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

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020004949 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004949 Hearing No. 570-2019-01626X Agency No. 2004-0688-2018100153 DECISION 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 July 28, 2020, final order concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Diagnostic Radiologic Technologist, GS 9 at the Agency’s Washington, D.C. VA Medical Center in Washington, D.C. On January 7, 2018, Complainant filed a formal EEO complaint, that was subsequently amended, claiming that the Agency discriminated against him and subjected him to a hostile 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. 2020004949 2 work environment based on race (African-American), sex (male), color (Black), age (over 40), and in reprisal for prior protected EEO activity2 when: 1. from November 1, 2016 and ongoing, Complainant has not [been] given an opportunity to work over-time [sic]; 2. on September 16, 2017, the Contract Diagnostic Technologist accused Complainant of taking an alleged X-ray of a patient without a physician’s order;3 and 3. on September 4, 2018, Complainant was denied tuition assistance to attend a Bone Densitometry Radiology course. The Agency accepted the formal complaint for investigation into the allegations of discrimination. After the investigation was completed, Complainant timely requested a hearing before an EEOC AJ. Subsequently, the Agency filed a motion with the AJ to dismiss the formal complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1) and 1614.109(b) for failure to state a claim. The Agency argued that Complainant was not aggrieved, and the Agency also argued that a decision in the instant matter could be decided without a hearing, by summary judgment, because there were no genuine issues of material fact. On July 23, 2020, the AJ issued a decision after determining that Complainant’s opposition to the Agency’s motion was untimely.4 The AJ granted the Agency’s motion to dismiss. The AJ also indicated that there was insufficient evidence to support a finding that Complainant was discriminated against as alleged. On July 28, 2020, the Agency issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant, through counsel, argues that the AJ improperly dismissed the formal complaint for failure to state a claim. Complainant asserts that he was aggrieved, the claims at issue were adverse actions, and collectively these claims were sufficiently severe and pervasive enough to establish a hostile work environment claim. 2 Complainant testified that the EEO activity he claims is the instant complaint. The record indicates that Complainant initiated EEO Counselor contact on October 5, 2017. 3 The record indicates that this alleged incident resulted in Complainant receiving a written counseling. 4 The AJ determined that the opposition was untimely submitted by one day and Complainant failed to provide good cause for the untimely filing. Therefore, the AJ struck Complainant’s opposition from the record. 2020004949 3 ANALYSIS AND FINDINGS As an initial matter, we note that there was a full investigation of the claims at issue before the AJ issued a decision dismissing the formal complaint on procedural grounds. The AJ explains in the decision that the record is “fully-developed,” additional discovery would be “futile,” and any further development of the record “is unlikely to lead to a finding of discrimination and preponderant evidence fails to establish that Complainant was subjected to discrimination.” Essentially, the AJ asserts in the decision that there are no genuine issues of material fact. Therefore, given these circumstances, we construe the AJ’s July 23, 2020 decision as more in the nature of a decision issued on the merits by summary judgment, pursuant to 29 C.F.R. § 1614.109(g). 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). 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant generally asserts on appeal that there were material facts in dispute, he has not pointed with any specificity to particular evidence in the investigative file or produced other evidence that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020004949 4 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). Denial of Overtime (claim 1) Complainant’s first level supervisor (S1) testified that before August 2017, Complainant had been approved to work overtime. S1 noted Complainant only wanted to work overtime when it was convenient for him. S1 indicated that each technician was given two days to work overtime and Complainant was assigned Fridays and Saturdays, but Complainant turned these overtime opportunities because he did not want to work overtime on these days. S1 further indicated that Complainant was able to work more overtime hours with Friday and Saturday as his designated days, while the other employees who had designated overtime days scheduled during the week. Additionally, S1 clarified that Complainant injured his shoulder in August 2017, and he did not work overtime after this injury. S1 explained that following the injury, Complainant was placed on workman’s compensation and S1 received a letter from workman’s compensation indicating that employees receiving workman’s compensation benefits were not allowed to work overtime. S1 further explained that he has assigned Complainant to light duty since the August 2017 injury because he has not received confirmation from workman’s compensation that Complainant is able to return to work. The record includes November 2016, December 2016, March 2017, May 2017, and June 2017 emails from Complainant to S1 and S2 notifying them of the overtime hours he worked. Written Counseling (claim 2) S1 explained that his supervisor (S2) notified him that Complainant had taken an X-ray of a patient, who was also an employee,5 without a physician’s order. 5 S2 testified that the patient asked Complainant to take a X-ray of his sinuses because the patient-employee had a headache. 2020004949 5 S1 further explained that he issued a letter of counseling to both Complainant and the patient- employee because technicians are not supposed to admit ionized radiation on patients without a doctor’s official order. S1 indicated that the patient-employee took responsibility for his actions, but Complainant did not even though Complainant’s marker6 was used on the X-ray and the patient-employee identified Complainant as the individual who ran the X-ray. S1 acknowledged that he was directed by S2 to report the authorized X-ray to the American Registry of Radiologic Technologists (ARRT) even though S1 did not think it was necessary to do so. S1 explained that he reported the incident because did not want to be subjected to an insubordination charge by S2. However, S1 explained that S2 informed him that Complainant’s actions were an ethics violation and S2 showed S1 the policy on the matter. Nevertheless, S1 explained, and Complainant confirmed, that the ARRT did not revoke Complainant’s license. S2 acknowledged that the unauthorized X-ray was a reportable offense and that management was responsible for reporting the incident to the ARRT. Specially, S2 explained that he was required by the Rules of Ethics to notify ARRT of any ethics violations within thirty days of occurrence. S2 further explained that Complainant was ultimately responsible for the unauthorized X-ray because his markers were on the file and consequently, Complainant “might have had a step above the letter of counseling.” Denial of Tuition Assistance (claim 3) S2 acknowledged that he did not approve Complainant’s request for tuition assistance because Bone Densitometry relates to Nuclear Medicine. S2 explained that Nuclear Medicine is not directly related to Complainant’s position which is in Diagnostic Radiology. S2 further explained that he only approves educational training that is directly related to an employee’s job field. However, S2 clarified that he notified Complainant that he could take the course and associated time off if he paid for the course himself. Both S1 and S2 acknowledged that they became aware of Complainant’s complaint, but they denied that their actions toward Complainant were motivated by retaliatory animus. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the reasons proffered by management witnesses for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, color, age, or retaliatory animus for his prior protected EEO activity. 6 S1 explained that X-rays are identified by markers which consist of the technician’s initials on the film. S1 stated that the initials on the X-ray film at issue were Complainant’s initials. 2020004949 6 Harassment To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to 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 his statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 a protected basis - in this case, his race, sex, color, age, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s complaint of discriminatory harassment as evidenced by the events in claims 1 through 3 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his race, sex, color, age, and reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The Agency's final order adopting what we construe as the AJ’s summary judgment decision concluding no discrimination is AFFIRMED. 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. 2020004949 7 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. 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. 2020004949 8 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 February 22, 2021 Date