Allan L.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 14, 20160120142521 (E.E.O.C. Oct. 14, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142521 Agency No. 200J06182013101528 DECISION On July 8, 2014, Complainant filed an appeal from the Agency’s June 5, 2014, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-7 Supervisor Program Support Assistant and Alternate Freedom of Information Officer (FOIA Officer) at the Agency’s Minneapolis VA Medical Center in Minneapolis, Minnesota. On April 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (back), age (53), and in reprisal for prior protected EEO activity when: 1. in September 2012, Complainant was forced to lift, sort and pull heavy boxes and consequently injured his back; 2. in November 2012, Complainant was excluded from bonuses; 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. 0120142521 2 3. in November 2012, Complainant was excluded from compensation time; 4. in November 2012, Complainant's authority was undercut; 5. in November 2012, Complainant’s supervisor refused to hire sufficient number of staff; 6. on January 22, 2013, Complainant’s supervisor met with Complainant to discuss his performance appraisal and "barked" at him yelling down military orders; told him that he was insubordinate; said he better check his attitude; and he also told him about information learned from Complainant's medical record; 7. on January 22, 2013, Complainant was given an unsatisfactory performance rating; and 8. on February 14, 2013, Complainant resigned his position due to harassment. The Agency accepted Claims 1 through 8 as alleging a pattern of hostile work environment harassment. It determined that Claims 2, 3, 7 and 8 alleged discrete acts but dismissed Claims 2 and 3 for untimely counselor contact while accepting Claims 7 and 8 for investigation.2 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). At 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”). 2 According to the Agency, it considered the dismissed claims as “background evidence” in support of the claim of hostile work environment harassment. 0120142521 3 Claims 1 – 8 (Harassment) It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, there is no evidence, nor even any nonconclusory allegation, that any of the claimed harassing actions undertaken by Agency management were based on his age, disability or prior protected activity. There is no evidence of an age-based insult, disability-based ridicule or reference to Complainant’s EEO activity that would support an inference of discriminatory animus. Without evidence of this nature, Complainant’s harassment claim fails. Claim 7 (Unsatisfactory Performance Rating) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Here, the Agency explains that Complainant received an unacceptable performance appraisal because of deficiencies in his leadership abilities. Specifically, Complainant showed favoritism toward certain employees and had difficulty adapting to change. He also failed to update his reports in a timely manner and conduct quality assurance audits. Report of Investigation at 230, 410, 404. These are legitimate, nondiscriminatory reasons for the Agency’s actions. Complainant has failed to show them to be a pretext designed to conceal discriminatory animus. 0120142521 4 Claim 8 (Constructive Discharge) Complainant also asserted that, due to the hostile work environment, he had to resign. As such, Complainant argued that he was constructively discharged from the Agency. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, Complainant failed to provide any evidence to support his assertion that the conduct that created the intolerable working condition constituted discrimination. Therefore, we conclude that Complainant has not established his claim of constructive discharge. 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 (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 0120142521 5 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. 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 October 14, 2016 Date Copy with citationCopy as parenthetical citation