Rufus G.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120141652 (E.E.O.C. Feb. 23, 2017)

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

Rufus G.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120141652

Agency No. 200P-0554-2013100598

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 28, 2014, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Food Service Worker within the Eastern Colorado Health Care
System in Denver, Colorado. On December 21, 2012, Complainant filed an EEO complaint in
which he alleged that his third-line supervisor, the Chief of the Nutrition Service (CNS),
subjected him to harassment because of his national origin (Hispanic – Puerto Rican), religion
(Pentecostal), and disability (anxiety and depression) between July and December 2012. He
identified the following twelve incidents in support of his claim:

1. On July 15, 2012, Complainant was informed that he was required to go into a 32-
degree refrigeration unit, which resulted in a failure to accommodate his medical
conditions;

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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2. On July 26, 2012, the CNS pressured Complainant into asking why he was not
following orders and refusing to enter the refrigeration unit;

3. On July 27, 2012, the CNS gave Complainant a letter identifying the results of a
fact-finding conference initiated from reports of contact submitted by his first and
second-line supervisors, but refused to give him a copy of those reports;

4. On August 12, 2012, the CNS refused to allow Complainant to take four hours of
annual leave and threatened to charge Complainant with absence without leave
(AWOL) if he did not report for duty as scheduled;

5. On an unspecified date in August 2012, the CNS refused to take action on
Complainant’s allegation that he was threatened by a coworker;

6. On an unspecified date in August 2012, the CNS had him reassigned to work in the
laundry facility;

7. On September 6, 2016, the CNS changed Complainant’s tour of duty;

8. On an unspecified date in September 2012, the CNS had Complainant reassigned to
grounds maintenance without a change in his position description;

9. On an unspecified date in September 2012, after he had been reassigned as a
Grounds Worker, he was not paid for that job function;

10. On October 19, 2012, Complainant was issued a notice of removal effective
October 23, 2012;2

11. On an unspecified date in November or December 2012, someone in the Human
Resources Management Service attempted to prevent Complainant from receiving
unemployment benefits; and

12. On an unspecified date, HRMS made fun of Complainant’s religion by telling him
to “get out of the VA go and build a church.”

Regarding incidents 1 and 2, Complainant presented a doctor’s note dated April 3, 2012,
which indicated that he was being treated for major depressive and general anxiety disorder.
Investigative Report (IR) 316. He admitted, however, that he was able to perform all the
essential functions of his position as a Food Service Worker without restriction. IR 163-64.

2 The Agency accepted and processed the allegation as a mixed-case complaint, but included
the proposed removal dated September 4, 2012, as a part of Complainant’s harassment claim.
IR 70.
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He averred that the CNS, as well as his first- and second-line supervisor, threatened him when
he objected to having to go into the refrigeration unit. IR 165-67. When asked by the
investigator why he refused to go into the refrigerator, Complainant averred that he was
entitled to differential hazard pay. IR 166-67. The CNS, the Health Care System Director
(HCSD), and a Human Resources Management Specialist (HRMS) all averred that going into
the refrigeration unit to retrieve meals for patients was part of his routine duties as a Food
Service Worker, that he was offered a coat and hat as a shield against the cold, and that he
never provided his supervisors with medical documentation of any condition that required him
to avoid exposure to cold temperatures. IR 183-84, 193, 202-03.

As to incident 3, when asked by the investigator what the fact-finding conference was all
about, Complainant replied that he did not know. IR 168. The CNS averred that when
Complainant requested to see the reports of contact, she informed him that it was the policy of
the Human Resources Office not to give the reports of contact directly to the employee who
was the subject of the fact-finding. Rather, the employee could ask his union representative to
obtain the reports of contact from the Human Resources Office. IR 184. The HRMS averred
that Complainant received the reports through the prescribed process, just not when he
demanded them. IR 203-05.

With respect to incident 4, Complainant averred that the CNS refused to grant him the annual
leave that he had requested for a medical appointment. IR 168-69. The CNS and the HRMS
responded that although she was able to grant Complainant four hours of sick leave, she could
not grant him four additional hours of annual leave because the Food Service Staff was
extremely short-handed that day. The CNS averred that she warned Complainant that he would
be charged with AWOL if he did not report for duty as scheduled. IR 185, 205.

Regarding incident 5, Complainant averred that the CNS ignored his complaint about being
threatened by a coworker. IR 169-70. The CNS responded that she obtained a report of
contact from the employee who was involved in the altercation with Complainant and from
another employee who had witnessed the entire event. She noted that the witnesses’ statements
were taken at separate times and in separate places, and that neither statement matched
Complainant’s claim that he was threatened. The CNS averred that, based on the two reports
of contact, she determined that Complainant had not been threatened and that no further
investigation was warranted. IR 185.

As to incident 6, Complainant averred that the CNS reassigned him to work in the laundry,
which entailed washing hospital garments that were contaminated with urine, vomit, diarrhea,
excrement, and blood, that he was required to wear gloves, and that he was entitled to the
differential hazard pay that he had won in an arbitration case in Puerto Rico. IR 170-71. The
CNS averred that she received numerous reports from other employees on the Food Service
staff that they were afraid of Complainant, and that some of those employees were calling in
sick for that reason. She further stated that she consulted with Human Resources who
recommended that he be reassigned. IR 185-86. The HRMS averred that he recommended
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this course of action due to what he had characterized as Complainant’s “toxic” relations with
other employees. IR 205-06.

With respect to incidents 7, 8, and 9, a letter to Complainant dated September 4, 2012, and
signed by the CNS, stated that Complainant was temporarily reassigned to the Facilities
Management Service. IR 264. Complainant averred that the laundry was worse than the
refrigerator, and that he was glad to be reassigned to the grounds-keeping function. IR 171.
When asked whether the grounds-keeping position was different than the Food Service position
he was hired into, Complainant replied that he did not know. IR 171-72. Complainant also
averred that he should have received different pay because he was doing different work than he
had in his previous position. IR 182.

The CNS averred that after the reassignment, she was no longer in Complainant’s supervisory
chain, that he would be assigned work in that area as needed, and that she did not know
whether there was a difference in the description of the job to which he had been transferred.
IR 185-86. The CNS also averred that she did not believe that there was a difference in the
salaries of his then-current and previous positions. IR 186. The CNS noted that when
Complainant was informed that his start time would be moved up a half hour from 6:30 a.m.
to 6:00 a.m., he became very angry. IR 186. The HRMS averred that in his temporary
position, he was assigned work on an as-needed basis, and that because the assignment was
temporary, his official position description had not been changed. He reiterated that the
change was made because of Complainant’s deteriorating relationships with his coworkers in
the Food Service. IR 206-07.

Regarding incident 10, on September 4, 2012, the same day Complainant was temporarily
reassigned to Facilities Management, the CNS issued him a notice of proposed removal.
Charges supporting the proposal included disrespectful conduct, lack of candor, failure to
follow supervisory instructions, and AWOL. Each charge included multiple specifications. IR
265-69. On October 19, 2012, the Healthcare System Director issued a decision sustaining the
proposed removal upon the recommendation of the CNS. IR 187, 195, 208, 252.

With respect to incident 11, Complainant averred that he received a letter that stated he was
going to be approved for unemployment benefits, but that the Agency never answered the
Department of Labor regarding his claim. He admitted, however, that the Department of
Labor did approve his claim. IR 173-74.

Finally, regarding incident 12, Complainant averred that the HRMS made the remark in
question but did not specify a date. IR 171, 174. The HRMS denied that he ever had a
conversation with Complainant about religion. IR 208-09.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a final Agency decision without a hearing. In accordance with
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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.

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 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”).

Harassment of employees that would not occur but for their membership in statutorily
protected groups is unlawful if sufficiently patterned or pervasive. Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (August 14, 1998). To establish a claim of
harassment 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
classes; (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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

After reviewing the record in its entirety, we find that the CNS and the HRMS articulated
legitimate and nondiscriminatory reasons for each of the incidents that comprised
Complainant’s claim of discriminatory harassment. When asked by the investigator why he
believed that his religion was a factor in the above-referenced incidents, Complainant replied
that he did not think that his religion was a factor. When asked whether he believed that his
Puerto Rican national origin was a factor in those incidents, he admitted that the CNS never
mentioned his national origin, and consequently, that he did not know. When asked why he
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believed that his disability was a factor, he averred that he had told the CNS on an unspecified
date that he was running out of medication and needed to see a psychiatrist. IR 174-176.

Apart from his assertion that he told the CNS about his psychiatric disability, Complainant has
not presented any sworn statements from himself, sworn statements from other witnesses, or
documents which contradict the explanations provided by the CNS and the HRMS, or which
call their veracity into question. We find that Complainant has not shown that any of the
Agency’s actions were based on his protected classes. We therefore find, as did the Agency,
that Complainant has not proven his claim of discriminatory harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against or harassed as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

February 23, 2017
Date