0120143078
09-26-2016
Marc L.,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
Marc L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120143078
Hearing No. 520-2013-00013X
Agency No. 200H-0005-2011103024
DECISION
On September 6, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the June 2, 2014, decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) 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. There is no indication in the record that the Agency issued a final order after the AJ's decision, albeit in opposition to the appeal the Agency supports the AJ's decision. The appeal is timely and accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Telecommunications Specialist or Administrative Resource for its Information Resource Management (IRM) at its VA Hospital in East Orange, New Jersey. The staffing firm was a subcontractor of the general contractor who had the contract with the Agency.
On June 9, 2011, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected him to a hostile work environment from 2008 to his removal on May 11, 2012, based on his race (African-American), color (Black) and reprisal for prior protected activity under Title VII. Complainant alleged 39 examples thereof, some with subparts. Specifically, as summarized below, Complainant alleged:
1. Numerous illustrations of the Agency constricting his work and authority by doing things such as his Agency first line supervisor (S1) sometimes performing some of his duties; instances of S1 going to vendors for advice and support rather than to him, at the behest of S1, a permanent employee was trained on how to perform one of his functions; toward the end of his employment his second line Agency supervisor (S2) solicited permanent employees to perform one of his responsibilities; S1 restricted and/or cut off his access to vendor bills, accounts and reports; S1 cut off his authority to make direct orders and service/product transactions with vendors; S1 asked him to do reports based on inaccurate source information, and S1 did not give him access to the shared outlook calendar;
2. S1 communicated with and treated him in a stark and at times harsh manner - since 2008, he warned Complainant that his position was going to be phased out; S1 accused him of sending vendor invoices to his personal email account and ordering a device without prior approval; in a conversation S1 repeatedly asked him about an online account S1 restricted him from, S1 shouted at him in a heated argument; S1 emailed him that unless he coordinated his time off with S1, Complainant would need to arrange a substitute and if they could not resolve this S1 would seek the intervention of the contracting officer, and S1 placed the email thread on this exchange in the quarterly report for the contracting officer; when he questioned S1 on why he scoured his government personal computer, S1 was rude and condescending to him; and toward the end of his employment S2 directed him to provide the Agency copies of the timesheets he gave to his staffing firm;
3. He was not permanently hired, nor retained on contract;
4. He was required to have a clearance, while contractor Comparison 1 (Hispanic) was not;
5. On March 23, 2012, his Agency fourth line supervisor (S4) advised him that the contract provision for his service to the Agency would not be renewed past June 30, 2012; and
6. On May 11, 2012, he was terminated.
The Agency accepted four examples of the Agency constricting Complainant's work and authority as discrete acts, as well as his allegations regarding not being permanently hired, nor retained on contract, being required to work with a clearance, and his termination.
Complainant started serving the Agency around August 2007. S1 started in his position in July 2008, S2 in January 2011, and S4 around June 2010.
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 EEOC AJ. Complainant requested a hearing. Thereafter, the AJ granted the Agency's motion for summary judgment, and found no discrimination. There is no evidence that the Agency thereafter issued a final action. Accordingly, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
The AJ found that Complainant's complaint failed to state a claim because he was not employed by the Agency. The AJ went on to find that assuming arguendo that Complainant was an employee of the Agency, he failed to prove discrimination. The AJ found that Complainant did not allege that S1, S4, or any other Agency official used racially hostile or insulting language, pointed to no comments, remarks or jokes evincing racial animus, and was not similarly situated to the comparators he identified because they either were not on the same contract as Complainant or were contracted to perform different duties.
The AJ pointed to the statement of Complainant's fifth line Agency supervisor (S5), who oversaw information technology for all Veterans Health Administration facilities within VISN 3, that the provision in the contract between the Agency and the general contractor which provided for an administrative resource - the services Complainant provided, was poorly worded. S5 stated that Complainant was serving the Agency before any of the Agency officials he accused of discrimination arrived, and they interpreted the administrative services part of the contract differently than Complainant - (fewer duties than Complainant's interpretation). The AJ recounted S5's statement that the Agency facility Complainant served was one of the few that still had the administrative services provision in its contract, and he decided to drop that, and in so doing, Complainant was no longer needed. S5 elaborated that nationally, it was determined there were sufficient in house resources to cover the administrative resource function in Veterans Health Administration Healthcare facilities, and there had already been four (temporary) extensions thereof at Complainant's facility. The AJ found that the Complainant failed to prove pretext.
The administrative resource provision of the contract provided that the individual in this role will serve as a single point of contact for assisting in coordination and support of all cell phones, pagers, and Blackberries; review and understand the client's inventory of equipment to be supported; develop a transition plan to implement the support of all site users, including documentation of all devices distributed and all approved users, ongoing tracking/reporting of all devices within the client's environment; with customer support jointly develop and communicate new processes and procedures for distribution and reporting on all devices in scope; and provide documentation as required by customer on existing inventory assignments. Under the contract provision, the administrative resource would be provided 40 hours weekly 52 weeks a year with backfill for illness and vacation, with no staffing on Federal observed holidays. S1 was the Telecommunications Manager and the Contract Officer Technical Representative (COTR).
Regarding constricting Complainant's work and authority, S1 disagreed that some examples occurred. On other instances, S1 stated that Complainant's primary function was inventory, and he was doing work outside the scope of his administrative resource function - for example making orders with vendors such as Sprint Wireless and Verizon Wireless for products or services, albeit he allowed him to do it if there was no associated cost. S2 stated that where there is a cost, it was illegal for a contractor to negotiate or order on behalf of the Agency without having the authority granted to him, and there is a new process where the Regional Office must provide approval when ordering a device. On Complainant's contention that he was asked to do an inventory report based on inaccurate source information, S1 stated Complainant and the general contractor were supposed to maintain the source spreadsheet, and populating the inventory report with information from Sprint Wireless and Verizon Wireless, as Complainant wished to do, was not what he wanted - he wanted a comparison thereof so inaccuracies could be identified. S2's statement corroborated S1's account.
On his consulting Sprint Wireless and Verizon Wireless customer service representatives, S1 explained this was part of his job, he routinely did so to do research and this was not malicious. S2 stated there was no problem with this. S1 stated that Complainant is not the single point of contact for activating or configuring BlackBerries - this service needs back up when Complainant is unavailable, so he and other Agency employees also performed this duty. S2 explained that he solicited volunteers to support BlackBerries because this was necessary to support service needs - having only one person doing it was problematic. S4 added that later the management team was aware that administrative resources would no longer be provided, so it was necessary to solicit Agency personnel.
Regarding S1 communicating with Complainant in a stark and harsh manner, S1 conceded that in response to Complainant challenging him on Complainant's responsibilities, he told him he was here because the Agency required his services, but if they don't receive them the Agency could make a choice on whether to exercise another option year. S1 stated that it was his job to promote fiscal responsibility, they paid well over six figures for Complainant's services, all other sites were internally performing the resource administrative function without the excessive contract expense, and he raised this with upper management.
In some other examples, what Complainant described as stark and harsh, S1 described as businesslike, direct, and professional. For example, Complainant described an email exchange between S1 and him as S1 accusing him of sending vendor invoices to his personal email account and ordering a device without prior approval. The email exchange is located at exhibit C15. Therein, by email S1 referenced a specified "tether" device, and asked Complainant who had this. Complainant replied he did - a BlackBerry was used to tether. The exchange includes a Verizon Wireless invoice where the contact email is Complainant's personal email address. S1 wrote:
Did I consent to you using [this]... feature?? If not, you are to cease utilizing the feature.... Also, please provide me a list of all those utilizing the tethering feature as well as your comments with regards to the functionality of this feature. Also, note that this device was one of the highest usage devices on the Verizon Account. Additionally, it appears you are mailing memos to a [H]otmail account...come on [Complainant]...this is government business not personal property. Let's stay within the guidelines....
S1 denied that he "accused" Complainant of ordering the device without prior approval - he viewed himself as communicating a business process where Complainant needed to request approval before ordering a specific device. S1 stated that if he is not involved in the approval he is going to ask questions, regardless of who made the order. He viewed this as his asking a question, as any manager would. S1 stated that sending a vendor invoice for telecommunication equipment to a personal email address is improper, and he was trying to foster corrective action by having it sent to a government email account (which Complainant had).
Complainant contended that in a conversation S1 asked him the same question in a number of different ways about a Sprint Wireless account for which S1 restricted his access. S1 explained that there was only one password and username for wireless accounts, and as the Telecommunications Manager he could not determine who was manipulating accounts because of this single password. Accordingly, he coordinated an effort to establish user names for each individual, and created an account for Complainant restricted to budget information - the level of access required to fulfill his role, and Complainant could get access by resetting his password. In his statement, S2 corroborated S1's account. Regarding questioning Complainant, S1 stated that when he makes observations and spot checks and sees something inconsistent with business practice, he will challenge it.
While S1 did not recall getting into a heated argument with Complainant, under Complainant's version of events he arguably provoked it - by ignoring S1's inquiry, telling S1 he did not want to discuss it and saying he was tired of sitting down and talking to him, and telling S1 they never accomplish anything. Exh. B1, at 161 - 162. Complainant stated he also shouted. In another incident, while Complainant was serving at a different campus, S1 logged onto Complainant's computer to get access to wireless licenses so he could answer a question by two upper level managers and obtain the tools needed to get one of their BlackBerries up and running. Complainant stated that he did not trust S1, so he asked him why he was there and what he was doing and S1 told him the computer was Agency property and he did not have to answer to him. Exh. B1, at 169 - 170.
Complainant contended that toward the end of his employment, after he was notified the contract provision providing for his services would expire on June 30, 2012, S2 directed him to start providing the Agency copies of the timesheets he gave to his staffing firm. S2 took over S1's responsibility of directly overseeing Complainant and being his COTR around this time. Exhs. B2, at 62, B3, at 6, 23. S2 explained that there was a change in the contract requiring the Agency to account for the time of Complainant and Comparison 1 (Hispanic). Comparison 1 worked for a different staffing firm than Complainant but under the same general contractor. On May 9, 2012, S2 stated that moving forward Complainant and Comparison 1 would be required to sign a timesheet. Complainant moved to Pennsylvania, and would arrive to work late. S1 stated that when Comparison 1 came in late, he would make up the time, but Complainant would come in late and leave early - not make up the time.
Complainant generally contended that S1 treated Comparison 1 with more respect. S2 countered that he also challenged Comparison 1 on performing tasks and up to expectations, and provided several examples. S2 stated he has seen S1 disagree with Comparison 1 on several occasions.
Regarding not being permanently hired nor retained on contract, Complainant averred that in 2009, S4 said he could not hire him permanently because he was a contractor, yet IRM hired two white contractors. Complainant stated that for this reason, coupled with S1 wanting to phase out his position to save money, he did not apply for permanent employment. Exhs. A6, at 00318, B1, at 156. In the investigation, S4 was not asked about this - he was asked about comparative employees. S4 stated that in the role of selecting official he hired one White comparative employee who applied for a position via vacancy announcement. This comparative employee was formerly a contractor in IRM, left and became a permanent Agency employee for the Canteen, and then applied and was selected pursuant to a vacancy announcement. S4 stated he was not involved in the permanent hiring of the second white contract employee.
Complainant contended that he learned that Comparison 1, who he stated arrived two or three years before him, was not interviewed for a clearance until 2011. Complainant alleged he was required to have a clearance much earlier, and because he did not have one when he was hired, he was not given access to the Agency network for nine months - until he was cleared. At exhibit C16, the record contains a series of emails regarding clearance related to Comparison 1. They reveal S1 emailed Comparison 1 about his clearance status in late December 2008. By June 2009, the emails reveal a background investigation was being conducted on him. In March 2010, S1 sent an email stating he needed assistance obtaining a security clearance for Comparison 1 - there were problems with processing - paperwork being misplaced. S1 stated that in 2009, questions were brought up about clearances, and a process to facilitate them was put in place. He stated Comparison 1 did not have a clearance, and paperwork was completed to obtain one for him. S1 stated that adjudication of a security clearance does not preclude you from working at the site, you only have to start the process, and Comparison 1 needed a higher level clearance (than the one Complainant averred he was required to have).
Regarding Complainant's termination on May 11, 2012, S2 stated that he asked Complainant to perform a task and he refused on the ground that S2 changed the process for doing the task - different from the way it was before S1 arrived, and claimed this was not within the ambit of the contract. S2 stated he told Complainant he did not want to worry about the past, Complainant got very upset, hung up the telephone, and when he tried to reach out to Complainant to calm him down, he ignored his telephone calls. S2 stated that he contacted the Agency Contracting Officer and the general contractor, and said he wanted Complainant removed until he agreed to perform the work within the scope of the contract.
Complainant stated that about a week before May 11, 2012, S2 asked him to do an inventory. Complainant stated he told S2 that because S1 and others were now ordering devices and he was kept out of the loop on this, he does not know anything about equipment and couldn't do an inventory. Complainant recounted that on May 11, 2012, S2 called him about doing the inventory, and he gave S2 the same explanation he gave before. Complainant stated that S2 replied that it did not matter if S1 was ordering equipment, it is up to the general contractor to figure out a way to capture the inventory. According to Complainant, they argued and Complainant ended up hanging up the telephone, and the same day his staffing firm terminated him.
ANALYSIS AND FINDINGS
We will assume, for purposes of analysis, that the Agency jointly employed Complainant.
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Complainant also alleges that he was subjected to harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
To prevail on his disparate treatment claims, 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 in this case, however, since 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).
We agree with the AJ's finding that Complainant failed to prove discrimination. While the parties disagree on whether some examples of Complainant's work and authority being constricted occurred, the record as a whole shows that the constriction occurred for non-discriminatory reasons. First, S1 was a hands on manager who tended to perform front line tasks. Second, Complainant and S1 - who was also a COTR - had different views on Complainant's scope of work pursuant to the contract. Third, to provide good service, Agency management utilized backups when Complainant was not available.
Likewise, what Complainant viewed as stark and at times harsh treatment, S1 viewed as businesslike, direct and professional. We acknowledge that it was harsh for S1 to remind Complainant, in response his challenging S1 on his responsibilities that the Agency could choose not to exercise another option year if Complainant did not provide the required services. More likely than not, these comments were not based on any of Complainant's protected bases. First, an employer's expectations are different with a contact employee on a yearly option and later six month extensions - less loyalty. Further, S1's view (which S5 held by March 2012), was that the contract monetary costs for Complainant's administrative resource service - well over six figures - was excessive and their site, like most or all others, could absorb the duties internally.
While S1 did not recall getting into a heated argument with Complainant, in his own version of events Complainant's recounting tends to show he provoked the argument by ignoring S1's inquiries, later refusing to discuss the matter, and saying they never accomplish anything.
Regarding not being permanently hired, Complainant averred that in 2009, S4 said he could not hire him permanently because he was a contractor, yet IRM hired two white contractors. Complainant wrote that after hearing this he did not apply for a permanent position. S4 was not asked about this - he was asked about the two white comparative employees. Complainant has not proved discrimination regarding this manner - assuming S4 made this remark, it is not clear what he meant - it could mean that a contractor could not convert to permanent status non-competitively. Further, S4 was not involved in the hiring of one of the white contractors, and the second was not in contract status when he was hired competitively. The Agency has explained why Complainant was not maintained on contract - his administrative resource function was taken over internally, and Complainant has not shown he was disparately treated regarding this.
S1 was not onboard when Complainant started serving the Agency in August 2007 and was required to have a clearance to gain access to the Agency's network - which allegedly took some nine months. Complainant does not accuse the predecessor of S1, who was there when he came onboard, of discrimination. The record shows that by 2008 or 2009, not long after coming on board, S1 initiated the clearance process for Comparison 1, in response to an Agency initiative to identify and secure clearances for those who needed them - not 201l. Complainant has not proven discrimination regarding this matter.
Regarding being terminated about six weeks before the extension of the provision of the contract providing for his services was scheduled to retire, S2 explained that Complainant refused to perform a task he assigned him, and when he discussed the matter with Complainant he got very upset, hung up the telephone, and then ignored his telephone calls. S2 stated that he contacted the Agency Contracting Officer and the general contractor, and said he wanted Complainant removed until he agreed to perform the work within the scope of the contract.
In his statement, Complainant corroborated this account - he declined to perform an inventory of equipment as requested by S2 and he hung up the telephone on him. Complainant explained that he was unable to perform an inventory because S1 and others were now ordering devices and he was kept out of the loop on this, so he does not know anything about equipment and couldn't do an inventory. S2 believed that it was up to Complainant and the general contractor to figure out a way to an inventory. Rather than telling S2 that he would do whatever he could to try coming up with a method of doing an inventory, he simply declined, hung up the telephone, and ignored S2's further calls. Given this, Complainant has not shown that the call S2 made to the Contract Officer and general contractor was motivated by discrimination.
Applying the theories of harassment and disparate treatment, we find that Complainant has failed to prove discrimination or reprisal.
The AJ's decision, which became the Agency's final action, is AFFIRMED.
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
September 26, 2016
__________________
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.
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