopped
notifying Complainant about the meetings entirely;
11. on September 14, 2015, S1 was “rude and hostile” in his email response to
Complainant about an impending termination about an employee;
12. on September 22, 2015, MCD directed Complainant to make an inquiry to
Regional Counsel, and without notifying Complainant, asked S1 to make the
same inquiry. S1 later assigned this task to CW1, without notifying
Complainant;
13. on September 22, 2015, S1 “banned” him from further involvement in the
termination of an employee, and assigned the case to CW1;
14. on September 24, 2015, S1 sent Complainant a “demeaning and childish” email,
and never met with him about the case, after Complainant requested to meet
with him;
15. on October 13, 2015, CW1 accompanied Complainant to a grievance meeting,
and later advised him that MCD opted to exclude Complainant from the
meeting;
16. on October 15, 2015, S1 delayed in responding to Complainant’s request for
ER/LR training, resulting in his inability to attend because the class was full;
17. on November 15, 2015, S1 rated Complainant “Fully Successful”;
18. during the November 15, 2015, meeting to discuss Complainant’s performance
appraisal, S1 informed Complainant that he did not assign him any MSPB cases
because his files were “a mess.” However, S1 never discussed Complainant’s
files with him at any time prior to November 15, 2015; and
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19. during the same meeting on November 15, 2015, S1 complained that
Complainant used the word “outrageous” in a proposed discipline letter, but
failed to address it with him at the time it was submitted for review.3

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) with respect to the non-mixed claims in his complaint. 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. In its final decision, the Agency concurred with the dismissal of incidents 4 and 16 for
untimely EEO Counselor contact.

The Agency elected to bypass the prima facie analysis of Complainant’s discrimination complaint,
and proceeded directly to the Agency’s explanations for their actions. For claim A, S1 stated that
Complainant needed to improve the organization of his 6-part folder for personnel actions. S1
added that Complainant was barely meeting his performance standards, and there was nothing to
justify a higher rating. The Agency then found that Complainant had not shown pretext for
discrimination. The Agency noted that while Complainant alleged that S1 did not raise any issues
with his 6-part folder until November 2015, the record contains an email from April 13, 2015, in
which S1 provided an example of an organized personnel file. Additionally, Complainant argued
that CW1 received a rating of “Excellent,” but made an error, and should have received a lower
rating. However, the Agency found that CW1’s 6-part files were much more organized than
Complainant’s files. The Agency concluded that Complainant’s performance rating was not the
product of discrimination.

With regards to claim B, the Agency found that Complainant did not show that he worked under
“intolerable working conditions,” to prove his constructive discharge claim. The Agency
determined that Complainant’s separation from the Agency was voluntary when he submitted his
resignation letter, after obtaining a job offer from another agency.

For Complainant’s hostile work environment claim, claim C, the Agency found that Complainant
did not demonstrate that any of the complained of conduct was motivated by his membership in
his protected classes because he stated that there were no other factors that could explain
management’s actions other than his age, disability, and/or religion. Additionally, the Agency
found that considering all the events as true, Complainant was not subjected to hostile or abusive
conduct. The Agency found that the interactions between S1 and Complainant were due to a
difference in temperament. The Agency determined that Complainant had not demonstrated that
he was subjected to a hostile work environment based on his protected categories.

3 On June 29, 2016, the Agency dismissed incidents 4 and 16 as independent claims because they
were not timely. The Agency noted that these incidents would be included in Complainant’s
overall harassment claim.
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The Agency concluded that Complainant did not show that he was discriminated against as alleged.
For claim B, the Agency informed Complainant of his right to appeal its decision on his
constructive discharge to the MSPB. Additionally, the Agency informed Complainant of his right
to appeal its decision for claims A and C to the EEOC.

Complainant filed the instant appeal, and submitted a brief in support of his appeal on April 19,
2017. The Agency filed a response on April 27, 2017.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s final decision is “materially flawed” because
the investigation was incomplete. Specifically, Complainant states that the investigator failed to
interview five key material witnesses that he had identified. Complainant requests that the matter
be remanded back for a complete investigation. Additionally, Complainant argues that the Agency
chose to ignore his documentation substantiating his allegation of discrimination and harassment.
Complainant asserts that the Agency relied on “management’s brazen lies.”

The Agency argues that Complainant did not proffer any factual allegations that the alleged actions
were based on any discriminatory animus. The Agency requests that the Commission affirm its
final decision.

ANALYSIS AND FINDINGS

Standard of Review

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 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, we affirm the Agency’s dismissal of incidents 4 and 16 as discrete claims of
discrimination because they are untimely. Additionally, Complainant filed a petition for review
with the MSPB for claim B,4 as the MSPB has jurisdiction over mixed-case claims of constructive
discharge. Accordingly, this decision will not address Complainant’s allegation that he was
discriminated against when he was forced to resign from the Agency.

4 We note that MSPB No. PH-0752-17-0210-I-1 is currently pending with the MSPB.
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Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his age, disability, and religion, we find that the Agency proffered legitimate, nondiscriminatory
reasons for its action. For claim A, S1 stated that Complainant was meeting his performance
standards, but not substantially exceeding them to justify a higher rating. S1 stated that his biggest
issue was Complainant’s use of the 6-part folders. S1 stated that despite clear direction,
Complainant still had information “thrown in the folder,” and that it took “copious amounts of
time” to find specific information. ROI at pgs. 284, 288, 344-346.

We find that Complainant has not shown that these reasons are pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
Complainant argues that the Agency failed to interview five witnesses. The record shows that the
investigator spoke with Complainant, and determined that four of the five named witnesses did not
possess information related to the issues in the instant complaint. The investigator contacted one
of Complainant’s witnesses, whose statement is included in the record. ROI at pgs. 523-525, 465-
469. On appeal, Complainant has not provided any information about the potential testimony of
the witnesses who were not contacted for his complaint. Accordingly, we find that the record is
complete, and not “materially flawed.” Further, upon review of the entire record, we are not
convinced that the Agency ignored Complainant’s evidence when it determined that Complainant
had not shown that he was discriminated against based on his protected categories.

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Additionally, Complainant alleges that the management officials lied. However, he did not specify
what information was untrue, and did not provide any evidence showing that they are not
believable. Therefore, Complainant has failed to establish pretext, or that he was discriminated
against based on his age, disability, or religion, when he received a “Fully Successful” performance
rating.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In this case, we find that Complainant has not shown that the complained of conduct was due to
his protected categories. Rather, we find that these incidents occurred during the regular course of
business. For example, S1 stated that some employees for whom ER/LR were providing services
and advice “lost faith” in Complainant because he was disorganized and provided conflicting
advice, and requested someone else to handle a case. For the training and meetings, S1 stated that
CW1 was the more senior ER/LR specialist, and Complainant was the back-up. Additionally, S1
stated that HRS was a Lead HR Specialist with a background in ER/LR, and that he assigned cases
to HRS when the workload was too much for Complainant and CW1. ROI at pgs. 298, 277, 319,
312-314. Even assuming that the incidents occurred as described, Complainant has not established
that his managers’ conduct was so severe or pervasive to rise to the level of unlawful harassment.
Accordingly, we find that Complainant has not shown that he was subjected to a hostile work
environment based on his age, disability, or religion.

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 final decision finding that the Agency
did not discriminate against Complainant when it gave him a Fully Successful performance rating,
and did not subject him to a hostile work environment, based on his age, disability, or religion.

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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. 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.
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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

December 4, 2018
Date