Owen W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

2019000144 (E.E.O.C. Dec. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Owen W.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019000144

Hearing No. 410-2018-00173X

Agency No. 200I-0557-2017104229

DECISION

On September 20, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 16, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

ISSUE PRESENTED

The issue presented concerns whether the Agency discriminated against Complainant on the basis
of reprisal when it issued him performance counseling and written counseling.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Vocational
Rehabilitation Specialist, GS-1715-09, at the Carl Vinson VA Medical Center in Dublin, Georgia.

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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On August 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of reprisal for prior protected EEO activity arising under Title VII when:

1. On June 22, 2017, he was verbally counseled regarding his involvement with veterans
discharged from Rehabilitation Programs;

2. On July 5, 2017, he received performance counseling; and

3. On August 8, 2017, he received a Written Counseling.

The Agency informed Complainant on October 2, 2017, that it would only investigate claims 2
and 3. See October 2, 2017, Notice of Partial Acceptance. In procedurally dismissing claim 1, the
Agency found that the conduct at issue was not sufficiently severe or pervasive to warrant further
processing. The Agency also concluded that the allegations in claim 1 did not “either individually
or collectively, represent employer actions that would prevent or deter a reasonable person from
participating in the EEO process, as [Complainant] actually did file a complaint.”

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 Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision
without a hearing on August 9, 2018. In issuing a decision without a hearing in favor of the
Agency, the AJ initially found that there were no genuine issues of material fact to warrant a
hearing. The AJ then proceed to the merits of the case and found that the Agency had legitimate,
nondiscriminatory reasons for counseling Complainant, namely Complainant’s tendency to exceed
the scope of his duties. The AJ concluded that Complainant could not show that the Agency’s
articulated reasons were pretext for discrimination. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant’s contentions on appeal are addressed in our analysis of the appeal, infra. The
Agency requests that the Commission affirm its final decision adopting the AJ’s decision.

ANALYSIS AND FINDINGS

Decision Without a Hearing

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56.

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The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for 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
“material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, the record shows that the
AJ decided sua sponte to issue a decision without a hearing in favor of the Agency. Prior to issuing
the decision, the AJ directed Complainant to show cause as to why a decision without a hearing
should not be issued on claims 2 and 3.2 In his response to the AJ’s order, Complainant argued that
a decision without a hearing should not be entered against him because the Agency’s investigation
into his allegations was “woefully inadequate” and discovery was needed to further develop
relevant facts. Complainant also challenged the AJ’s conclusion that the named responsible
management official (RMO) was unaware of Complainant’s prior EEO activity, and he contended
that the RMO “never testified that she was unaware of [his] EEO activity. Rather, [the RMO]
testified that she did ‘not recall’ [his] prior EEO activity.” Complainant further contended that his
declaration that the RMO was aware of his prior EEO activity should “constitute pretext sufficient
to warrant a hearing in this matter.” Ultimately, the AJ determined that there are no genuine issues
of material fact or credibility that merited a hearing.

On appeal, Complainant contends for the first time that the Agency’s procedural dismissal of claim
1 was improper. In this regard, Complainant argues that the Agency’s determination that “the very
fact a discrimination claim was filed shows that the employer’s action failed to dissuade a
discrimination charge is circular and illogical.” He asserts that “[the] problem with this
determination is that its circular reasoning acts as a ‘Catch-22’ for complainants” because “[i]t
would prevent a retaliation claim from succeeding if, after the allegedly retaliatory act, the
[complainant] complained of retaliation or discrimination to EEO; but filing such a complaint with
the Agency is a prerequisite for a retaliation claim.” Complainant emphasizes that “[t]he inherent
illogic employing this self-cancelling rule would have the effect of barring any complainant from
ever going forward with a retaliation claim.” We agree.

In filing a claim of reprisal, it is not necessary for a complainant to demonstrate that he or she was
actually deterred from filing a complaint.

2 The AJ did not consider claim 1, and in his July 16, 2018, “Order to Show Cause Why Summary
Judgment Should Not be Entered,” listed claims 2 and 3 as accepted issues 1 and 2.
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The Commission has long held that the alleged adverse action need not actually deter a
complainant or others from engaging in retaliatory activity. Complainant v. Int’l Boundary &
Water Comm’n, EEOC Request No. 0520130669 (Feb. 11, 2014). Rather, any allegation of
adverse treatment that is based upon retaliatory motive and is reasonably likely to deter
Complainant or others from engaging in protected activity will suffice to state a claim. Lindsey v.
U.S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999); EEOC Enforcement Guidance
on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016).

In the instant case, while we agree with Complainant that the Agency’s determination with regard
to claim 1 is inconsistent with Commission precedent and poses an untenable Catch-22, we are
unable to review claim 1 on appeal because the record clearly shows that Complainant did not
challenge the Agency’s framing of his complaint. Specifically, we note that the Agency in its
October 2, 2017, Notice of Partial Acceptance clearly informed Complainant that he had seven
calendar days to challenge the way the Agency framed his claims. Complainant, however, failed
to do so. Therefore, we decline to address claim 1. See Norman v. Dep’t of Veterans Affairs, EEOC
Appeal No. 01A54105 (Oct. 12, 2005) (finding that complainant did not challenge the definition
of the accepted issue until after the report of investigation was completed, and therefore the agency
properly defined the accepted issue); Thomas v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120073634 (Apr. 3, 2009), req. for recon. den’d, EEOC Request No. 0520090465 (July 7, 2009)
(deciding to not address complainant’s claim that her complaint was improperly framed after
complainant failed to respond within seven days of the agency’s partial dismissal); Rehder v. U.S.
Postal Serv., EEOC Appeal No. 0120091221 (Jan. 14, 2011) (deciding not to address disability as
a basis after complainant did not object within seven days to the agency's partial acceptance);
Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120132166 (Sept. 22, 2014) (complainant
waived his opportunity to address the framing of his complaint).

As for the AJ’s issuance of a decision without a hearing on claims 2 and 3, Complainant contends
that the AJ should not have issued a decision without a hearing on claims 2 and 3 because a hearing
is necessary to address deficiencies in the report of investigation and resolve disputes as to whether
his supervisor was aware about his prior EEO activity. He further contends that the investigator
failed to interview witnesses who were present during the July meeting and that “there is no policy
or procedure in the Investigative File to indicate that performing more work than required under
one’s job description is improper.”

Our review of the record shows that the AJ carefully considered the entire record and found that
while the record was incomplete as to the circumstances that led to the initial reprimand, there
were no genuine issues of material fact to warrant a hearing. In so finding, the AJ noted that
Complainant freely admitted that he serviced a veteran outside of work hours and did not challenge
the Agency’s assertion that he strayed far beyond his job description. The AJ further noted that
Complainant admitted to making unwelcome statements about his supervisor’s age and
education/experience.

Given the absence of any material dispute as to the underlying conduct at issue, we find that the
AJ properly issued a decision without a hearing.
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In so finding, we recognize that Complainant desires a hearing to address deficiencies in the report
of investigation and resolve a dispute as to whether his supervisor was aware about his prior EEO
activity; however, we are disinclined to grant Complainant’s request for a hearing because the
record clearly shows that Complainant admitted to engaging in the very conduct that led to the
discipline at issue in claims 2 and 3. See ROI, pgs. 000004 and 000051-52. For this reason, we
agree with the AJ’s issuance of a decision without a hearing.

Disparate Treatment

To prevail on a claim of disparate treatment, Complainant must satisfy the three-part evidentiary
scheme fashioned by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must first 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n.13.

A prima facie case of reprisal requires Complainant to show that: (1) he engaged in a protected
activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to
adverse treatment by the agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25,
2000); Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318. 324 (D.
Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep’t of Veteran Affairs, EEOC Request
No. 05960473 (Nov. 20, 1997).

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks, at 511.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

Here, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
For claim 2, Complainant’s supervisor cited Complainant’s conduct on July 4, 2017, as the reason
for issuing Complainant written performance counseling on July 5, 2017. In this regard,
Complainant’s supervisor explained that on July 4, 2017, Complainant provided services to a
veteran that were outside the scope of his duties as a Vocational Rehabilitation Specialist.
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Regarding claim 3, Complainant’s supervisor explained that she issued Complainant a written
counseling memorandum on August 8, 2017, because Complainant made disrespectful comments
about her age and education/experience during a meeting on July 18, 2017.

As the Agency has articulated legitimate, nondiscriminatory reason for its actions, Complainant
now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996).
Indicators of pretext include, but are not limited to, discriminatory statements or past personal
treatment attributable to those responsible for the personnel action that led to the filing of the
complaint, comparative or statistical data revealing differences in treatment across various
protected-group lines, unequal application of Agency policy, deviations from standard procedures
without explanation or justification, or inadequately explained inconsistencies in the evidentiary
record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).

Regarding claim 2, Complainant stated that he disagreed with the charges in the performance
counseling memorandum because “[he] followed the Federal Code of Regulations, U.S.C., and
hospitals MCM-116 VA Handbook Directives.” ROI, pg. 000048. He also contended that
management’s articulated explanation for issuing him performance counseling was pretext for
reprisal because “[he] made the Director of the hospital aware as well as Congress.” Id.

As for claim 3, Complainant stated that he disagreed with the charges made in the written
counseling memorandum because he did not make offensive statements to his supervisor regarding
her age and education. ROI, pg. 000049. Rather, he only “talked about life in reference to age,
knowledge and wisdom.” Id.

After careful consideration of the evidence of record, including Complainant’s contentions on
appeal, we find no persuasive evidence that the Agency’s articulated reasons were pretext for
discrimination. The Commission has long held that agencies have broad discretion to set policies
and carry out personnel decisions and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No.
05940906 (January 16, 1997). Given the facts in this case, we find that Complainant failed to show
by the preponderant evidence that he was subjected to discrimination because the record clearly
reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We also find that
Complainant failed to persuasively establish pretext. In so finding, we recognize that Complainant
disagrees with the propriety of the Agency’s actions; however, his disagreement with the Agency’s
actions, without more, is insufficient to show that the Agency’s actions were due to his prior EEO
activity.

Moreover, even assuming arguendo that Complainant’s supervisor was aware of Complainant’s
prior EEO activity, we still find no discrimination. The Commission has long held that
“[p]articipation in the EEO process does not shield employees from uniformly applied standards
of conduct and performance; nor are the statutory anti-retaliatory provisions a license for
employees to engage in misconduct.” Berkner v. Dep’t of Commerce, EEOC Petition No.
0320110022 (June 23, 2011). See Martinez v. General Servs. Admin., EEOC Appeal No.
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0120122326 (Nov. 15, 2012) (mere fact that complainant engaged in protected activity does not
immunize her from appropriate disciplinary action); Hobbs v Dep’t of Agriculture, EEOC Appeal
No. 0120073032 (Mar. 25, 20l0) (where complainant was charged with absence without leave,
placed on leave restriction, and suspended for one day, Commission found that complainant did
not follow leave procedures and record lacked discriminatory animus).

Finally, we note that a finding of harassment on both claims is precluded by our determination that
the actions taken by the Agency were not motivated by discriminatory animus. See Oakley v.
United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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
was not discriminated against as alleged.

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.
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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

December 19, 2019
Date