0120150520
09-16-2016
Antione H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Antione H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150520
Hearing No. 490-2013-00190X
Agency No. 200H06212012104592
DECISION
On November 17, 2014, Complainant filed an appeal from the Agency's October 23, 2014, final decision 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., 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.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant based on sex, age, and in reprisal for prior EEO activity when it temporarily assigned him to work at the front desk, and when it subjected him to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Magnetic Resonance Imaging Technologist at the Agency's James H. Quillen Veterans Affairs Medical Center in Mountain Home, Tennessee. Complainant filed a prior EEO complaint in June 2010, and named his second line supervisor (S1) (male, 42, prior EEO activity) as a responsible management official. In December 2011, Complainant alleged that S1 made statements to the effect of "older people are lazy and do not want to work;" and that if Complainant did not come to work due to illness, he would lose his job.
Complainant alleged that in January 2012, the workload increased for him, and his two coworkers, C1 (female, 52, no prior EEO activity) and C2 (female, 29, prior EEO activity) to the point where they were unable to take breaks during the day. In February 2012, Complainant attended a staff meeting, where he stated that S1 had, in the past, claimed that Complainant's union representative "only represented lazy people." Complainant alleged that during the meeting, S1 denied making the statement, and called him a liar in front of his coworkers.
In April 2012, Complainant's then first line supervisor retired, and he was supervised by a new supervisor (S2) (male, 54, prior EEO activity). On August 14, 2012, Complainant was temporarily reassigned to work at the front desk. S2 informed him that he was on this detail assignment while they were looking into issues with his work. S1 stated that one of the radiologists (R1) had expressed concerns about mistakes that Complainant made. On August 27, 2012, S2 informed Complainant that they would conduct a fact-finding panel to evaluate Complainant's work; however, a panel was not convened.
On or about September 7, 2012, Complainant learned from his coworkers that there was a plan to document "older employees" in an effort to "get rid of them." On September 10, 2012, Complainant alleged that S1 stated that "just because you have been here 20 years, doesn't mean you can still do the job...as you get older, you lose your skill level." S1 stated that his statement was misconstrued, and that he said, "anybody can make a mistake, because someone has been doing a job a long time does not mean that they cannot make a mistake...technology changes, you have to keep up with technology." On or about September 13, 2012, a coworker (C3) allegedly stated to Complainant, "oh [Complainant], you got an ow-wee, that's too bad." Complainant reported this to S2, who allegedly did not take corrective action. S2 stated that he spoke with C3 about the incident.
On September 14, 2012, Complainant was placed on a performance improvement plan (PIP). He was informed that he needed to not make any mistakes in the next ninety days to pass the PIP. Complainant alleged that his managers placed him on a PIP, despite their agreement that he would be placed on an individual development plan (IDP). On December 20, 2012, Complainant was notified that he had successfully completed the PIP. On December 31, 2012, Complainant resigned, alleging that the hostile work environment forced him to resign.
On October 11, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him when it subjected him to harassment on the bases of sex (male), age (60), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. in approximately December 2011, S1 made a reference that he was "being lazy and not wanting to work;"
2. in approximately December 2011, S1 informed him that "if he was out of work for being sick or injured, he would lose his job;"
3. in approximately February 2012, S1 call him a liar;
4. since January 2012, S1 increased Complainant's work tasks, requiring him to work without breaks or lunches;
5. on August 14, 2012, S2 reassigned him to a position to provide coverage at the front desk due to his performance errors;2
6. on August 27, 2012, S2 informed him that he would be subject to a fact-finding inquiry concerning conduct and work performance errors;
7. on or about September 7, 2012, he learned from his coworkers that there was a plan to documents employees to "get rid of them," with an emphasis on "older employees;"
8. on September 10, 2012, S1 made a demeaning statement in reference to his age that "just because you have been here for 20 years, doesn't mean you can still do the job...as you get older, you lose your skill level,"
9. on September 13, 2012, S2 failed to take corrective action when a coworker made a demeaning comment about his work-place injury;
10. on September 14, 2012, S1 and S2 placed him on a PIP, instead of an IDP, as previously discussed; and
11. on December 27, 2012, he was constructively discharged when he resigned from the Agency due to a hostile work environment.3
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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In regards to claim 5, the Agency assumed, without finding, that Complainant had established a prima facie case of discrimination based on sex, age, and in reprisal for prior EEO activity. The Agency then found that management officials had articulated legitimate, non-discriminatory reasons for their actions. S1 stated that leading up to August 14, 2012, Complainant had made a number of mistakes, and that they decided to reassign him until they could clarify his deficiencies and determine how to correct them. S2 stated that multiple radiologists had complained to him about Complainant's work, and that it was an ongoing issue. R1 stated that he noticed Complainant's errors, and that he made an "inordinate" number of mistakes, as compared to his coworkers. The Agency found that Complainant had not shown pretext for discrimination, and concluded that the Agency did not discriminate against him when it assigned him to work at the front desk.
For Complainant's allegation of a hostile work environment, the Agency found that Complainant had not established a link between his protected bases and the alleged acts of harassment. Additionally, the Agency determined that Complainant did not show that the conduct was sufficiently severe or pervasive to constitute an objectively hostile work environment. Rather, the Agency found that the complained of conduct fell within the normal range of events which might be reasonably expected to occur in a typical workplace. As such, the Agency found that Complainant had not shown that the Agency discriminated against him based on sex, age, or in reprisal for prior EEO activity when it subjected him to a hostile work environment.
Complainant filed the instant appeal, and submitted his brief in support of his appeal on December 1, 2014. On December 31, 2014, the Agency provided a response to Complainant's appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he has documentation to show that younger employees were instructed on how to compile documentation to "get rid of" older workers. Complainant also alleges that he was subject to adverse employment actions when he was held to higher performance standards; he was given a lower proficiency than his younger coworkers; and placed in a "demeaning" position while a fact-finding was planned. Complainant states that C1 and C2 testified that he was held to higher performance standards; that he made no more mistakes than they did; and that he was singled out and treated differently.
The Agency counters that Complainant has not shown the Agency subjected him to a hostile work environment. Specifically, the Agency argues that Complainant has not established that the complained of conduct was based on membership of any of his protected classes. The Agency states that Complainant cannot rest upon mere allegations, denials in the pleadings, or upon conclusory statements. The Agency requests that the Commission affirm its final decision finding no discrimination.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
As an initial matter, this decision will not address Complainant's claim that the Agency discriminated against him on the basis of age when it held him to a higher performance standard and gave him a lower proficiency, as compared to his coworkers, because the Commission cannot address an issue raised for the first time on appeal. This decision will only address Complainant's argument that he was discriminated against when he was placed in a "demeaning" position while issues with his work were explored, which is claim 5. This is the only matter that he is specifically challenging on appeal.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on sex, age, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for claim 5. S1 and S2 stated that issues were raised regarding Complainant's work, and they took action to temporarily remove Complainant from his duties due to concerns for patient safety while they looked into the matter. Additionally, R1 provided specific examples of errors that Complainant made; and the record contains a number of memorandums from R1 outlining his concerns with Complainant's performance.
Complainant argues that C1 and C2 stated that he was held to higher performance standards; that he made no more mistakes than they did; and that he was singled out and treated differently. While we credit the two witnesses who offered statements asserting that they personally believed that Complainant was subjected to discrimination based on his age, neither witness offers any persuasive evidence of a discriminatory motive beyond their own personal opinions. As such, we find that Complainant has not shown that the proffered reasons were pretext for discrimination. We conclude that the Agency did not discriminate against Complainant based on sex, age, or in reprisal for prior EEO activity when it temporarily assigned him to work at the front desk.
Harassment
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, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
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, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). 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.
On appeal, Complainant states that he has documentation to show discrimination; however, he did not attach any documentation, nor has he referred to any specific documentation that is contained in the record. We do not find documentation in the record to support Complainant's assertion. In regards to the claim that the documentation would show the Agency's plan to "get rid of" older employees, we find that the evidence does not show that there was such a plan. C2 stated that they were informed about a new program to document work issues, but denied that it was targeted towards the older employees.
Even if we assumed Complainant established the first three elements of a harassment claim, we find that Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. None of the instances of alleged harassment demonstrate conduct that is particularly severe or is physically threatening or humiliating. Accordingly, we find that the record does not establish that Complainant's managers subjected him to a hostile work environment based on sex, age, or in reprisal for prior EEO activity.
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 finding that Complainant has not shown that he was discriminated against when he was temporarily assigned to work at the front desk, or that he was subjected to a hostile work environment based on sex, age, or in reprisal for prior EEO activity.
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 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
__9/16/16________________
Date
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 The Agency also analyzed this claim as a discrete act of alleged discrimination.
3 This claim was processed separately as a mixed-case complaint, Agency case number 200H-0621-2012104592. The Agency issued a final decision for this claim finding no discrimination. This claim was included as background information for Complainant's hostile work environment claim.
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