[Redacted], Cole E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionJun 7, 2021Appeal No. 2021001912 (E.E.O.C. Jun. 7, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cole E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001912 Agency No. 2003-0667-2018-102883 DECISION On September 29, 2020, 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 September 2, 2020, 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Respiratory Therapist, evening shift, at the Agency’s Overton Brooks Veterans Affairs Medical Center in Shreveport, Louisiana. On April 12, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on race (African-American) and in reprisal for prior protected EEO activity when: (a) On December 11, 2017, Complainant’s first-level supervisor (“S1”) (Caucasian), Supervisor, Respiratory Department, issued Complainant a Letter of Expectations 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. 2021001912 2 instructing Complainant to contact his subordinates via e-mail only and refer staffing issues to the appropriate supervisor, and advising Complainant that it was inappropriate to threaten staff members with disciplinary actions. (b) On January 11, 2018, S1 issued Complainant another Letter of Expectations for failing to follow instructions, advising him that he should maintain a professional attitude, and follow the chain-of command for staffing disagreements. 1. On December 31, 2017, S1 “threatened” Complainant with more “paperwork” (i.e. written disciplinary actions) upon Complainant’s return to the office. 2. On January 2, 2018, S1 instructed Complainant to offer new employees a weekend shift and, on January 8, 2018, informed Complainant that he (S1) would ask the new employees if they wanted to work a weekend shift, despite Complainant’s objections. 3. On January 12, 2018, S1 blamed Complainant for the high turnover rate on the evening shift and S1 attempted to move one of Complainant’s new employees to a weekend shift, which would have caused Complainant’s shift to be short-staffed. After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing before an AJ, but subsequently withdrew that request. The Agency then issued its final decision, finding no discrimination or unlawful retaliation was established. The instant appeal followed. Complainant states that S1 opposed him hiring a Black female veteran. When that individual was hired, Complainant alleged S1 began targeting him in retaliation. Complainant argue that this led to S1’s issuance of the two letters of expectations. Regarding the issue of not following the proper chain of command, the topic of the second letter, Complainant argues that he had to go above S1 and S1’s supervisor, because S1 continued to retaliate against him. Complainant avers that there have been ongoing EEO actions against S1 regarding S1’s opposition to hiring people of color. Complainant states further that his email to all staff was to encourage the staff to work together and that S1’s response was to coerce some of the staff to write false allegations against Complainant. Complainant states that a supervisor rewrote the staff statements against him, when those statements were not sufficiently critical of Complainant. Complainant states that the chain of command starts with S1, who is constantly after Complainant’s job. Complainant adds that the Chief of Pulmonary (“Chief”) (race not identified) was the second in the chain of command, and did whatever S1 suggested, due to the Chief’s lack of experience. Complainant argues that he is being subjected to disparate treatment and that S1 is undermining Complainant’s authority. Complainant asserts that, since he was appointed to supervisor, the “nit-picking” began. 2021001912 3 Finally, Complainant discusses how S1’s attempts to sabotage him includes the removal of Complainant’s staff to cover S1’s weekend shift. Complainant states that this action includes the May 2018 removal of his subordinate to the night shift. Complainant relays how the removal of individuals from one shift to another was highly unusual and further evidence of how S1 was targeting Complainant. ANALYSIS AND FINDINGS 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 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 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). To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency 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). 2021001912 4 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). Claims 1(a-b) and 2 On December 11, 2017, S1 issued Complainant a letter of expectations. Assuming arguendo that Complainant established his prima facie case, the Agency articulated a legitimate, non- discriminatory rationale for S1’s actions. S1 testified that Complainant would email the entire department about his concerns over various issues. S1 stated that Complainant would address S1’s staff directly, and that some members of S1’s staff found Complainant’s actions threatening. S1 further testified that Complainant would discuss staff appraisal ratings with other staff members. Additionally, S1 stated that it was decided, following a grievance procedure, that Complainant should bring his staff issues, for staff not under his supervision, to the appropriate supervisor, and not directly to the staff. On January 10, 2018, S1 issued Complainant another letter of expectations. Again, we will assume that Complainant established his prima facie case of disparate treatment. The Agency articulated a legitimate, non-discriminatory rationale for S1’s actions. S1 testified that the letter was issued as a result of Complainant sending out a group text to most of the respiratory staff over the holidays, seeking staffing coverage, as well as telling S1 that S1 should be grateful to Complainant. S1 testified that his response to Complainant’s conduct was to request that Complainant be professional and respectful in all interactions with others through the letter. Complainant’s Claim 2 arises from an incident on December 31, 2017. Complainant stated that he was threatened with more “paperwork” or disciplinary action. S1 testified that there was no disciplinary action attached to letters of expectation. While Complainant states that S1’s motivation was based on discriminatory animus based on Complainant’s race and prior EEO activity, he does not present evidence to establish these allegations. Complainant must prove, by a preponderance of the evidence, that S1’s articulated reasons for the disputed actions were a pretext for discrimination. Beyond his bare assertions, Complainant has not satisfied his burden by providing evidence of discriminatory or retaliatory motivation for the matters at issue. 2021001912 5 Claim 32 On January 2, 2018, Complainant was instructed to offer new employees a weekend shift. On January 8, 2018, Complainant was informed, despite his objections, that new employees were going to be asked if they wanted to work a weekend shift. The Agency again provided a legitimate, non-discriminatory rationale for its actions. S1 testified that, while awaiting new hires, some areas were short staffed. S1 stated that Complainant was asked to have some of his staff work alternate shifts to cover the staffing shortage, but that Complainant declined. S1 testified that Complainant stated that he wanted to keep as many employees on evening shift as possible, even though, S1 acknowledged that the evening shift was at times overstaffed. S1 further stated that it was customary to offer evening shift staff a 12-hour weekend shift, because such a schedule provided coverage and enabled the evening staff an extra day off. S1 did not deny that the shifting of staff continued to occur as coverage was needed. S1 explained that day shift requires more work because there are four outpatient clinics that require staff, unlike the evening shift. On January 12, 2018, S1 blamed Complainant for the high turnover rate on the evening shift. S1 attempted to move one of Complainant’s new employees to a weekend shift, which would have caused Complainant’s shift to be short-staffed. S1 testified that Complainant is aware of the high turnover rate on the evening shift. S1 testified that he believed that the evening shift turnover was high because morale was low, and it has been since Complainant was supervisor. S1 also pointed to previous staff complaints of harassment, investigations performed, and continuing issues. S1 also stated that human resources has never recommended action against Complainant. S1 testified that he does not try to keep the evening shift short-staffed. Instead, S1 stated that he tried to spread the staff for equitable coverage. S1’s opinion as to whether or not Complainant had an impact on the turnover rate does not demonstrate discriminatory animus. The EEO process is not for workplace disputes about managerial style. Instead, the EEO process adjudicates matters involving allegations of discrimination. Complainant has failed to demonstrate, by a preponderance of the evidence, that anything S1 stated, and therefore, the Agency’s rationale are pretext for discrimination based on Complainant’s race or prior EEO activity. Finally, to the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, 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 prove that the conduct was taken because of his protected basis - in this case race or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2 The FAD lists three claims, but in numerous places in the record the Claim 3 is referred to as Claim 3 and Claim 4. For the sake of continuity, we will still only refer to Claim 3 as a single claim, but we will address all parts. 2021001912 6 Here, as we have already concluded, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race or retaliatory animus. His claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of 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 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). 2021001912 7 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. 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 June 7, 2021 Date Copy with citationCopy as parenthetical citation