0120160118
01-09-2018
Charley L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charley L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160118
Hearing Nos. 430201200322X, 430201300338X
Agency Nos. 200406522011104159, 200406522013101104
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission"), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 21, 2015, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Orthotist/ Prosthetist, GS-9, at the Hunter-Holmes McGuire VA Medical Center in Richmond, Virginia.
The instant appeal concerns two EEO complaints, referenced as "Case 1," and "Case 2" in the record, that were consolidated at the hearing phase.2 Both allege reprisal for engaging in prior EEO activity (EEO Hearing No. 430201000339X).
"Case 1" (EEOC Hearing No. 430201200322X, Agency No: 200406522011104159) alleged that Complainant was subjected to discrimination on the basis of reprisal when:
1. On July 5, 2011, his second level supervisor ("S2"), the Chief of Prosthetics, denied Complainant's request for a pay review (re-board) for promotion to a GS-11 position; and
2. On July 5, 2011, S2 informed Complainant that he would not be promoted to a GS-11 position because he was at the full performance level of his position.
"Case 2" (EEO Hearing No. 430201300338X, Agency No. 200406522013101104) alleged that Complainant was subjected to a hostile work environment on the basis of reprisal, citing the following events:
1. On October 12, 2012, his first level supervisor ("S1"), the Supervisor of the Orthotic Laboratory, embarrassed him in front of a co-worker ("C1");
2. On November 6, 2012, he was notified that he was not selected for the position of Orthotics/Prosthetist, GS-11 (Vacancy Announcement VHA-652-12-NLB 622465);
3. On November 8, 2012, S1 issued him a Letter of Counseling for being absent without official leave ("AWOL") on October 30, 2012;
4. On November 15, 2012, S1 and S2 initially denied his leave request for November 16, 2012, but then approved it after being contacted by the Union; and
5. From November 19 through 23, 2012, S1 and S2 designated C1 as Acting Orthotics Lab Supervisor, instead of Complainant.
After each investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing for each case. An AJ was assigned, and on August 5 and 6, 2014, he held a hearing to address both complaints and issued a decision on August 13, 2015.
In reaching this decision, the AJ determined the following facts:
On December 9, 2010, Complainant filed a formal EEO complaint (EEOC Hearing No. 430201000339X, Agency No. 200406522020100461), which would become the basis for Complainant's reprisal allegations in Cases 1 and 2. There, Complainant alleged that S1 harassed him and created a hostile work environment by, among other things, micromanaging him and speaking down to him in front of colleagues. After an investigation, Complainant requested a hearing before an AJ, and the hearing was held on March 8, 2012. The AJ issued a decision on July 3, 2012 in favor of Complainant, ordering the Agency to pay Complainant's attorney fees and thirty-five thousand dollars in nonpecuniary compensatory damages, to remove Complainant from S1's supervisory chain of command, and training and preventative action.3
While this initial complaint was pending, Complainant earned a certification as an Orthotist/Prosthetist Technician. S1, who was already a certified Orthotist/Prosthetist, assisted Complainant, by working with him directly, which gave Complainant the requisite apprenticeship, observation, and practice hours necessary to earn the certification. S1 also allowed Complainant to study for his certification exam during work hours, and wrote Complainant a letter of recommendation. According to S2, while not required, such a certification is "highly desirable" for Complainant's position.
On July 5, 2011, Complainant notified S2 that he earned his certification, and requested a promotion to GS-11, or to be re-boarded to a GS-11 position. S2 considered Complainant's request, reviewing his resume, and his knowledge, skills and abilities ("KSA"), and consulting an Agency Human Resources Specialist ("HR"), but ultimately denied him a paygrade increase. S2 and HR determined that Complainant was working at "full performance level" as a GS-09 Orthotist/Prosthetist, and therefore not eligible for promotion to GS-11. Additionally, S2 could not move Complainant to a GS-11 position because none were available. S2 had the authority to request another GS-11 Orthotist/Prosthetist through the Resource Management Committee ("RMC"), which was responsible for approving new positions based on the needs of the department. However, the Prosthetics department already had two GS-11 Orthotist/Prosthetists, and S2 did not require a third. Believing S2's rationale was pretext for discrimination, Complainant initiated Case 1 with an EEO Counselor on July 21, 2011.
In 2012, one of the GS-11 Orthotist/Prosthetists left. Rather than promote Complainant to GS-11 and announce an opening for his GS-09 position, a GS-11 Orthotist/Prosthetist vacancy announcement posted on June 27, 2012. Complainant was one of five applicants. HR determined that Complainant and one other applicant ("A1") qualified for position, and forwarded their names on a "Certificate of Eligible Candidates" for a panel interview. On August 7, 2012, Complainant and A1 interviewed with a three-member panel. The Panel used the same list of Performance Based Interview ("PBI") questions to interview Complainant and A1, and scored their responses using predetermined metrics. The Panel recommended A1 for the GS-11 Orthotist/Prosthetist position to the selecting official, which was S2, on August 12, 2012, because A1 received an overall score of 79, compared with Complainant's overall score of 65.
On August 13, 2012, S2 offered A1 the position, and he tentatively accepted, but asked to be boarded as a GS-12 instead of GS-11. On October 3, 2012 upon review by the RMC and HR, A1's request was denied, and he declined the offer on October 8, 2012. Complainant, as the remaining "eligible candidate" was not offered the position because by then over 30 days had passed since HR issued the list, so S2 mistakenly believed the list expired. The AJ found S2's testimony that it was mistake (as opposed to retaliation) to be credible, noting in her decision that it was "unrebutted." Complainant also argued, without sufficient evidence, his qualifications for the Orthotist/Prosthetics GS-11 position were demonstrably supervisor to those of A1.
On November 6, 2012, Complainant learned he had not been selected for the GS-11 position. Since S2 was the selecting official, Complainant contends that she was retaliating against him. He also alleges that his non-selection was one of multiple alleged discriminatory acts that occurred in the months following the July 3, 2012 EEO decision in his favor. In 2.1, he alleges that S1 embarrassed him on October 12, 2012, by ordering him to go assist patients when he was in the middle of assisting C1 fill a cast mold. Both C1 and Complainant testified that S1 did not raise his voice when making the request. However, Complainant argues that S1's instruction was unwarranted, and intended to harass because at the time, only "a few" patients were in the waiting room. In Complainant's opinion, there were not enough patients waiting to justify S1's pulling him away from assisting C1.
On November 8, 2012, S1 issued him a Letter of Counseling for being marked AWOL, as alleged in 2.3. Complainant told S1 that he called S2 and requested the time off, and provided S1 with his personal phone records as proof. The AJ found S1's explanation that when he entered Complainant's leave as AWOL, he believed that Complainant had not followed proper procedures for requesting leave credible, noting that S1 rescinded the Letter of Counseling and reclassified Complainant's leave as Leave Without Pay ("LWOP") even though S2 stated she did not receive a voicemail from Complainant. The AJ found S1 and S2's testimony concerning the leave issue in 2.4 was also credible. S1 and S2 explained that on November 15, 2012, they initially denied Complainant's request to take annual leave because he had run out of annual leave. The request was granted once it was recategorized as LWOP.
Finally, in 2.5, Complainant alleges that he was improperly denied an opportunity to work as "Acting Orthotics Lab Supervisor" while S1 was out of the office from November 19 through 23, 2012. Complainant argues that as the Orthotics/Prosthetics Technician with the highest level of seniority, he was the appropriate choice. The AJ found S1 and S2 credibly testified that they selected C1 instead of Complainant because C1 was the only GS-11 on staff at the time. S1 did not consider years worked, but rather grade level, because the Acting Supervisor would be a "quasimanagement" role. Further, S1 did not believe it was appropriate to place Complainant, a GS-09, in a "quasimanagement position" over C1, who was a GS-11 level employee. Shortly afterward, on or around November 30, 2012, Complainant was detailed to a GS-09 position outside S1 and S2's chain of command.
Complainant initiated "Case 2" on December 12, 2012, and formally filed his EEO complaint on January 29, 2013. Cases 1 and 2 were consolidated during the hearing phase. After the AJ issued a decision, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
It is well established that the Agency, as the employer, has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. Further, the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." See Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). Such discretion applies in the instant case, as Claims 1.1 and 1.2 both involve Complainant's request for a change in paygrade, which, along with Complainant's challenge to a hiring decision in 2.2, and designation as "Acting Orthotics Lab Supervisor" in 2.5 constitute personnel decisions.
Assuming arguendo that Complainant has established a prima facie case, and mindful of the discretion afforded business judgment, Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256. On appeal, Complainant argues that the AJ erred when she determined that S1 and S2's testimony was credible, and relied on it in her decision. Specifically, Complainant repeatedly alleges that the AJ failed to demonstrate "how" she determined that S1 and S2's testimony during the hearing was credible. Complainant has not offered evidence or pretext, or that would contradict the AJ's credibility findings.
Complainant's primary rationale for disputing the AJ's credibility findings for S1 and S2's testimony is that both S1 and S2 were named RMOs in his initial complaint (EEOC Hearing No. 430201000339X, Agency No. 200406522020100461). While Complainant filed an appeal to enforce the AJ's orders in this matter, and our records indicate that the Agency paid Complainant thirty-five thousand dollars in compensatory damages on November 28, 2012, plus $117.53 in interest for late payment; Complainant was placed on a temporary detail in the Biomedical Engineering department, removing him from S1 and S2's Chain of Command on November 30, 2012; on March 4, 2013, Complainant was permanently reassigned to the "Podiatry Service to work under the direct supervision of the Chief of Podiatry, performing Orthotists-Prosthetists duties as outlined in [Complainant's] current functional statement;" and S1 completed 10 hours of EEO training with a focus on retaliation, in January 2013. See EEOC Appeal No. 0120123398 (February 20, 2013); EEO Compliance No. 0620130414.
After carefully reviewing our records, and comparing the timelines for each action, we find S1 and S2's involvement as RMOs in Complainant's prior complaint is insufficient on its own to establish a retaliatory motive or reverse the AJ's credibility findings. Although S2 testified that S1 was "disappointed" by the conclusions reached in the prior complaint, there is minimal evidence in the record, aside from bald assertions, to connect the EEO activity related to his initial complaint and the action raised in his subsequent complaints.
Complainant's other proffered evidence that the AJ erred in finding S2's testimony credible concerns 2.2, as S2's reason for not offering Complainant the GS-11 position after A1 turned it down was "factually incorrect." An HR Specialist testified that the list expires in 90 days, so that if the first-choice candidate declines the position, a selection can be made without having to re-post. S2 testified that the Certificate of Eligibles was issued on July 13, 2012, and specifies that it must be returned by August 12, 2012, meaning that the applicants must be contacted and interviewed within that time frame. The AJ acknowledges that S2's explanation was "factually incorrect" but found her explanation that she mistakenly thought the list expired in 30 days credible. Without supporting evidence, we find this insufficient to overturn a credibility finding.
We find the AJ provided sufficient explanation for her credibility determinations, and that they are supported by substantial evidence in the record. Regarding 2.2, the AJ noted that S2's explanation was "unrebutted." In other words, Complainant offers no evidence that she did not make a mistake regarding the expiration timeline. The AJ also responded to Complainant's contention that he was more qualified for the GS-11 position that A1 by stating that "a panel of disinterested parties did not agree," and reasoning that "[S2] utilized a standard selection process, i.e., a panel of disinterested employees was convened, and [S2] made her selection based upon the recommendations of that panel. The panelist reviewed the resumes' and KSAs of both candidates and selected [A1] as the highest scoring and most qualified candidate." On appeal, Complainant has not offered any evidence that his qualifications were "observably superior" nor has he offered evidence (other than bald assertions) that the process itself was discriminatory. Moreover, as the AJ explained, "because Complainant carries the dual burdens of production and persuasion, he must clearly demonstrate that the Agency's stated reason for the personnel action at issue are unworthy of credence, or that the Agency was more likely than not motivated by some discriminatory animus." Complainant failed to meet his evidentiary burden.
Harassment
To prove his harassment claim, 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. As this is a reprisal allegation, Complainant must also prove that the conduct was taken because of his prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).
We have long held that managerial decisions and personnel actions that are disadvantageous to an employee do not automatically equate to harassment creating a hostile work environment. See Arnold v. United States Postal Serv., EEOC Appeal No. 01A24022 (Oct. 9, 2003). Moreover, an agency is not required to refrain from non-discriminatory personnel actions it would otherwise take simply because the employee has engaged in EEO activity. See, e.g., Sotomayer v. Dep't of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
The AJ determined, and we agree, that Complainant has not established that the events described in Case 2, considered together, were sufficiently severe or pervasive to rise to the level of unlawful harassment. Both allegations concerning Complainant's leave (2.3 and 2.4) were resolved. Complainant was not denied leave and his attendance and disciplinary record were not impacted. Moreover, beyond his bare assertions, Complainant has not provided sufficient evidence to suggest that what occurred was motivated by retaliatory animus.
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 order.
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. 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
January 9, 2018
__________________
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 As with the AJ, we will refer to the claims by both Case and Claim Number. For example, Case 1, Claim 1 would read 1.1.
3 It appears that the Agency initially failed to timely comply with the AJ's order to remove Complainant from S1 and S2's chain of command. The Commission, in a decision dated February 20, 2013, later ordered the Agency to do so and it appears Complainant was reassigned in compliance with that order. See EEOC Appeal No. 0120123398.
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