[Redacted], Christopher H., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020003508 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003508 Agency No. 200I-0626-2019102036 DECISION Complainant timely 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 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of sex, disability, and age; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a Strategic Planner in Murfreesboro, Tennessee. 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. 2020003508 2 Complainant began working for the Agency as a Strategic Planner in September 2018 before he was reassigned into a different position in May 2019. The Deputy Director served as Complainant’s first-level supervisor (S1) while Complainant worked in the Strategic Planner position. On March 7, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of sex (male), disability (physical), and age (49) when: 1. On December 19, 2018, S1 spoke to him in a sarcastic tone regarding a weekly planning meeting. He further alleges that S1 asked a co-worker to leave the meeting then “lit into” him, continuing to speak harshly to him regarding his responsibilities. 2. On January 18, 2019, S1 told him she would not endorse him or allow him to apply for the Agency’s Healthcare Leadership Program. 3. On January 25, 2019, S1 told him that he had better look up the process for the Strategic Planning and Advisory Board Charter. 4. On February 6, 2019, during a weekly planning meeting with other employees, S1 went into a rage directed at him stating, “next time [he] had better stay with the team.” 5. On February 8, 2019, S1 loudly told him to put a telephone down, in the presence of others in the room. 6. On February 12, 2019, during his scheduled 90-day review, S1 allowed a co-worker to sit in and take notes. He further alleges that during the review, S1 told him he had 90-days to start doing his job. 7. On February 13, 2019, S1 told him that the Agency’s Director would not approve his request to report to another Agency official because he (Complainant) “did not like [S1]” He alleges also that S1 advised him that if he did not like S1’s decisions, he should look for another job. 8. On February 15, 2019, S1 along with another employee, brought to him a stack of 16 memos he had prepared, tossed then on his desk and said, “you placed a comma beside my name and before the mail code that doesn’t belong, so fix this.” 9. On February 26, 2019, S1 along with another co-worker, told him that he “had better get [the] engineering suspense finished - no exceptions…” He further alleges that S1 then slammed the door and walked away. 2020003508 3 10. On March 4, 2019, S1 went into his shared office and began a conversation with his co-worker, but never acknowledged him even after he said, “Good morning.” Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency specifically found, with regard to claim 2, that it articulated a legitimate, nondiscriminatory reason for not endorsing or allowing Complainant to apply for the Healthcare Leadership Program. The Agency noted that S1 informed Complainant that he had only been in his Strategic Planner role for three months, and therefore it was too soon for him to apply for the Leadership Program. The Agency also noted that Complainant was advised that that they could revisit the Leadership Program in 2020, after Complainant gained more experience in his position. The Agency found that Complainant did not show that this legitimate, nondiscriminatory reason was pretextual for discrimination or was motivated by discriminatory animus. The Agency additionally determined that Complainant did not show that he was subjected to a hostile work environment regarding claims 1-10. In so finding, the Agency observed that Complainant did not offer any evidence of a nexus between management’s actions and his protected classes. The Agency noted, moreover, that Complainant’s harassment claim focused largely on incidents in which S1 attempted to address Complainant’s workplace conduct and performance deficiencies. The Agency found that Complainant did not establish that its actions were severe or pervasive enough to rise to the level of a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant asserts that management officials made several false statements about him in the record. For example, Complainant maintains that a management official attested that he lied about his resume and that he caused the organization to miss deadlines, which were simply not true. Complainant additionally contends that the Facility Planner made untrue statements about him in her affidavit as well. Complainant specifically maintains that the Facility Planner falsely said he had poor grammar and did not know how to create power point or excel documentation. Complainant further maintains that S1 subjected him to fits of rage, micromanaged him, chastised and belittled him in front of coworkers, and ignored him, among other things. In response, the Agency maintains that Complainant has not provided any evidence to show that its actions were due to his protected classes. The Agency further contends that Complainant has not established that its actions towards him were severe or pervasive enough to rise to the level of a hostile work environment. The Agency requests that we affirm its final decision finding no discrimination or harassment. 2020003508 4 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment (Claim 2) To prevail in a disparate treatment claim such as this, 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 she 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); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his sex, disability, and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions with regard to claim 2. Namely, S1 explained that she verbally informed Complainant that she would not endorse him for the Agency’s Healthcare Leadership Program because Complainant had only been in his new role as a Strategic Planner for three months. S1 averred that she asked Complainant to concentrate on learning his Strategic Planner position and that they would revisit the Leadership Program the next time it became available in the future. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not shown that S1’s reasons were pretextual or were motivated by discriminatory animus. In so finding, we note that there is no dispute that Complainant had only been working in his new role as a Strategic Planner for a short period of time when he asked to apply for the Healthcare Leadership Program. 2020003508 5 Beyond Complainant’s bare assertions, there is nothing in the record to corroborate Complainant’s allegations that S1 treated him differently based on his protected classes. We find that Complainant has not established that he was subjected to discrimination with respect to claim 2. Hostile Work Environment (Claims 1-10) Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to claim 2. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). With respect to claims 1, and 3-10, we find that Complainant has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant's protected classes. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Moreover, we note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory animus. As such, we find that Complainant has not established that he was subjected to a hostile work environment based on his protected classes. 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 no discrimination. 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 2020003508 6 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 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. 2020003508 7 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 11, 2021 Date