EEOC Appeal 2020000043

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ramon L.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000043
Hearing No. 460-2018-00217X
Agency No. 2003-0362-2017103990
DECISION
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 July 30, 2019 final order
concerning 	an 	equal 	employment 	opportunity 	(EEO) 	complaint 	claiming 	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
During the period at issue, Complainant worked as a Decision Review Officer, GS 13 at the
Agency’s Houston Regional Office in Houston, Texas.
On October 12, 2017, Complainant filed a formal EEO complaint claiming that the Agency
subjected him to a hostile work environment in reprisal for protected EEO activity (pursuit of
instant formal complaint) when:
1. 	on May 31, 2017, Complainant’s supervisor (“S1”) attempted to put Complainant
on a Performance Improvement Plan (“PIP”);
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 June 13, 2017, S1 threatened Complainant with possible disciplinary action
regarding an alleged untimely inquiry;
3. 	on June 21, 2017, the Assistant Service Manager, Complainant’s second level
supervisor (“S2”) failed to take corrective action when Complainant notified him
that S1 was subjecting him to a hostile work environment;
4. 	on June 28, 2017, S1 questioned Complainant about the number of hours he
worked and/or “Excluded Time;”
5. 	on June 28, 2017, S1 “aggressively told” Complainant that he was going to work
on cases regardless of whether he was having computer issues;
6. 	on June 28, 2017, S1 sent Complainant an email that stated, “you are expected to
be in the office tomorrow, June 29, 2017, for your full tour of duty;”
7. 	on June 29, 2017, S1 issued Complainant a written letter of counseling for failure
to timely respond to congressional inquiries;
8. 	on June 30, 2017, S1 sent Complainant an email that stated, “In the future, when I
send an email with specific questions, I expect specific answers. I do not expect a
spreadsheet left to my interpretation;”
9. 	on July 18, 2017, S1 sent Complainant a list of past due “646’s” work products
with a suspense date that coincided with a date he had scheduled leave;”
10. 	on July 19, 2017, S1 sent Complainant an email stating, “I would like for you to
have your past due 646’s completed by the suspense date provided below. 	How
you manage your workload is up to you as long you meet the suspense.”
11. 	on July 20, 2017, S1 sent Complainant a message stating, “I am concerned about
your production and quality. You are currently not meeting the ‘fully successful’
performance standard, and could face possible adverse action if your production
and quality does not improve;”
12. 	on September 12, 2017, S1 required Complainant to report to the office because
he was having problems with VBMS uploading;
13. 	on September 12, 2017, S1 cancelled Complainant’s scheduled overtime for the
afternoon;
14. 	on September 13, 2017, S1 instructed Complainant to submit a new NSD ticket
because VBMS was restored, even though Complainant had proof that there was
an open ticket on this matter because he was still having issues;

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15. 	on September 14, 2017, S1 sent Complainant an email stating, “I did not receive a
list of the Form 9’s you reviewed yesterday,” even though S1 knew Complainant
could not take action on the matter due to VBMS issues;
16. 	on September 14, 2017, S2 failed to take corrective action when Complainant
notified him that S1 was continuing to badger him regarding VBMS issues, over
which he had no control;
17. 	on September 22, 2017, S1 notified Complainant that he received nine errors, and
S1 was concerned about Complainant’s quality because he could face possible
adverse action if he did not meet his fully successful performance standards; and
18. 	on September 29, 2017, S1 stated in a team huddle that “employees working from
home become lax.”
After investigation of the accepted claims, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant
timely requested a hearing. On May 31, 2019, the Agency filed a motion for summary judgment
(“Motion”).
In the motion, the Agency argued that claims 1 – 8 should be dismissed because Complainant
failed to establish a prima facie case for retaliatory harassment. Specifically, the Agency stated
that Complainant initiated EEO Counselor contact on July 12, 2017 and had no prior EEO
activity before this date. 	Therefore, the Agency reasoned that Agency officials were not aware
of Complainant’s prior 	EEO activity during 	the period 	claims 1 – 	8 occurred 	because
Complainant had no prior EEO activity at that time. For claims 9 – 18, the Agency determined
that Complainant failed to demonstrate that management’s actions toward Complainant were
based on Complainant’s prior protected EEO activity.
Complainant responded to the Agency’s notice on June 13, 2019. 	On July 19, 2019, the AJ
issued a decision by summary judgment in favor of the Agency.2
On July 30, 2019, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.
The instant appeal followed.
2 The AJ issued a brief decision that ultimately “dismisses” Complainant’s claims. However, we
clarify that the AJ also determined that Complainant failed to refute the Agency’s arguments and
the AJ also determined that “each of the Agency’s actions had a legitimate and non-retaliatory
rationale.”

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ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 	EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. 	The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
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 “material” fact has the potential to affect the
outcome of a case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that
there are material facts at issue. 	However, 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, she has not pointed 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 her favor.
Dismissal of Claims 1-8
The AJ did not expressly dismiss these claims in the final decision. However, our review of the
record reflects that Complainant has not established a prima facie case for retaliatory harassment
for claims 1 – 8.
Specifically, the record reflects that Complainant raised reprisal for prior protected EEO activity
as his sole basis for the instant formal complaint. The record further reflects that Complainant
initiated EEO Counselor contact on July 12, 2017 regarding the instant matter. 	There is,
however, no indication in the record that Complainant had engaged in prior protected EEO
activity before July 12, 2017. We note that Complainant testified that he believed his objections
to his potential placement on a PIP in May 2017 resulted in his S1 retaliating against him.
However, there is no indication that Complainant sought EEO counseling on the matter or any
matter he had with the Agency before July 12, 2017.

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Therefore, Complainant cannot establish that Agency management was aware of his prior
activity at the time the alleged events identified in claims 1-8 occurred because Complainant had
not engaged in prior protected EEO activity at that time. Therefore, we find that claims 1 – 8 do
not state a claim and are therefore dismissed pursuant to 42 C.F.R. §§ 1614.405(a) and
1614.107(a)(1).
Harassment: Claims 9 – 12, and 14-18
To establish a claim of discriminatory environment 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, 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 reprisal for prior protected EEO activity. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
Although we note that the AJ did not specifically address each of these claims in her decision,
our review of the record reflects that Complainant has not demonstrated that the Agency
subjected him to discriminatory harassment.
Claims 9 and 10 (646s paperwork and suspense dates)
Complainant testified that S1 initially had assigned him to complete his past due 646s on his
scheduled off day, but subsequently only extended the deadline to the day after his off day.
S1 acknowledged that she assigned Complainant to complete the 646s because these assignments
were past due. 	S1 also denied that she provided a deadline to prevent Complainant’s ability to
take leave. 	Rather, S1 indicated that she provided Complainant ten days to complete this
assignment and allowed Complainant to determine how he planned to manage his workload to
meet the deadline. S1 further denied that she assigned the deadline for completing the 646s out
of hostility or retaliation.
The record reflects that S1 emailed Complainant on July 18, 2017, and instructed Complainant to
complete past due 646s by July 28, 2017. The record also reflects that S1 emailed Complainant
on July 19, 2017 in response to Complainant’s email that Mondays were his off days and he had
scheduled leave on July 28, 2017.

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The July 19, 2017, email indicates that S1 informed Complainant that it was up to him to manage
his workload to ensure that he completed the past due 646s prior to his scheduled leave.
Claim 11 (S1’s concern about quality of Complainant’s work)
S1 clarified that she did not send Complainant a letter on the date at issue. 	Rather, S1 sent
Complainant a monthly review on July 21, 2018. 	S1 explained that the monthly review is
designed to inform Complainant as to where he stands regarding his production and quality. S1
further noted that at the time of the review, the data indicated that Complainant was not meeting
his production standard, and that he could face possible adverse action. 	S2 also corroborated
S1’s testimony that monthly reviews are conducted for each employee and that it is “consistent
practice” 	for 	supervisors 	to 	inform 	employees 	of 	possible 	consequences 	of 	sustained
unacceptable performance.
Claims 12 – 16 (Complainant’s VBMS issues and management’s response)
S1 explained that she followed guidance from S2 when she instructed Complainant to come in
the office after his VBMS problems were not resolved within an hour. 	S2 corroborated S1’s
testimony and stated that the telework agreement requires employees to report to the office if
computer-related problems cannot be resolved in one hour.
The record further indicates that Complainant continued to have computer issues for the rest of
the day on September 12, 2017. As a result, Complainant emailed S1 and S2 and offered to take
annual leave for the rest of the day, instead of waiting for the IT Department to resolve his
issues. 	Email correspondence in the record supports that S2 then approved Complainant’s
request to take annual leave for the rest of the day on September 12, 2017. Therefore, there is no
indication from the record that management cancelled Complainant’s scheduled overtime on
September 12, 2017.
The following day on September 13, 2017, both S1 and S2 testified that they instructed
Complainant to submit another a new ticket even though Complainant’s VBMS issues had been
resolved, because this was the instruction S1 and S2 received from the IT Department.
Complainant then argued that S1 emailed him on September 14, 2017 to indicate that he failed to
provide a list of the Form 9s he reviewed, even though S1 was aware of his computer issues.
The record reflects, however, that S1 was following up from a previous email she sent all
employees requesting that they send her the claim numbers of the Form 9s which employees
have reviewed by close of business daily. 	Because she did not receive a list from Complainant
as instructed, S1 stated that she followed up on this request in her September 14, 2017 email to
Complainant. 	Similarly, S2 also acknowledged that S1’s email was a typical management
inquiry. S2 further acknowledged that sometimes intermittent work can still be performed even
when there are VBMS issues.

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The record further reflects that Complainant emailed S2 on September 14, 2017 a copy of an
instant message (“IM”) conversation he had with S1 regarding S1’s inquiry the day before on
whether Complainant’s VBMS issues had been resolved. Complainant explained in his email to
S2 that “I provided facts and follow-ups following this IM conversation, but I continue to be
badgered regarding VBMS, which is no fault of my own.” The record reflects that S2 responded
to Complainant’s email by stating, in pertinent part, the following:
You have been experiencing VBMS issues which apparently differs from the
latency issues other were experiencing around the same time. 	Therefore, [S1]
needs to ask specific questions regarding your issue so that she can properly
inform me and I in turn can properly route our concerns up the chain of command.
You are seeming to have much more difficulty with VBMS than most folks, and
I’m trying to get IT to research this and find out the root cause. I know you are
concerned about your excluded time, but [S1] and I have already discussed this,
and you will get excluded time for when your VBMS is down.
Therefore, there is no indication in the record that S2 failed to address Complainant’s concerns
related to S1’s inquiry about the extent to which Complainant’s VBMS issues impacted his
ability to complete other assignments.
Claim 17 (S1’s notification of Complainant’s nine errors)
S1 acknowledged that she informed Complainant on September 22, 2017 regarding her concerns
about his performance. 	S1 reiterated that, as a supervisor, it is her responsibility to inform
employees of any possible adverse action that might be taken in event one or more elements of
the performance standard are not met.
Claim 18 (S1’s statement that teleworking employees become lax)
S1 	denied 	making 	the 	comment 	at 	issue 	although 	the 	record 	includes 	testimony 	from
Complainant’s co-worker (“CW1”) acknowledging that S1 had commented that some employees
had become lax because their production levels decreased. However, CW1 indicated that she
could not speculate on S1’s motives for making the comment.
Considering these claims, even if true, Complainant has not shown evidence that considerations
of 	retaliatory animus 	motivated 	management’s 	actions 	towards 	Complainant. 	The 	record
supports that S1 provide Complainant a window of time to complete past due 646s. The record
further reflects that on two occasions, S1 informed Complainant about his work performance as
part of her supervisory duties. 	Additionally, the record indicates that S1 and S2 attempted to
resolve Complainant’s VBSN issues through guidance provided by the IT Department and in
accordance with the Agency’s telework agreement. 	Although there is some support that S1
made the comment regarding telework employees becoming lax, there is no indication in the
record that S1’s comment was made to retaliate against Complainant.

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These incidents Complainant alleges are not sufficiently severe or pervasive as to constitute
hostile work environment/harassment under Commission regulation. 	The incidents involved are
of a type that typically arise out of workplace conflicts or communications. However, EEO laws
are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). 	After careful review
of the record, including Complainant's contentions on appeal, we find that Complainant failed to
demonstrate that the Agency discriminated against him as alleged.
CONCLUSION
The Agency's final order implementing the AJ's finding of no discrimination, without a hearing,
is AFFIRMED.
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.

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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
September 14, 2020
Date