EEOC Appeal 2020000633

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ismael N.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000633
Hearing No. 443-2018-00117X
Agency No. 200J03302017103852
DECISION
On September 25, 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
August 29, 2019, final decision (FAD) concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rating Quality
Review Specialist, GS-13 at the Agency’s Regional Office facility in Milwaukee, Wisconsin.
On July 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (Anxiety Disorder2) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when:
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.
2 For purposes of this decision, the Commission assumes without finding that Complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).

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1. 	Beginning 	on 	November 	5, 	2012, 	and 	continuing 	through 	July 	12, 	2017,
Complainant’s supervisor (S1: no disability), closely monitored and scrutinized his
workload; chastised him in front of coworkers; spoke to him in an unprofessional,
loud, and angry manner; Complainant’s third-level Supervisor (S3: unspecified
disability) failed to respond to his emails or address his concerns regarding
harassment; and he was forced to share a desk with a coworker.
2. 	Effective June 16, 2017, Complainant was suspended from employment for three
(3) calendar days.
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 but
subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. Specifically, the FAD found that, with regard to
harassment, the actions complained of neither involved nor were they based on Complainant’s
protected bases, nor were they severe and/or pervasive enough to create a hostile work
environment. With regard to the suspension, the FAD found that the Agency articulated a
legitimate, nondiscriminatory reason for its action, namely that Complainant was suspended for
engaging in “disrespectful conduct” and that Complainant failed to establish that the Agency’s
articulated reason was a pretext.
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”).
Disparate Treatment
With regard to claim 2, we note that where, as here, Complainant does not have direct evidence of
discrimination, a claim alleging disparate treatment is examined under the three-part test set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant
initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507
(1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas 411 U.S. at 802.

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Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue
of whether complainant has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant
established his prima facie case of discrimination.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action. In
the Agency’s May 15, 2017 Proposed Suspension letter, signed by S3, the Agency stated that
Complainant would be suspended based on the following charge:
CHARGE 1: Disrespectful conduct.
On Tuesday, May 9, 2017, you had an instant message conversation with [a
management official], regarding a case that was recalled into the National Work
Queue. During this conversation you used inappropriate language, such as "wtf:
and "christ". In addition, you were discourteous. Examples include the following
statements: "i am so irritated with every aspect of our office right now i could puke",
“It's like get out of my way and LET ME WORK!” and "everything mgmt does is
a hinderance."
The June 2, 2017 Suspension letter further noted that Complainant’s past disciplinary record was
being taken into account. The Agency having articulated legitimate nondiscriminatory reasons for
its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence,
that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks;
Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has
failed to meet this burden.
Complainant concedes that he made “inappropriate remarks” due to his frustration with
management but contends that the matter was blown out of proportion, and that others have used
worse language without being disciplined the way he was. Complainant averred that:
Yes, . . . I had made some inappropriate remarks to another Coach via [Instant
Messanger]. I have included that IM conversation in my evidence. However, we
have been told for several years that "Coaches" understand the level of stress we
are under, especially as there are sweeping changes with computer systems and

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workload at [the Agency]. We have been told many times that we can "vent" to
them if our stress becomes too great. I felt this is what I was doing and I also know
that the language I used in my IM was much less inappropriate than the language I
have personally witnessed other employees use with management either in
meetings or in training sessions. I feel I was being unfairly scrutinized because of
my anxiety and because of [S3]’s overzealousness to punish me. Perhaps because I
had my first proposed suspension mitigated, she felt that this was her chance to get
"back at me".
We note, however, that the Suspension letter noted that Complainant’s past disciplinary record
was being taken into account and the record shows that Complainant had engaged and been
disciplined for similar outbursts in the past. While Complainant references other employees who
were not discipled for using inappropriate language, he has not specifically identified any
otherwise similarly situated coworkers outside of his protected bases who were treated better, and
has not specified whether such coworkers had, like Complainant, used such language on more than
one occasion.
When asked why he felt S3’s actions were based on his disability, Complainant averred that:
[Agency] Management, directed by [S3] has through both actions and inactions,
knowingly worsened my diagnosed anxiety disorder, which I have disclosed to her.
When I have gone to her to explain ongoing concerns as a Rating- QRS, that [S1]
was 	improperly applying 	laws 	and 	creating 	a 	hostile 	and 	unhealthy 	work
environment, I was met with denials, opposition, and eventually accusations of
disrespectful conduct that led to an eventual 3-day suspension. The punishments I
have received for the offenses I have committed are out of line with what other
employees have received, if at all, for similar offenses. I believe these actions have
been a deliberate attempt to silence me and cause additional exacerbations of
anxiety, in hopes of using that against me in order to punish me through channels
of progressive discipline.
Complainant, however, has not shown that management officials “knowingly worsened” his
psychiatric condition. Instead, we find that what Complainant describes is defensiveness by S3
seeking to counter Complainant’s criticism of herself and her subordinate, S1. While this may
constitute poor management by S3, Complainant has not shown that her actions were motivated
by animus towards Complainant’s protected bases.
Harassment
We note initially that, to the extent Complainant is alleging that the three-day suspension was part
of a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) such an allegation must fail.

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A prima facie case of hostile work environment that includes such an allegation is precluded based
on our finding that Complainant failed to establish that the suspension was motivated by
discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (September 21, 2000).
Complainant alleges that the following incidents of harassment occurred: S1 closely monitored
and scrutinized his workload; chastised him in front of coworkers; spoke to him in an
unprofessional, loud, and angry manner; S3 failed to respond to his emails or address his concerns
regarding harassment; and Complainant was forced to share a desk with a coworker. In considering
whether any of the above actions, whether individually or collectively, constitute harassment, the
Commission notes that in Harris, 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).
Following a review of the record, we find that Complainant has not shown that the Agency’s
actions either involved or were based on his protected bases. We note in this regard that testimony
from both Complainant and coworkers testifying on his behalf indicate that S1’s management style
led to widespread frustration and irritation felt by many in her department, rather than that
Complainant was singled out based on his disability or in reprisal for his prior protected activity.
On appeal, Complainant argues that his disability causes a “fight response” and that:

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[O]nce the disability of “fight response” anxiety was made known, S1 through
direct action and S3 by indirect action exploited [Complainant’s] disability by
subjecting Complainant to a barrage of harassing incidents in an attempt to trigger
his disability response which could lead to progressive discipline. . . . Complainant
contends that Sl exploited the knowledge of his disability and crafted an increase
in harassing incidents in an attempt to trigger his disability response of anger
outbursts.
We note, however, that Complainant has not established that the fact that his disability caused a
“fight response” when he was placed under stress was something that was, in fact, “made known”
to S1. Instead, the record shows that S1 denied being aware of Complainant’s disability, but even
assuming arguendo that she was aware, Complainant has still not established that either S1 or S3
were aware specifically that the disability caused Complainant to have a “fight response” to stress
for them to be able to exploit. Instead, Complainant’s allegations in this regard amount to no more
than speculation. Furthermore, we find that, despite Complainant’s belief to the contrary, the
actions complained of were insufficiently severe and/or pervasive as to alter the conditions of
Complainant’s employment.
Finally, we note on appeal that Complainant argues that the FAD:
[O]nly addresses the issue around the issuing of the Jan 2016 initial Suspension
which was reduced to a Reprimand. . . . [The FAD], however, did not address the
remainder and crux of Claim 2, namely the refusal of S3 to remove the Suspension
which had been downgraded to a Reprimand from the complainant's record after 6
months. . . . Complainant contends that S3's refusal to remove the Reprimand was
disparate treatment.
We note, however, that claim 2 addresses Complainant’s June 16, 2017, suspension, not his
January 2016 suspension. Furthermore, pursuant to the September 26, 2017, Notice of Partial
Acceptance of the EEO Complaint (Notice), the matter of Complainant’s January 2016 suspension
was dismissed pursuant to 29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant had
previously raised the matter in a negotiated grievance procedure. To the extent Complainant is
arguing that, while the claim concerning the issuance of the January 2016 suspension was correctly
dismissed, the matter of S3’s refusal to remove the discipline from his records was not, we note
that the Notice did not include such a matter as an accepted claim. Furthermore, the Notice stated
that “if your client believes that the accepted claims are improperly formulated, incomplete, or
incorrect, this office must receive written notice within 7 calendar days of receipt of this letter.”
The record does not indicate Complainant timely objected to the formulation of the accepted
claims and hence we decline to address the matter here.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met his burden of establishing, by
a preponderance of the evidence, that the Agency’s articulated reason for its action is a pretext for
discrimination or reprisal, or that harassment occurred. We therefore AFFIRM the FAD.
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. 	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.

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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 9, 2020
Date