In Vallecillo v. U.S. Department of Housing and Urban Development (HUD), (5th Cir. No. 05-50238)(November 22, 2005), the Court of Appeals for the Fifth Circuit has affirmed the U.S. District Court for the Western District of Texas decision that a Hispanic HUD employee was not harassed and was not forced to quit his job.

HUD hired Peter Vallecillo as a Community Builder (“CB”) Fellow in September of 1998. The CB program sought to provide out-reach services and foster community and economic development in approximately 81 HUD regions. After candidates for this program were selected, HUD’s human resource department reviewed each candidate’s prior experience and recommended a salary grade level of GS-13 thru GS-15. Mr. Vallecillo was hired at the GS-13 level.

Throughout his employment at HUD, Mr. Vallecillo, a Hispanic, complained that Hispanics were under-represented in the CB program and were paid less than Caucasian and African American employees. After he had questioned HUD’s employment practices, Mr. Vallecillo alleged that he was harassed. Mr. Vallecillo claimed he was accused of behaving inappropriately, accused of keeping unprofessional office hours, rated “fully successful” while his co-workers received higher ratings, was referred to as “Che Guevara,” and as an “aggressive Hispanic.” Mr. Vallecillo also received a memorandum of counseling admonishing him for verbal confrontations with his supervisors, for his negative attitude with his immediate supervisor, and for alleged misuse of the program’s e-mail system. One of Mr. Vallecillo’s supervisors commented on the need to transfer Mr. Vallecillo to Ft. Worth, Texas; subsequently Mr. Vallecillo claims that he received an e-mail notifying him that he would be transferred to the Ft. Worth territory. On October 29, 1999, Mr. Vallecillo resigned from his position.

Mr. Vallecillo filed a claim with the EEOC alleging that he was subjected to a hostile work environment and that he was constructively discharged. After a hearing in his EEO case, the administrative judge found that there was insufficient evidence to support Mr. Vallecillo’s claims. On appeal, the EEOC affirmed the administrative judge’s decision. Mr. Vallecillo then filed a suit against HUD in the district court, also alleging that he was subjected to a hostile work environment and that he was constructively discharged. The district court granted HUD’s motion for summary judgment, finding that there were no factual issues in dispute.

To state a claim for harassment that constitutes a hostile work environment, it is necessary that the harassment complained of is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The work environment must be such that a reasonable person would find it to be hostile or abusive. Id. at 21-22. The district court held that even if Mr. Villecillo established that he belonged to a protected class and was subjected to unwelcome harassment, he has not raised an issue of fact that the complained-of harassment was based on his race or national origin, or that the harassment affected a term or condition of his employment. The district court found that only two of the alleged statements were remotely related to Mr. Vallecillo’s protected status, and that these statements, even if racially offensive, did not rise to the level of a hostile work environment. The court of appeals agreed that a reasonable person would not find these statements to be hostile or abusive, and thus, Mr. Villecillo did not establish a hostile work environment claim.

Because Mr. Villecillo’s hostile work environment claim failed, his claim that he was constructively discharged from his employment also failed. To prevail on his constructive discharge claim, Mr. Villecillo needed to establish that working conditions were so intolerable that a reasonable person would have felt compelled to resign. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). Because Mr. Villecillo was unable to establish that he was subjected to a hostile work environment, he was also unable to show that his working conditions were made so intolerable that he was forced to resign.

For federal employees, Mr. Villecillo’s case is a reminder that establishing a constructive discharge claim is an uphill battle not easily won. While it is difficult to establish that harassment has risen to the level of a hostile work environment, it is even more difficult to establish that an employee’s working conditions are so intolerable that a reasonable person in that employee’s situation would be compelled to resign. Without concrete employment actions, such as a reduction in duties, demotion, change in salary, reassignment to degrading work, offers of early retirement, or badgering, harassment, or humiliation by the employer, it is often difficult to establish intolerable working conditions. Therefore, employees who are alleging harassment that rises to the level of a hostile work environment should carefully consider the consequences of their decision to resign. To the greatest extent possible, federal employees should remain on the job while they resolve their employment matters through the EEO process.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php