Walter W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 26, 2020

2019001574 (E.E.O.C. May. 26, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Walter W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001574 Agency No. 200I03222017104891 DECISION On January 16, 2019, 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 December 13, 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. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment, based on race, sex, disability, age, and in reprisal for prior protected activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Counselor, GS-0101-12 at the Agency’s Vocational Rehabilitation and 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. 2019001574 2 Employment Office in Daleville, Alabama. Complainant retired from the Agency, effective August 31, 2017. Complainant has medical conditions related to his right wrist, nasal/sinus area, and spine, which are permanent. Complainant averred that his conditions result in pain, swelling, loss of use of the right hand, anxiety, and depression. Complainant added that he is limited in concentration, memory, and mental functioning. During the formal complaint stage, Complainant asserted that he underwent five surgeries in 2015 and early 2016. Complainant stated that upon his return to work following surgery, he was overwhelmed and unable to catch up with documentation or missed work. Complainant contended that management officials made no effort to reduce his caseload like they offered to others. Complainant averred that counselors typically undergo one to four quality reviews per month. However, Complainant stated that in the last quarter of 2016, management officials requested 14 cases from him in less than 30 days. Complainant alleged that none of the files were returned for his review or rebuttal, which violated Agency regulations. On January 23, 2017, Complainant’s first-line supervisor (S1) issued Complainant a letter of reprimand. The letter of reprimand charged Complainant with poor judgment and failure to disclose material facts. Regarding poor judgment, the letter of reprimand stated that on or around March 30, 2016, Complainant established an internet and residential phone account with CenturyLink for a veteran using his government purchase card. According to the letter of reprimand, the evidence of record revealed that the account was established using Complainant’s name and social security number for credit worthiness, which violated professional ethics for rehabilitation counselors. Specifically, the letter of reprimand indicated that the Commission on Rehabilitation Counselor Certification: Code of Professional Ethics for Rehabilitation Counselors states that rehabilitation counselors will discuss and establish boundaries with individuals on their caseloads. The letter of reprimand went on to state that with respect to the failure to disclose material facts, Complainant failed to provide written responses or provided contradictory statements when asked about purchase card transactions between September 28, 2016 and December 13, 2016. The letter of reprimand concluded with a statement that it would be placed in Complainant’s official personnel folder for three years, subject to withdrawal and destruction after two years, depending on Complainant’s future behavior and attitude. On May 19, 2017, the Agency rescinded the letter of reprimand, noting that it was due to a technical error. On May 24, 2017, Complainant’s third-line supervisor (S3) reissued the letter of reprimand. The letter of reprimand stated the same charges and description of those charges as discussed in the January 23, 2017 letter of reprimand. However, this letter of reprimand stated that it would remain in Complainant’s official personnel folder for up to two years, subject to withdrawal and destruction after one year, depending upon Complainant’s future behavior and attitude. On June 1, 2017, Complainant contacted an Agency Human Resources Specialist regarding his intent to retire. 2019001574 3 Specifically, Complainant stated that he planned on retiring on August 31, 2017; and requested information regarding leave based on estimates provided months earlier, waiver of military retirement, health care, and other benefits. On August 1, 2017, Complainant informed the Agency Human Resources Specialist that he was scheduled to have surgery on August 7, 2017. Complainant stated that he would use sick leave through August 31, 2017. Complainant also questioned whether he could utilize sick leave on August 30, 2017, and return on August 31, 2017, to out-process. Complainant concluded that he would request leave for August 31, 2017, and change it based on feasibility. Shortly thereafter, Complainant emailed S1 informing her that he had changed his leave to begin on August 7, 2017, and he could return during the last week of August for one or two days to out-process. Complainant added that he could also “just take it all [sick leave]” and requested that S1 “let [him] know.” On August 1, 2017, the Human Resources Specialist notified Complainant that his supervisor could out-process for him as long as his equipment and credit cards were returned. Complainant forwarded this information to S1, which was shared with S3. On August 3, 2017, S3 redistributed Complainant’s caseload to his team. S3 instructed Complainant to sort through his cases prior to his departure on the following day to assist his coworkers in identifying the cases that they would be receiving. On August 4, 2017, the Counselor-in-Charge collected Complainant’s office keys, government- issued computer, PIV card, and government purchase card. Complainant retired from the Agency on August 31, 2017, with an explanation that he was retiring to obtain retirement benefits. On October 20, 2017, Complainant filed an EEO complaint alleging: 1. That the Agency subjected him to a hostile work environment on the bases of race (Caucasian), sex (male), disability (mental and physical), age (DOB: 1957), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: a. On July 26, 2016, Complainant learned that 14 of his assigned cases were reviewed for quality control, more than double the normal amount, and he was held responsible for any errors in the files, but was not allowed to review or rebut the findings of the audit; b. On May 24, 2017, Complainant was reissued a letter of reprimand; c. On August 7, 2017, after Complainant had previously submitted his request to retire early and requested sick leave to cover a period during which he was 2019001574 4 scheduled to have surgery, S3 asked him to turn in his work keys before going on sick leave; d. On or about August 9, 2017, Complainant learned that S3 went to Complainant’s office in his absence “and completely went through everything…to gather information without any other witness or representative for [Complainant] present.” 2. That he was constructively discharged based on race (Caucasian), sex (male), disability (mental and physical), age (DOB: 1957), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he retired, effective August 31, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Regarding claim 1, the Agency determined that the events described in 1(b) through (d) occurred essentially as alleged. However, the Agency found that event 1(a) did not occur as Complainant alleged. For claim 1(a), the Agency found that Complainant failed to show by a preponderance of the evidence that management’s actions were materially different from standard procedures. The Agency concluded that the proven conduct for Complainant’s harassment claim did not amount to discriminatory harassment. The Agency further determined that Complainant failed to establish a prima facie case of harassment because the actions he described were not personally denigrating, insulting, or demeaning in nature. The Agency found that the incidents that occurred fall within the range of ordinary employment actions that can reasonably be expected to occur in a typical workplace. Additionally, the Agency determined that the record lacks sufficient evidence to establish a link between Complainant’s age, sex, race, disability status, or prior activity and the incidents of alleged harassment. The Agency found management articulated legitimate, non-discriminatory reasons for its conduct and further determined that Complainant failed to show that management’s explanations were pretext. Finally, the Agency decided that Complainant failed to show that the alleged harassing conduct was sufficiently severe or pervasive to constitute an objectively hostile work environment. In doing so, the Agency stated that the conduct occurred on only a few occasions over a period of nearly 13 months, and was not egregious, patently offensive, or unusual for a typical workplace. The Agency concluded that Complainant’s allegation of hostile environment harassment consists of dissatisfaction with job-related events and conduct that does not rise to the level of harassment. 2019001574 5 Regarding Complainant’s constructive discharge claim, the Agency found that because the conditions described by Complainant failed to meet the hostile work environment standard for harassment, those conditions could not meet the standard for “intolerable working conditions” required for constructive discharge. The Agency provided Complainant with appeal rights to the Commission regarding Complainant’s claim of harassment, claim 1(a)-(d). However, as to claim 2, the Agency provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB) on his claim of constructive discharge. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency incorrectly determined that he had a mixed case because there is a constructive discharge claim. Complainant argues that the Agency failed to present an analysis of the facts leading to the conclusion that a constructive discharge claim falls within Merit Systems Protection Board (MSPB) jurisdiction and not EEOC jurisdiction. Complainant contends that the Agency applied an incorrect and limited understanding of harassment and a hostile work environment. Complainant argues that the standard used by the Agency excludes harassment in the form of work-related actions, such as “hyper-monitoring, excessive workload, or unfair treatment.” Complainant adds that the Agency’s standard is misplaced to require insulting denigrating or intimidating conduct. Complainant asserts that the Agency incorrectly concluded that incidents presented in his harassment claim were not harassment. Complainant further contends that the Agency erroneously determined that his constructive discharge claim failed based on the finding that there was no hostile work environment or harassment. In response, the Agency contends that Complainant failed to demonstrate that the FAD contained a legal error sufficient to warrant reversal. The Agency argues that Complainant further failed to present a legally cognizable argument that the Agency erred regarding his hostile work environment claim. The Agency reiterates that Complainant failed to identify allegations of harassment that were sufficiently severe or pervasive; and Complainant did not identify evidence to show that the alleged hostile work environment was connected to his protected bases. 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 2019001574 6 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”). ANALYSIS AND FINDINGS Constructive Discharge - Claim 2 As an initial matter, we address Complainant’s contention that the Agency improperly classified his constructive discharge claim as a mixed case complaint. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. § 1614.302(b). As a general matter, if Complainant is dissatisfied with the Agency’s final decision on a mixed case complaint, Complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency’s final decision. 29 C.F.R §1614.302(d)(1)(ii). In this instance, the final decision properly gave Complainant mixed case appeal rights for claim 2 and instructed him to file with the MSPB, not the EEOC. Complainant, however, filed his appeal from the Agency’s final decision on a mixed case complaint with the EEOC. Therefore, Complainant’s constructive discharge claim is dismissed. Hostile Work Environment - Claim 1 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). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that Title VII is not a civility code. 2019001574 7 Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Regarding claim 1(a), while the record reflects a discrepancy in the date that it occurred, the record evidence indicates that on August 15, 2016, Complainant was asked to submit extra files for his third quarter local QA review. ROI, at 210. The email indicated that some of the pulled files had already been reviewed and requested that Complainant send “5 entitlement cases and 3 RSD cases.” Id. Complainant noted that this equaled a total of 14 files pulled. Id. Although Complainant asserted that 14 cases were pulled in less than 30 days, it appears the files represented the entire third quarter, which does not deviate greatly from Complainant’s assertion that one to four files were pulled per month. Id. Fourth quarter records show that six of Complainant’s cases were pulled in the last quarter of 2016, which was no greater than the number pulled for other counselors. Id. at 211. Nevertheless, management officials affirmed that the Office of Performance Analysis and Integrity (OPAI) randomly selects a sample of cases for each of the Regional Office’s monthly and quarterly reviews. ROI, at 92, 110. Complainant’s second-line supervisor (S2), the Assistant Vocational Rehabilitation and Employment Officer, explained that OPAI selects a list of cases to be reviewed on the local level and posts the lists each month on a SharePoint site. Id. at 110. Once the list is retrieved, it is forwarded to counselors and they are given five to seven days to submit cases for review. Id. S2 averred that Complainant completed the year with 19 of the required 24 case reviews required under national performance standards. Id. at 111. For claim 1(b), management officials explained that the letter of reprimand was reissued due to a technical error. ROI, at 93, 96, 112. A review of the record shows that the letters of reprimand differed in the length of time the reprimand would remain in Complainant’s official personnel file. Id. at 169-172. With respect to the issuance of the letter of reprimand, Complainant acknowledged that he exercised poor judgment in opening the account for the veteran. Id. at 208. With respect to claims 1(c) and (d), S3 stressed that Complainant did not mention that he would return to the office “to finish shredding and straightening up the office a little more.” ROI, at 93. S3 asserted that a Human Resources Specialist told Complainant that his supervisor could out- process for him and Complainant confirmed his intent, via email, to take sick leave through August 31, 2017. Id. at 94. S3 stated that, on August 1, 2017, Complainant contacted his supervisor and provided confirmation that he did not have to report for the purpose of out-processing. Id. Complainant’s coworker affirmed that S1 instructed him to receive Complainant’s office keys, PIV card, and laptop. ROI, at 83. S3 maintained that other employees out-processed in the same manner as Complainant. Id. at 94. S3 averred that she visited the Daleville office in response to Complainant’s coworkers contacting her about files they were unable to locate and unassociated mail/correspondence in Complainant’s office. Id. at 95. 2019001574 8 Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment. We find that the complained of conduct did not have the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 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. 2019001574 9 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 May 26, 2020 Date