Rolf K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120182416 (E.E.O.C. Dec. 11, 2018)

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

Rolf K.,1
Complainant,

v.

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

Appeal No. 0120182416

Agency No. 200I-0621-2017102461

DECISION

On July 6, 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
June 22, 2018 final decision concerning an equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Medical Administrative
Assistant/Medical Administrative Officer of the Day, GS-9 in Mountain Home, Tennessee.

On June 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (arm paralysis and weakness) and age (48) when:

1. He was subjected to a hostile work environment when, on February 14, 2017, the
Agency’s Assistant Chief Business Officer sent Complainant a text message
asking, “where are you, why aren’t you here?” while Complainant was at a
scheduled doctor’s appointment. On the same day, Complainant telephoned the
Assistant Chief Business Officer to inform her that he had a doctor’s appointment,

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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and she became angry and stated, “you left the Transfer Coordinator alone,” and
hung up the telephone.

2. On February 14, 2017, he was denied sick leave when he did not include thirty
minutes to renew his PIV badge.

In a partial dismissal decision dated August 10, 2017, the Agency dismissed Complainant’s
hostile work environment claim as identified in claim 1 for failure to state a claim in accordance
with EEOC Regulation 29 C.F.R. §1614.107(a)(1).

Following the Agency’s investigation into claim 3 of the instant matter, 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
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), finding no discrimination.

This appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment – Sick Leave Denial

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
must first establish a prima facie 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 Department 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); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981). 2

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination.

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Regarding Complainant’s claim that the Agency denied him sick leave when he failed to include
time to renew his PIV badge, the record indicates that the Assistant Chief Business Officer
initially denied Complainant’s request for sick leave because Complainant did not request leave
in advance of his appointment as required by Agency policy. According to the Assistant Chief
Business Officer, Complainant initially submitted his leave request nine hours after his shift
began. Moreover, in the leave request, Complainant did not include the day or time he would
need to renew his PIV badge before returning to work. The record indicates that once
Complainant amended his leave request to include all the time he was away from his desk, the
Assistant Chief Business Officer approved it immediately.

Even assuming arguendo that Complainant established a prima facie case of discrimination on
any alleged basis, the record shows that the responsible management official articulated
legitimate, nondiscriminatory reasons for the matter at issue. Complainant failed to prove, by a
preponderance of the evidence, that the proffered legitimate reasons were actually pretext
designed to mask discrimination.

Hostile Work Environment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1936), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 733 (1993): “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment’.” Following a review of the record, we
find that viewing the allegations in claim 1 together with claim 2, and assuming it all occurred as
alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment.
Significantly, the events at issue occurred all on the same date and concerned Complainant’s
request for leave on that date, a request which was later approved. The actions alleged, without
more, are simply insufficiently severe or pervasive to state a valid hostile work environment
claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.

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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.

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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

December 11, 2018
Date