Ted L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 10, 2019

0120181816 (E.E.O.C. Apr. 10, 2019)

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

Ted L.,1
Complainant,

v.

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

Appeal No. 0120181816

Agency No. 200H06322015101417

DECISION

On March 18, 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 8, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant,
GS-6 at the Agency’s Northport Healthcare System facility in Northport, New York.

On February 10, 2015, Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment on the bases of race (white) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964. In his complaint, Complainant
named his former supervisor (Supervisor 1) (African-American, aware of Complainant’s prior
EEO activity), his current supervisor (Supervisor 2) (African-American, aware of Complainant’s
prior EEO activity), and his second line supervisor (Associate Chief Nurse) (white, aware of
Complainant’s prior EEO activity) as the responsible management officials. In support of his
hostile work environment claim, Complainant alleged the following events occurred:

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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1. Since September 2013, Complainant has been denied payment for overtime
worked.
2. From July 2014 through August 2014, Complainant was required to perform the
work of his coworkers.
3. In August 2014, Complainant was issued a proposed seven-day suspension.
4. On December 31, 2014, Supervisor 2 issued him a memorandum regarding
inappropriateness.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to harassment as alleged.

The instant appeal followed.

ANALYSIS AND FINDINGS

As an initial matter, we address Complainant's assertion, for the first time on appeal, that he
asserted a class complaint. The Commission has generally held that complainants cannot raise
class issues for the first time on appeal. Therefore, we will not address this matter herein. See
Milano v. Social Sec. Admin., EEOC Appeal No. 01A40985 (March 10, 2005); request to
reconsider denied, EEOC Request No. 05A50732 (April 26, 2005) (complainant's argument that
the Commission should establish a class action based on the Agency's promotion policy for
managers was raised for the first time on appeal and was not properly before the Commission).
We now turn to the substance of the Agency's final decision.

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”).

It is well-settled that harassment based on an individual’s race and/or prior EEO activity is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under those bases, the complainant must show that: (1) he belongs to the
statutorily protected class and/or engaged in prior EEO activity; (2) he was subjected to
unwelcome conduct related to his membership in that class and his prior EEO activity; (3) the
harassment complained of was based on race and/or prior EEO activity; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance and/or creating an
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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).

In other words, 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 a protected basis – in this case, his race or retaliatory
animus. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.

Upon review of the record, we find that Complainant has not established, by a preponderance of
the evidence, that the disputed events either occurred as he claimed or that were motivated in any
way by his race and/or prior EEO activity.

The Supervisor explained as to event (1) that employees who worked overtime are compensated
by receiving payment for the hours of overtime worked. The Supervisor and other management
officials denied that Complainant had any unpaid overtime hours. In support of the Supervisor’s
assertion, the Agency provided copies of Complainant’s time and attendance as well as payroll
information which do not support Complainant’s assertion that he was not paid for overtime that
he worked.

With respect to event (2), Complainant asserted that, from July 2014 to August 2014, he was
required to perform the work of his black coworker. He summarily stated that white employees
are forced to do black employees work. Complainant stated that black employees come in late,
are out for breakfast, go on smoke breaks, sleep on the job, and do not have to push patients for
appointments. While Complainant asserted that this has been going on for twenty year, he failed
to provide any additional specificity or explanation. Moreover, beyond his bare assertions,
Complainant provided no evidence to support his claims of disparate treatment.

In response to event (3), the Supervisor and other management officials denied that Complainant
was issued a proposed suspension in August 2014. Complainant has not produced any evidence
to the contrary.

With respect to event (4), Supervisor 2 averred that Complainant was issued the memorandum
because Complainant acted beyond the scope of his practice on three occasions when using the
Computerized Patient Record System (CPRS). She indicated that Complainant had utilized the
Advance Directive note tile. As a result, she recommended additional education on the
documentation in CPRS for Complainant on the use of the Advance Directive note tile. With
this explanation, we find that the Agency provided legitimate, nondiscriminatory reasons for the
actions alleged in event (4). Further, Complainant failed to show that the Agency’s reason for
event (4) was pretext.

In sum, we conclude that Complainant failed to establish that he was subjected to a hostile work
environment in violation of Title VII.
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We note Complainant provided no evidence that the alleged events (1), (2) or (3) occurred as he
asserted. Further, he did not show that the Agency’s proffered reasons for event (4) was pretext
for discrimination. In addition, he summarily argued without evidence that his race and prior
protected activity was the reason for the alleged harassment. Accordingly, we conclude that the
Agency’s final decision correctly held that Complainant did not establish that he was subjected
to a hostile work environment in violation of Title VII.

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.

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.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 10, 2019
Date