Porter H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181980 (E.E.O.C. Sep. 11, 2019)

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

Porter H.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120181980

Agency No. 200H-0646-2016103574

DECISION

Complainant timely 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 April 26, 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., 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

The issues presented are whether the preponderance of the evidence in the record establishes: (1)
that Complainant was subjected to disparate treatment or a hostile work environment based on
disability, age, and/or reprisal; (2) that Complainant was denied a reasonable accommodation;
and (3) that the Agency improperly disclosed Complainant’s confidential medical information in
violation of the Rehabilitation Act.

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 GS-2005-06 Supply
Technician at the Agency’s VA Pittsburgh Healthcare System (VAPHS), Logistics Department,
Heinz Campus, in Pittsburgh, Pennsylvania. Complainant’s first-line supervisor was a
Supervisory Inventory Management Specialist (S1), his second-line supervisor was the Chief
Logistics Officer (S2, 52 years old, no disability, EEO activity), and his third-line supervisor was
the Acting Associate Director (S3, 41 years old, no disability, EEO activity). Complainant stated
that he was responsible for stocking multiple buildings on the VAPHS Heinz Campus with
medical supplies.

Complainant was 56 years old at the time of events giving rise to this complaint. According to
Complainant, S2 was aware of his age because he had told Complainant that he walked slowly
and needed to pick up the pace. Complainant averred that he has diabetes with neuropathy,
pancreatitis, and high blood pressure. According to Complainant, cold weather aggravates the
symptoms of his hypertension and his diabetic neuropathy. Complainant stated that he first
engaged in the EEO process when he contacted an EEO Counselor on May 19, 2016, but he
alleged that he reported that S2 was harassing him to management and to his congressional
representative multiple times before that date.

On February 1, 2016, Complainant sent a letter to his congressional representative, accusing S2
of being a bully and dismissing staff concerns. Complainant noted that S2 harassed him when S2
encouraged Human Resources (HR) to investigate a December 2015 report that Complainant was
sexually harassing a female coworker (C1). The Agency received a congressional inquiry from
Complainant’s congressional representative on February 11, 2016. S3 stated that, in addition to
writing to Congress, Complainant had reported generally that S2 was singling him out for poor
treatment and that S2 was not a good manager. S3 averred that he recommended investigating
the allegations in Complainant’s correspondence with his congressional representative as well as
the complaints he made directly to S3 and that the VAPHS Director established an
Administrative Investigatory Board (AIB) to conduct the investigation.

According to S2, VAPHS had stopped using digital temperature/humidity gauges in favor of a
new system around the end of 2015, and he instructed his subordinates to remove the digital
gauges. In March 2016, S2 noticed that there was a digital temperature/humidity gauge in a
storage closet for which Complainant was responsible. S2 averred that he asked Complainant
why he had not complied with the instruction to remove the digital gauges. Complainant alleged
that S2 yelled at him and appeared angry. S2 denied yelling at Complainant. Complainant stated
that he had complained to S3 about S2’s management style a few days before the digital gauge
incident. According to Complainant, S2 did not check whether other employees had digital
gauges in their areas. Complainant sent another letter to his congressional representative on
March 29, 2016, alleging that S2 yelled at him for not removing the digital gauge.

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On March 10, 2016, S2 emailed Complainant, stating that the cleaning schedule in his supply
rooms was outdated and appeared to be from 2015 and reminding him that the supply rooms
needed to be cleaned and dusted on a monthly basis and that the cleaning schedule needed to be
documented.

According to Complainant, on April 5, 2016, the Associate Chief Nurse (RN1) told him that S2
had asked about supply shortages and had specifically asked whether RN1 had been in
communication with Complainant. Complainant averred that S2 discussed deficiencies in his
performance with RN1. S2 denied discussing Complainant’s performance with RN1, but he
stated that he had received complaints about supply levels. Complainant stated that he reported
this to S3 because he considered S2’s conversation with RN1 to constitute bullying and
harassment.

On April 12, 2016, S3 met with S2 to discuss recent complaints about S2’s management style,
specifically complaints that S2 was a bully, did not acknowledge his subordinates, and subjected
his subordinates’ work to excessive scrutiny. S3 averred that he directed S2 to refrain from
behavior that could be construed as bullying. On April 14, 2016, a three-member AIB was
organized to investigate whether: (1) S2 was a bully; (2) S2 retaliated against employees who
complained about his management style; (3) S2 dismissed staff issues and told them to “make it
work”; and (4) S2 told an employee that, if she could not do her job, he would find someone who
could.

On April 15, 2016, S2 conducted an inspection of the inventory in one of Complainant’s supply
rooms. S2 stated that he is responsible for periodically inspecting all supply areas for safety,
cleanliness, and organization. According to Complainant, S2 told him that the bins were dusty,
that the gloves were stocked incorrectly, and that a microwave oven was dirty. Complainant
alleged that S2 inspected his storage areas to retaliate against him for complaining to S3 about
S2’s management style. S2 averred that S3 did not tell him that Complainant had complained
about him. Complainant stated that S2 was looking for problems and that, based on staffing
levels, it was impossible to avoid dust.

On April 25, 2016, Complainant testified in front of the AIB. On May 10, 2016, Complainant
sent a letter to his congressional representative, accusing a Supervisory Inventory Management
Specialist (S4) of contacting him at home the night before he was going to testify before the AIB.
During the investigation of his EEO complaint, Complainant stated that S4 contacted him
approximately two weeks after his AIB testimony to ask what he had talked about and that she
also said that she did not want to say anything negative about S2. S4 denied contacting
Complainant to discuss his AIB testimony. In his rebuttal affidavit, Complainant alleged that S4
called him on April 24 and again on May 13, 2016.

On April 27, 2016, S2 sent an email to all of the Supply Technicians, which stated that the
warehouse was overstocked on straws and that the large amount of straws was an inappropriate
use of resources. S2 asked that the excess straws be returned or disposed of, but he did not state
who was responsible for ordering the straws.
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According to Complainant, he was responsible for ordering the straws. Complainant stated that
ordering extra straws should not have been a big deal because they would eventually get used. S2
stated that there were 40 large cases of straws, which took up a lot of space in the warehouse.
Complainant sent a letter to his congressional representative on May 10, 2016, accusing S2 of
sending the email about the straws in retaliation for his complaining about S2’s management
style.

Complainant stated that he was at Employee Health for 90 minutes on April 20, 2016. S1 was on
extended medical leave on that date, and S4 was Complainant’s acting supervisor. On April 29,
2016, S2 emailed Complainant and asked him to submit a sick leave request for April 20.
Complainant responded that he had been at Employee Health and that he was not required to use
sick leave for the visit. S2 thanked Complainant for clarifying where he had been and stated that
he would notify S1 and S4 that Complainant had been at Employee Health when they returned to
work. According to S2, because he was filling in for S1, he did not know Complainant had been
in Employee Health. S2 stated that an exception popped up on Complainant’s timecard because a
timekeeper indicated that Complainant had used sick leave, but Complainant had not requested
leave for that date. S2 averred that Complainant was not charged with sick leave. In a May 10,
2016, letter to his congressional representative, Complainant stated that S2’s request that
Complainant use sick leave was evidence of his aggressive behavior and “the ideology of ‘rule
by fear.’” Report of Investigation (ROI) at 1839.

S1 retired in late May of 2016. Prior to retiring, S1 rated Complainant’s performance from
October 2015 through May 2016. S1 rated Complainant as “Exceptional” in all performance
elements, resulting in an overall “Outstanding” rating. On July 10, 2018, a new Supervisory
Inventory Management Specialist (S5) became Complainant’s first-line supervisor.

A wall-to-wall inventory of Complainant’s supply room was due by the end of Complainant’s
shift on July 28, 2016. Complainant’s shift ended at 3:30 p.m. At 1:30 p.m. on July 28, 2016,
Complainant requested sick leave for the remainder of the day, and the wall-to-wall inventory
was not complete at that time. The Assistant Chief of Logistics (S6, over 40 years old, disability,
EEO activity) and S4 asked a Supply Technician from another VAPHS campus (C2) to come to
Heinz to complete the inventory. In an August 8, 2016, letter to his congressional representative,
Complainant alleged that C2 told him that he asked why he had to complete Complainant’s
inventory and that S4 and S6 stated that Complainant “calls off to avoid training.” Complainant’s
letter also stated that he met with S6 to discuss C2’s comment and that S6 referred to
Complainant receiving treatment at the VA Behavior Health Clinic. During the EEO
investigation, Complainant averred that when C2 asked why he needed to complete
Complainant’s inventory, S4 told C2 that Complainant was being seen at the Behavior Health
Clinic. S4 and S6 stated that they told C2 that he needed to complete Complainant’s inventory
because Complainant was out sick, and they denied telling C2 that Complainant was at the
Behavioral Health Clinic. According to S4, she did not know why Complainant had requested
sick leave, and she was unaware of any of his health conditions at that time.

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S6 stated that he met with Complainant several days after the date of the wall-to-wall inventory
and that Complainant voluntarily disclosed that he had sought mental health care, but he denied
telling anything about Complainant’s medical conditions or where he was seeking treatment to
C2. C2 stated that S4 and S6 did not tell him that Complainant was being seen at the Behavioral
Health Clinic, and he denied making the statement to Complainant. C2 admitted that he was
upset that Complainant left early on the day of the wall-to-wall inventory.

On August 17, 2016, the AIB concluded its investigation, noting that, while several employees
characterized S2 as abrasive, loud, dismissive, and defensive, the investigation did not
substantiate the allegation that S2 retaliated against employees who complained about his
management style. The AIB recommended to the VAPHS Director that the Logistics Department
implement a plan to improve employee communication and engagement. The record contains a
March 14, 2017, document detailing the implementation of the plan recommended by the AIB.

On September 16, 2016, the Primary Care Nurse Manager (RN2) told S5 that she had received
multiple complaints about medical supply inventory not being regularly checked and
replenished. Later that day, RN2 emailed Complainant and stated that the supply rooms were not
adequately stocked. On September 21, 2016, a Nurse Practitioner (NP1) emailed Complainant
and stated that medical supplies needed to be replenished, and she copied RN2 on the message.
Complainant responded only to NP1 that he had restocked the area several days ago. On
September 21, 2016, RN2 submitted a report of contact (ROC) to S5, documenting the existence
of expired medical supplies, that other supplies that needed to be replenished, and that some
supplies were inappropriately left on the counter instead of being placed in the proper areas. RN2
also stated that, although Complainant was responsible for regularly assessing inventory,
Complainant had told staff to email him when they needed more supplies. According to RN2,
Complainant had been rude or appeared indifferent when she had tried to address these issues,
and Complainant was compromising communication between Distribution and Primary Care. On
September 22, 2016, RN2 emailed Complainant to notify him that the entire stock of hand
sanitizer was expired. On September 22, 2016, Complainant responded that RN2 was not a
“team player,” stated that she was harassing him, complained that she should not be contacting
S5 without talking to him first, and accused her of bullying him. ROI at 541-42.

On November 9, 2016, S5 rated Complainant’s performance from July 10 through September 30,
2016, as “Outstanding” overall. S5 stated that, because he had only supervised Complainant for a
short time, he did not feel comfortable changing the “Outstanding” rating S1 had recommended
before his retirement. On November 10, 2016, S2 lowered Complainant’s rating for the customer
service performance element from “Exceptional” to “Fully Successful,” which resulted in the
overall rating changing from “Outstanding” to “Excellent.” S2 noted that, while Complainant’s
customer service was generally good, the incident with RN2 could not be overlooked. According
to S2, he did not take Complainant’s disability, age, or prior protected activity into account when
adjusting the rating. The record contains Complainant’s performance standards, which state that
one or more documented customer complaints during the rating period precludes a rating higher
than “Fully Successful” on the customer service element. S5 stated that S2’s adjustment of the
rating was justified.
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On November 16, 2016, Complainant emailed the VAPHS Director, his congressional
representative, his senators, and the president-elect, complaining that S2 lowered his
performance evaluation in retaliation for complaining about S2’s management style and for filing
the instant EEO complaint. On November 17, 2016, Complainant sent a letter to his
congressional representative about his performance appraisal. On December 2, 2016,
Complainant sent a letter to his congressional representative, again alleging that his performance
appraisal was retaliatory and that S2 and RN2 were subjecting him to a hostile work
environment.

On November 18, 2016, RN2 submitted a ROC to S5, reiterating that Complainant was failing to
regularly check and replenish medical supplies and stating that he continued to rely on staff to
request supplies and that he left supplies on the counter instead of placing them on the shelves.
RN2 noted that Complainant was communicating in a more professional manner. On December
22, 2016, RN2 submitted a ROC to S5 indicating that there was inadequate stock in the supply
room and that she had sent a nurse to another area to locate a nasal cannula, which could
potentially delay patient care. On December 22, 2016, Complainant emailed the Secretary of
Veterans Affairs, accusing RN2 of bullying and trying to intimidate him. On December 23, 2016,
RN2 submitted a ROC to S5, noting that a recent audit discovered expired medical supplies in
their inventory, including expired anticoagulation tubes. On January 4, 2017, RN2 submitted
another ROC, stating that the inventory still contained expired medical supplies, including
expired hand sanitizer.

On December 14, 2016, Complainant told S5 that he had an unspecified medical condition that
impacted his ability to push carts of medical supplies to other buildings when there was
inclement weather. Complainant defined inclement weather as snow, rain, or temperatures below
35 degrees. The Local Reasonable Accommodation Coordinator (RA1) requested medical
documentation. On January 10, 2017, Complainant was told to ask for help from the
Compensated Work Therapy (CWT) department when he was unable to complete deliveries
because of the weather until his request for accommodation was evaluated. On January 17, 2017,
Complainant submitted the requested medical documentation, which indicated that Complainant
had hypertension and diabetes with neuropathy. According to Complainant’s physician,
inclement weather can cause his blood sugar to increase and the neuropathy in his feet to worsen.
RA1 stated that on January 25, 2017, S5 approved Complainant’s reasonable accommodation
request.

On February 2, 2017, the CWT Coordinator informed management that Complainant could not
use CWT employees to make his deliveries, and management told Complainant to ask warehouse
staff for assistance with deliveries during inclement weather. On February 10, 2017,
Complainant told S5 and the Warehouse Manager (WM1) that he could not make needed
deliveries that day because of the weather. WM1 responded that he would deliver the supplies in
question. According to Complainant, management was not ensuring that his deliveries were
being made.

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On Monday, March 13, 2017, Complainant emailed the VAPHS Director, alleging that he had
asked warehouse staff to deliver supplies on Friday, March 10, 2017, but that the deliveries had
not been made. Complainant also alleged that warehouse staff expressed reluctance to make
deliveries on his behalf because it was outside of their job duties.

Complainant alleged that on February 16, 2017, he was outside during his lunch break when the
Lead Material Handler (C3) and a Pharmacy Purchasing Agent (C4) pulled up in a motorized
warehouse cart. According to Complainant, C3 said that it was “amazing” that Complainant was
outside before driving away. Complainant averred that he called C4, who told him that C3 said
that Complainant was not allowed to be outside in cold weather and that warehouse staff had to
make Complainant’s deliveries. Complainant alleged that C4 also said that C3 wanted to try to
get Complainant’s reasonable accommodation taken away. C4 stated that he could not hear what
C3 said to Complainant over the sound of the motor, but he characterized the exchange between
C3 and Complainant as not seeming noteworthy and as lasting about five seconds. According to
C4, he did not know that Complainant had a reasonable accommodation until Complainant called
him after he returned to the pharmacy area. C3 denied laughing at Complainant or referring to
his reasonable accommodation. S2 stated that when he heard about C3’s alleged comment about
Complainant’s reasonable accommodation, the Agency conducted a fact-finding investigation.
According to the record, on April 25, 2017, S6 decided not to discipline C3 as a result of the
fact-finding, but he reminded C3 that he should not talk about his coworkers’ disabilities.

Procedural History

Complainant initiated contact with an EEO Counselor on May 19, 2016. On June 20, 2016,
Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency
discriminated against him on the bases of disability (hypertension, diabetes with neuropathy),
age (56), and reprisal for prior protected EEO activity when:

1. On March 10, 2016, S2 yelled at Complainant regarding a matter involving the
temperature and the temperature/humidity gauge on the Heinz 1 North Unit;

2. On April 5, 2016, S2 suggested that Complainant told on him after RN1 disclosed
that S2 had questioned him about Complainant’s shortfalls;

3. On April 15, 2016, S2 came to Complainant’s section and intimidated him,
looking for things to complain about after Complainant had a walk-through with
S3;

4. On April 27, 2016, S2 advised the department by email that Complainant had
ordered too many straws;

5. On April 29, 2016, S2 called him and requested that Complainant enter a sick
leave request even though Complainant was in Employee Health and was not
required to use leave;
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6. On May 13, 2016, S4 called Complainant at home concerning an investigation
into problems in the service line and an AIB involving S2;

7. On August 3, 2016, S4 and S6 disclosed Complainant’s health and personal
medical information to C2;

8. On November 16, 2016, after S5 rated him “Outstanding” on his annual
appraisal, S2 did not concur with the rating and downgraded Complainant’s rating
to “Excellent”;

9. Beginning on or about January 25, 2017, S2 failed to ensure Complainant was
reasonably accommodated by not requiring coworkers to make Complainant’s
outdoor deliveries during inclement weather; and

10. On February 16, 2017, C3 drove past Complainant and commented that it was
“amazing” that Complainant was outside and laughed about it. Complainant later
learned that C3 said he was going to try to get Complainant’s reasonable
accommodation removed.

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 final decision.
The Agency requested a supplemental investigation. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the supplemental report of investigation and notice
of his right to request a hearing before an AJ. 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. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the final decision ignored his testimony, which established
that the Agency’s legitimate, nondiscriminatory explanations for its conduct were pretext for
discrimination. According to Complainant, he was abused by S2, and the fact that S2 was
abusive to some, but not all, of his coworkers undercuts the Agency’s argument that S2 was an
“equal opportunity abuser.” Complainant alleges that C1 was not really a coworker because she
was part of the CWT program and was a patient of VAPHS. Complainant argues that, because a
VA Police investigation did not substantiate the sexual harassment allegation, S2 subsequently
referring the matter to HR for investigation was improper. According to Complainant, the
Agency failed to ensure that he was accommodated during inclement weather. Complainant
requests that the Commission reverse the Agency’s final decision finding no discrimination and
award him substantial compensatory damages.

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The Agency makes no contentions in response to Complainant’s appeal.

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 Chap. 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”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that he was discriminated against when S2 asked him to submit a sick leave
request for April 20, 2016. The Agency’s legitimate, nondiscriminatory reason for asking
Complainant to submit the leave request was that S2, who was processing timecards while S1
was on leave, did not know that Complainant requested leave. As evidence of pretext,
Complainant argues that the request was part of a pattern of S2 retaliating against him for his
complaints. However, even to the extent that his complaints made before contacting an EEO
Counselor constituted protected EEO activity, we find that the preponderance of the evidence in
the record does not establish that the Agency’s legitimate, nondiscriminatory reason for asking
Complainant to request leave is pretextual.

Complainant also alleged that he was subjected to unlawful discrimination when S2 adjusted his
performance appraisal.

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The Agency’s legitimate, nondiscriminatory explanation for the rating is that RN2 had
complained about Complainant’s service, and the performance plan mandated that a Supply
Technician with at least one documented customer complaint could not receive a rating higher
than Fully Successful on the customer service element. Complainant cites the fact that his first-
level supervisors S1 and S5 rated him as Exceptional on all elements as evidence of pretext.
However, S1 retired before RN2 complained about Complainant, and S5 admitted that, although
he was reluctant to adjust Complainant’s rating because he was a new supervisor, S2’s
downgraded rating was justified. We find that the preponderance of the evidence in the record
does not establish that the Agency’s legitimate, nondiscriminatory reason is a pretext designed to
mask discriminatory or retaliatory animus.

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
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).

We find that Complainant has not established by the preponderance of the evidence that some
instances of alleged harassment occurred as alleged. We note that many of the allegations of
harassment in this complaint involve conflicts in witness testimony, and Complainant did not
produce any additional evidence to support his assertions. Complainant did not request a hearing
before an EEOC Administrative Judge, and, as a result we do not have the benefit of an
Administrative Judge's credibility determinations of the witnesses in this case. Complainant
bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory
acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See
Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013)
(complainant failed to establish that witnesses made false statements where he withdrew his
request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of
Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish
that his coworker made offensive comments in a “he said, she said” situation where complainant
requested a final decision and an Administrative Judge did not make credibility determinations).
For example, he alleged that S2 yelled at him about the digital gauge and talked to RN1 about his
performance, but S2 denied that he yelled at Complainant or discussed his performance with
someone outside of his supervisory chain.
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Complainant alleged that S4 called him at home on at least one occasion to discuss his AIB
testimony, but S4 denied discussing the AIB with Complainant. Complainant also alleged that
C3 laughed at him and told C4 that he would try to have Complainant’s reasonable
accommodation taken away, but C3 denied laughing or discussing the reasonable
accommodation, and C4 averred that he was unaware Complainant had a reasonable
accommodation until Complainant contacted him after the alleged incident took place.

Moreover, the alleged harassment is insufficiently severe or pervasive to constitute a hostile
work environment. Anti-discrimination statutes are not general civility codes designed to protect
against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty
annoyances between an alleged harasser and a complainant do not rise to the level of
harassment). Instead, EEO laws address discriminatory conduct that alters the work environment.
See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in
practical terms is that routine work assignments, instructions, and admonishments are by
definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial
epithet or otherwise engender a hostile work environment. Complainant v. Dep’t of State, EEOC
Appeal No. 0120123299 (Feb. 25, 2015). S2 asking why Complainant did not remove a digital
gauge as directed, inspecting storage areas, requesting that he return the excessive number of
straws, asking for a sick leave request when the timecard system had an exception, and
modifying his appraisal to reflect behavior in the workplace constitutes ordinary supervisory
oversight. Regarding Complainant’s allegation that it was inappropriate for S2 to refer C1’s
sexual harassment allegation to HR after the VA Police closed its investigation, the Commission
notes that an agency is legally obligated to investigate a claim of sexual harassment. See Rogers
v. Dep’t of Defense, EEOC Request No. 05940157 (Feb. 24, 1995). Accordingly, the
preponderance of the evidence in the record does not establish that Complainant was subjected to
a hostile work environment based on disability, age, and/or reprisal.

Denial of Reasonable Accommodation

Complainant alleges that he was denied a reasonable accommodation when S2 did not make sure
warehouse staff delivered supplies for him in inclement weather. In order to establish that
Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an
individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency
failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act (RA
Guidance), No. 915.002 (Oct. 17, 2002).

An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p).

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“The term “qualified,” with respect to an individual with a disability, means that the individual
satisfies the requisite skill, experience, education and other job-related requirements of the
employment position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
When an employee's disability or need for an accommodation is not known or obvious, an
employer may ask an employee for reasonable documentation about his or her disability,
limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability-
Related Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (Inquiry Guidance), Question 7 (July 27, 2000).

Complainant cited two instances where he had trouble finding someone to make his deliveries.
On February 10, 2017, Complainant told WM1 that he needed supplies delivered, and the record
reflects that WM1 quickly responded and delivered the supplies himself. With respect to
February 10, 2017, we find that Complainant was not denied an accommodation. On March 13,
2017, Complainant complained that warehouse staff had not yet delivered supplies that he asked
to be delivered on March 10, 2017, and he generally alleged that delayed deliveries could affect
his relationship with customers. We do not find that Complainant was denied an accommodation
when the requested delivery was delayed over the weekend, because Complainant was not
required to make the delivery himself in inclement weather and because he was not penalized for
the delivery not being made on Friday, March 10, 2017. Therefore, Complainant has not
established that he was denied a reasonable accommodation.

Improper Disclosure of Medical Information

Complainant alleged that S4 and S6 improperly disclosed his medical information to C2. 29
C.F.R. § 1630.14(c)(1) provides, in pertinent part, that: “Information obtained . . . regarding the
medical condition or history of any employee shall . . . be treated as a confidential medical
record.” By its terms, this requirement applies to confidential medical information obtained from
“any employee,” and is not limited to individuals with disabilities. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01A00132 (April 13, 2000). The Commission has noted that the
Americans with Disabilities Act of 1990 (ADA), as amended, prohibits the disclosure of medical
information except in certain limited situations. Inquiry Guidance at 4; see also RA Guidance at
Question 42. The limited exceptions to the confidentiality requirements are: (1) supervisors and
managers may be told about necessary restrictions on the work or duties of the employee and
about necessary accommodations; (2) first aid and safety personnel may be told if the disability
might require emergency treatment; and (3) government officials investigating compliance with
the ADA must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1).

We find that Complainant has failed to establish by the preponderance of the evidence that S4
and/or S6 improperly disclosed his medical information to C2. Although Complainant alleged
that they did so, S4, S6, and C2 all denied that any medical information was disclosed, and
Complainant has not provided any evidence to substantiate his allegation. As discussed,
Complainant does not meet his burden of proof when the evidence is, at best, equipoise.

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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 final decision because the
preponderance of the evidence in the record does not establish that discrimination occurred.

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.
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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

September 11, 2019
Date