[Redacted], Alden V, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2022000600 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alden V,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000600 Agency No. 2001-0672-2021100795 DECISION On November 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 28, 2021 final decision concerning an 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 During the relevant time, Complainant worked as a Health Aide, W-3, at the Agency’s Pathology and Laboratory Medicine, VA Caribbean Healthcare System in San Juan, Puerto. Complainant was converted from a Housekeeping Aide, W-2 position in Facilities Management, to a Health Aide, WG-3, temporary appointment on September 27, 2020, not to exceed September 30, 2021. On February 5, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of national origin (Argentinean-American), sex (male), and reprisal (he complained to management of harassment by a co-worker) when: 1. On or about October 16, 2020, Complainant’s co-worker (CW) micromanaged, yelled at, stood too close to, and called VA Police on him. 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. 2022000600 2 2. On or about October 16, 2000, his first-level supervisor and other (unnamed) managers ignored his complaints about CW. 3. Effective October 16, 2020, Human Resources Officer terminated his employment during his probationary period. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its October 28, 2021 final decision, the Agency found no discrimination or unlawful retaliation based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Harassment: Claims 1 and 2 To prove a discriminatory harassment work environment 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. Complainant must also provide that the conduct was taken because of a protected basis - in this case, his national origin, sex or engagement in protected 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The Medical Technician Supervisor (“Supervisor”) (Caribbean/Hispanic, female) denied subjecting Complainant to harassment. During the relevant period, the Supervisor said Complainant and CW were co-workers and they needed to work as a team. She explained that both Complainant and CW were assigned to the same Covid-19 screening checkpoint where there was a Police Officer present to ensure the safety of the employees and guests. The Supervisor stated that Complainant accused CW of calling the police on him due to an argument which escalated between Complainant and CW. She stated that CW called the police on Complainant during the escalation because she was afraid of Complainant. Once the Supervisor was notified of this incident, she immediately reassigned Complainant to a different Covid-19 screening protocol checkpoint. She stated that Complainant got upset and kept “doing the wrong things” in the new Covid-19 screening/checkpoint gate. The image which emerges from considering the totality of the record is that there were conflicts and tensions with his coworker, CW, that left Complainant feeling aggrieved. 2022000600 3 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a personality conflict. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, there is simply no evidence beyond Complainant’s bare assertions that his conflicts with CW was motivated by discriminatory animus. Complainant’s claim of discriminatory harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Disparate Treatment: Claim 3 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, 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, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated, non-discriminatory reasons for the termination of Complainant. Complainant stated that on October 15, 2020, the Supervisor handed him a letter of termination. The Supervisor stated that she received three Reports of Contact regarding Complainant’s performance, behavior, and work assignment. 2022000600 4 Specifically, the reports stated Complainant did not follow protocols questions, did not follow Covid-19 social distance rules, and abandoned his daily assignment without notification. At least one of these reports was written by CW. Subsequently, the Supervisor began the fact-finding process and turned in the result to the Chief, Clinical Operation of the Covid-19 team. The Clinical Care Branch Director (“Director”) (Puerto Rican, female) she proposed terminating Complainant’s employment due to his inappropriate conduct. Specifically, she stated that Complainant failed to follow his Lead’s instructions as documented in various reports of contacts. She stated that she received five complaints from other co-workers regarding the inappropriate behavior of Complainant. Thereafter, the Director has recommended that Complainant’s appointment be terminated due to inappropriate workplace behavior, effective October 16, 2020. Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for his termination were really a pretext designed to mask the true discriminatory motivations based on his national origin and/or sex or resulting from unlawful retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022000600 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000600 6 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 12, 2022 Date