[Redacted], Emanuel W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 14, 2022

Appeal No. 2022001482 (E.E.O.C. Nov. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emanuel W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001482 Agency No. 2001-0619-2018105901 DECISION On January 22, 2022, 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 January 26, 2022, final decision 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Medical Supply Technician, GS-06, for the Sterile Processing Services of the Central Alabama VA Medical Center in Montgomery, Alabama. Believing that he was subjected to discrimination and harassment based on his race (Black) and sex (male), Complainant filed a formal complaint on September 25, 2018. Specifically, Complainant alleged: 1. on August 21, 2018, his second level supervisor, Chief, Sterile Processing Services (SPS), issued him a written counseling. 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. 2022001482 2 2. Between January 2018 and September 12, 2018, he was subjected to harassment including the [event in claim (1)] and the following incidents: a) His co-worker, MST Team Lead, approached him in an angry manner with her hand raised as if she was going to “strike” him, and management failed to address this incident; b) MST Team Lead made derogatory comments about his work performance; and, c) MST Team Lead falsely accused Complainant of raising his hand at her.2 After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Regarding claim (1), the Agency reasoned that management proffered a legitimate, non- discriminatory reason for issuing Complainant the written counseling. Specifically, the Agency found that during the June 12, 2018 conflict with the MST Team Lead (“Team Lead”) (Asian, female) Complainant cursed at her and threatened to hit her. While Complainant disagreed with management’s decision to discipline him, he failed to show that the reason provided was pretext to mask discriminatory animus. For example, regarding Complainant’s contention that Team Lead exhibited similar conduct, during a January 16, 2018 incident, and was not disciplined, the Agency found the circumstances to be distinguishable. According to the Agency decision, witnesses to the January 2018 incident stated it was unclear whether Team Lead was simply pointing her finger in expressing her authority or intending to strike Complainant, and she did not use profanity. Regarding the claim of harassment, claim (2), the Agency determined that Complainant failed to establish that the alleged events occurred as alleged. Complainant filed the instant appeal. He provides no brief or contentions. In response, the Agency maintains that its decision was proper and requests that its finding of no discrimination be affirmed. 2 In its final decision the Agency referred to the events comprising claim (2) as “Incident 1” through “Incident 4”. 2022001482 3 ANALYSIS AND FINDINGS 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”). Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the August 2018 written counseling3 memorandum itself states that Complainant was being issued the discipline because he raised his arm to strike Team Lead and used profanity toward her. Complainant was instructed to treat all employees with dignity and respect. 3 The memorandum noted that a proposed reprimand was reduced to written counseling. 2022001482 4 A summary of an internal investigation into the incident, dated June 22, 2018, reflected that a witness corroborated the Team Lead’s account (i.e. that Complainant told Team Lead to “get the fuck back” and that he was going to “knock the fuck out of her”, and raised his hand as if to hit her.) The witness (“Co-worker A”) (African American, female), attested to the EEO investigator that Team Lead brought an error to Complainant’s attention. Specifically, she noted that Team Lead did not “yell” or make a “fuss”. In response, however, Complainant said “who the fuck is she talking to?” Co-worker A then offered to correct the mistake, and Team Lead stated she wanted to take a photo for educational purposes. According to Co-worker A, as Team Lead was trying to take the photo, Complainant said: “get the fuck back, get the fuck back before I knock the fuck out of you.” He then raised his hand, and Co-worker A stated she put her hand on his arm and told him to take a break and go calm down. Co-worker A believed that if she had not been standing between the two, Complainant would have slapped Team Lead. Complainant attested that Team Lead told him to redo the sterilization in an aggressive and condescending manner, and he denies using profanity or raising his hand. However, he has not established that the reasons for the written counseling were pretext. He asserted that Team Lead wanted to take a photo of the error to “get me in trouble”, rather than for educational purposes, but has not shown Team Lead was motivated by discriminatory animus. We agree with the Agency that Complainant has not met his burden and shown that the written counseling was discriminatory. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To prove his harassment 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 prove that the conduct was taken because of a protected basis - in this case, his race or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2022001482 5 In support of his harassment claim, Complainant described a disagreement that occurred during a morning meeting: Team Lead wanted their department to retrieve equipment that needed sterilization and Complainant wanted to maintain the practice of having employees from other departments bring the items to them, particularly because SPS was short-staffed. According to Complainant, Team Lead got out of her seat on the other side of the room and “charged me as if she was going to hit me” (claim (2)(a)). In response, he attested he ran into a neighboring office. When asked why he believed Team Lead wanted to harm him, Complainant explained “Because I was letting the people know that we were doing things outside of our scope of work.” As for how the incident was related to his race, Complainant stated that her predecessor was an African American who followed procedures. Regarding any connection to his sex, Complainant simply stated “She was my trainer . . . and I guess she felt as though I was her pet.” However, witness testimony does not support Complainant’s version of the event. Co-worker B (Black, female) attested that Team Lead’s intent was not clear and that she could have been “just standing up and pointing her finger and shaking it”. Co-worker C (Black, female) also described Team Lead as “walking towards [Complainant] with her finger pointing outward towards him.” The Report of Contacts issued immediately following the incident reflect that during the morning meeting Complainant said he could not hear Team Lead, so she repeated her statements more loudly. When Complainant complained that he still could not hear her, Team Lead continued speaking while moving closer and pointing at him. Claims (2)(b) and (2)(c) occurred as part of the event considered in claim (1). As previously noted, the instant record does not reflect the incident transpired as Complainant contends. Rather, witness testimony establishes that Team Lead spoke in a professional manner when noting an error made by Complainant, and that Complainant did respond inappropriately. Here, Complainant has not shown he was subjected to actions that were sufficiently severe or pervasive that a reasonable person in his position would consider it to be abusive. Moreover, he has failed to establish any nexus between Team Lead’s actions and his race or sex. Therefore, the Agency’s finding that Complainant did not prove he was subjected to unlawful harassment was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 2022001482 6 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). 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). 2022001482 7 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 November 14, 2022 Date