EEOC Appeal 2020000556

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darrell K.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020000556
Hearing No. 420-2019-00069X
Agency No. 200I-0521-2017105083
DECISION
On October 15, 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
September 13, 2019, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply
Technician at the Agency’s Birmingham VA Medical Center facility in Birmingham, Alabama.
On December 26, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment the bases of race (Caucasian), disability (physical), and age
since August 21, 2016, as evidenced by, but not limited to, the following actions:
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. 	Complainant was issued a defective key card to gain entry to his workplace;
2. 	Subjected to numerous inappropriate comments and name calling;
3. 	Repeatedly humiliated in front of co-workers;
4. 	Only allowed one break per day, which was early in the mornings, and five minutes
after dressing in his protective gear;
5. 	Accused of chewing tobacco and having body odor;
6. 	Subjected to examinations of mouth;
7. 	Reassigned to work under the Lead Medical Technician (Lead Technician);
8. 	Failure to provide a functioning computer and made to wait until another
employee’s was available to complete work; and
9. 	Required to wait until another employee’s computer was available to computer was
available to complete his work.
Complainant also alleged that the Agency subjected him to discrimination based on race, age, and
disability, when, effective August 10, 2017, he was terminated during his probationary period.
The Agency accepted the complaint and conducted an investigation which produced the following
pertinent facts.
Complainant attested that, regarding his alleged disability, he was a cancer survivor and he also
lacked immunity to mumps, tuberculosis, or hepatitis b. He attested that he had difficulty
concentrating as a result of chemotherapy. He attested that he could perform the major duties of
his job if he was not being harassed and the radio was not too loud. However, he also attested that
his medication can cause very strong body odor and bad breath, as well as cognitive problems, loss
of concentration, and loss of focus. He attested that the vaccinations for hepatitis b can cause him
to have insomnia and occasional confusion. However, he also attested that he had no work-related
restrictions.
Complainant’s first-line supervisor (Supervisor1) attested that she was unaware of Complainant’s
disability and that Complainant had not provided management with any documentation regarding
his disability. The Lead Technician attested that she was unaware of Complainant’s disability.
Complainant attested to his harassment allegations. He attested that, for a year, his ID card would
not work to let him in the door, requiring him to have to stand in the hall and wait for someone to
come and let him in or ring the buzzer. He attested that this infuriated the people who had to answer
the buzzer and it was a source of constant ridicule. He attested that this happened about eight times
per day and it was frustrating having to answer the question of why he did not have a key that
worked.
Supervisor1 explained that Complainant was issued an access card, but he informed her that it
would not open the door coming into the department. She further explained that she asked him to
check it daily and she requested to have his card activated. She was informed by email that the
requested access had been granted.

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Complainant attested that he was repeatedly humiliated in front of co-workers. He attested that he
was repeatedly referred to as “Father Time” and this was followed by laughter. He attested that
the Lead Technician talked to him as if he were a two-year old, talked down to him, and corrected
him in front of a crowd. He described an incident during meeting, when the Lead Technician
announced that everyone would be working on a particular project except for Complainant and
everyone laughed.
Complainant attested that his reassignment to working under the Lead Technician was harassing
and stressful. The Lead Technician denied knowledge of Complainant’s allegations.
Supervisor1 attested that she was not aware of the alleged inappropriate comments and name
calling. Regarding the reassignment, Supervisor1 attested that Complainant was assigned to work
with 	all 	employees 	during 	his 	orientation/probationary 	period. 	She 	further 	attested 	that
Complainant was assigned to every area within the department, as were all employees.
Complainant attested as to only being allowed one break per day, early in the morning, five minutes
after dressing in his protective work gear. Supervisor1 attested that she was not aware Complainant
was not taking his scheduled breaks. Supervisor1 explained that all employees are allowed two
fifteen-minute breaks, one in the morning and another in the afternoon; a thirty-minute lunch; and
ten minutes before and after their shift to change into/out of scrubs. She attested that Complainant
mentioned the issue and she told him that he should takes his breaks as scheduled, based on the
area that he is assigned.
Complainant attested that Supervisor1 told him that some of his co-workers complained that he
had body odor. He described one day when Supervisor1 asked approached him and asked if was
chewing tobacco and, when he replied that he was not, told him to open his mouth. Complainant
also attested that Supervisor1 performed a search of his mouth and found nothing on two occasions.
Supervisor1 denied knowledge of these allegations.
Complainant attested that, when the workstation he used was unable to print, he had to use another
workstation, waiting for co-workers to log off and leave before he could do his printing. He attested
that he was unfairly judged as being slow.
Supervisor1 explained that there are no assigned workstations and there are seven workstations,
with an average of four people in the prep area. She further explained that, although the workstation
Complainant chose to use had stopped printing, he could have used other available computers.
Complainant attested that, on August 10, 2017, he was informed that he was being terminated. He
attested that this was after the alleged harassment and after he was told that he was not immune to
hepatitis b, which would have required a reasonable accommodation. He also attributes his
termination to his reassignment.

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Supervisor1 attested that she submitted the paperwork regarding Complainant’s performance to
Human Resources during his orientation/probationary period. Human Resources approved
termination based on Complainant’s job performance during his probationary period.
A Human Resources Specialist attested that Complainant had been counseled as to his performance
on June 23, 2017.
A July 19, 2017 letter from Supervisor1 to Human Resources requests a review for termination for
Complainant 	during 	his 	probationary 	period. 	It 	documents 	Complainant’s 	performance
chronologically, 	describing 	his 	work 	performance 	as 	demonstrating 	minimal 	skills 	and
understanding of the required processes.
An August 9, 2017 letter from the Chief, Human Resources Management Service, indicates that
Complainant was being terminated on August 10, 2017. It notes that Complainant was hired under
a career conditional appointment, beginning August 21, 2016, and was subjected to a one-year
probationary/trial period. It also provides that Supervisor1 recommended that Complainant be
terminated during this period for unsatisfactory performance.
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 timely requested a hearing.
When the Agency/Complainant did not object, the AJ assigned to the case granted the Agency’s
May 10, 2019, motion for a decision without a hearing and issued a decision without a hearing on
September 3, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. In response, the Agency asks that we affirm its final decision.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). 	In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.

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If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate.
In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. 	While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For the reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could
not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary
judgment.
Harassment Claim
Complainant has alleged the Agency subjected him to harassment, noting several alleged
instances. In considering whether the alleged actions, whether individually or collectively,
constitute harassment, the Commission notes that, in Harris v. Forklift Systems, the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is
actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of
the complainant's employment See EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant
must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on the statutorily protected class; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment,
the conduct at issue must be viewed in the context of the totality of the circumstances, considering,
inter alia, the nature and frequency of offensive encounters and the span of time over which the
encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of
Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.” The Court noted that such conduct “must be both objectively and
subjectively offensive, [such] that a reasonable person would find [the work environment to be]
hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532
U.S. 268 (2001).

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Complainant’s harassment allegations include instances that can generally be described as relating
to managerial decisions, including issuing security key cards, break policies, assigning employees
to team leads, and providing access to computer equipment. 	Without evidence of an unlawful
motive, we have found that similar disputes do not amount to unlawful harassment. See
Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record
established that the issues between the complainant and the supervisor were because of personality
conflicts and fundamental disagreements over how work should be done and how employees
should 	be supervised, 	and 	there is 	no 	indication 	that 	the supervisor 	was 	motivated 	by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial
slights and petty annoyances between a supervisor and a complainant do not rise to the level of
harassment). We also note that Complainant allegations regarding being subjected to mouth
inspections for evidence of chewing tobacco were not supported by the record and, are, therefore,
insufficient to support a claim of harassment.
Additionally, with respect to Complainant’s allegations of being subject to inappropriate
comments and name calling, including comments about body odor, we find this also is
insufficiently severe or pervasive to have altered the conditions of Complainant’s employment.
See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the
allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to
charge him with AWOL, and disagreed with the time the complainant entered into a sign in log,
were found to be insufficient to state a harassment claim). We recognize that Complainant alleged
that he was subjected to being called “Father Time” and this would be a reference to age. However,
this allegation is not corroborated and, even if true, would be simple teasing and, therefore,
insufficient to support a claim of discriminatory harassment. Regarding the remaining alleged
statements, there is insufficient evidence to support the allegation that Complainant’s race, age, or
disability played any role in them. Thus, Complainant’s allegations, even if true, are insufficient
to support a claim of discriminatory harassment.
Disparate Treatment Claim
Complainant has alleged that the Agency treated him disparately in terminating him during his
probationary period. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to
prevail, he must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. Affairs
v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).

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Even if we assume that Complainant established a prima facie case of discrimination, his claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its 	actions. 	The 	Agency 	explained 	that 	Complainant 	was 	terminated 	for 	unsatisfactory
performance. The record contains Supervisor1’s letter detailing Complainant’s failure to meet the
Agency’s performance standards. Although Complainant has alleged discrimination, he has not
established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons
articulated by the Agency were a pretext for unlawful discrimination on any basis or motivated by
some unlawful discriminatory animus with respect to this claim.
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 (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

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Either party’s request and/or statement or brief in opposition must also include proof of service on
the other party, unless complainant files his or her request via the EEOC Public Portal, in which
case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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
October 19, 2020
Date