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

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020003407 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frderick H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003407 Agency No. 2003-0635-2018102460 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 14, 2020, finding no discrimination concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lieutenant, Police Officer, GS-8, in Police Service at the Department of Veterans Affairs, Oklahoma City Veterans Health Care System located in Oklahoma City, Oklahoma. On May 2, 2018, Complainant filed an EEO complaint, which was amended, alleging a hostile work environment in reprisal for prior EEO activity when: 1. On or about November 6, 2017, his then second level supervisor (S2), Chief of Police, issued him a proposed reprimand. 2. On November 24 - 26, 2017, S2 initially denied his previously approved holiday leave. 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. 2020003407 2 3. On December 11, 2017, his then first level supervisor (S1), Assistant Chief of Police, told him, “It is up to the supervisor to find coverage for the shift, and if coverage can’t be found, your leave request will be denied.” 4. On December 13, 2017, S2 and S1 relieved him of his duties as a member of a hiring and/or selection panel. 5. On December 14, 2017, S2 falsely accused him of using his rank to threaten colleagues into covering his shifts. 6. On December 22 - 24, 2017, S2 initially denied his previously approved holiday leave. 7. On January 5, 2018, S2 told him that he could not return to full-time duty until he was medically cleared, even though he had been medically cleared since December 13, 2017. 8. On February 7, 2018, S2 stated to him, “Dammit, I don’t care what [S1] said, they can do it, I am still the fucking Chief,” S2 then told him that he was suspending his police duties, pending the outcome of an administrative fact-finding investigation. 9. On February 7, 2018, S1 rated him fully successful on his annual performance rating. 10. On February 7, 2018, he learned that his coworker (C1) sent an email to the administrative staff, stating, “[Complainant] refused to assist other lieutenants with the candidate selections for the upcoming interviews.” 11. On February 7, 2018, S2 denied his request to be reassigned to another department. 12. On February 7, 2018, S2 issued him a letter of reassignment, reassigning him from the position of a Police Officer to the position of a Telephone Operator. 13. On February 8, 2018, he learned that S1 “lied” to him about C1’s duty weapon being removed. 14. On February 9, 2018, S2 canceled and/or denied his Criminal Investigator 2 training and Advanced Police Officer training that had been previously approved. 15. On May 7, 2018, the Acting Chief of Police removed his credentials, weapons card, keys, and badge, without a final disposition from the fact-finding inquiry. 16. On July 18, 2018, the Healthcare System Director issued him a letter placing him on Authorized Absence, pending a decision on his proposed removal from federal service. 17. On July 18, 2018, the Assistant Director issued him a letter of proposed removal from federal service concerning his conduct. 2020003407 3 18. On August 7, 2018, the Assistant Director issued him a letter reassigning him from the Police Service to performing nonsupervisory release of information duties.2 Complainant does not challenge the Agency’s framing of his claims. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The investigative report reflects that S1 and S2, who retired from their employment at the Agency in April 2018, and March 2018, respectively, did not submit an affidavit requested by the investigator. Regarding claims 2, 3, 5, and 6, the record reflects that it was a required, normal practice in the police service unit for employees, including Complainant, to find another employee to cover their shift if they were to take leave. For those days at issue, Complainant could not find an employee to cover his shift due to shortage of staff in his shift. Complainant acknowledged that he put a shift coverage request on the bulletin board on December 14, 2017. Regarding claim 7, Complainant indicated that he returned to full-time duty when Human Resources confirmed that he was cleared to return to full-time duty. Complainant does not claim that his returning to duty was delayed as a result of this incident. Regarding claim 9, for his annual performance rating from October 1, 2016 to September 30, 2017, Complainant received “Fully Successful.” The record reflects that during the rating period, on September 17, 2017, Complainant used another officer’s login credentials to access the Agency network and email system in violation of the Agency’s Privacy and Information Security Awareness and Rules of Behavior. The record reflects that claims 4, 8, 10 - 18, were directly related to the incident occurring on February 7, 2018. Complainant clarified that claim 4 occurred as a result of his confrontation with C1 on February 7, 2018, and not on December 13, 2017. On February 7, 2018, C1 submitted a written statement to management indicating that on that day around 6:50 pm while on duty, Complainant approached C1 confronting C1 about C1’s action of sending an email to management that Complainant never talked to C1 about the upcoming applicant interviews. Complainant then said to C1, “You’re a fucking liar” twice, and he deliberately and quickly raised his right hand, similar to a fighting position up near the right side of C1’s face. C1 thought Complainant was going to physically assault C1. As C1 was 2 The Agency dismissed claim 1 and 18 on procedural grounds (stating the same claim as previously adjudicated and untimely EEO Counselor contact, respectively). Complainant has not challenged the dismissals of these claims and we see no reason to disturb the dismissals. We note that the Agency considered, as do we, claim 18 as part of the harassment claim. . 2020003407 4 walking away, Complainant called C1, “Motherfucker” at least twice and C1 was a “motherfucking liar” and it “wasn’t over.” C1 indicated that “I am scheduled to do employee interviews with [Complainant] in the morning but am quite apprehensive for my safety because of his aggressive, unprofessional and irrational behavior tonight.” Upon receipt of C1’s statement, management initiated an administrative fact-finding investigation of the incident. Pending the investigation, Complainant was temporarily removed from his regular Police Officer duties and was reassigned to temporary non-supervisory Telephone Operator duties within the Police Service Unit. There was no loss in pay or status as a result of the temporary assignment. Management indicated that it was a standard procedure, pending the administrative fact-finding investigation, that Complainant be temporarily reassigned to perform non-supervisory duties within his Police Service unit (not another unit), and that only Telephone Operator duties were available at that time. Complainant’s credentials, weapons card, keys, and badge were removed pending the outcome of the fact-finding investigation. Further, Complainant could not keep his badge and credentials because he was not up to date with training, firearms qualifications, and defense tactic. Management indicated that Complainant’s training was not denied; rather the training was postponed to the next available training. Both C1 and Complainant were scheduled for the training but C1’s training tuition was non-refundable, whereas Complainant’s training was refundable. Further, management determined that it would not be appropriate to have both Complainant and C1 in the same training class unsupervised pending the investigation. Complainant was issued a proposed removal on July 18, 2018, based on the severity of his conduct on February 7, 2018, which was substantiated in the fact-finding investigation. Complainant was placed on authorized absence to avoid any disruption of the health care system pending a decision on his proposed removal. Due to Complainant’s subsequent filing of a Whistleblower complaint, Human Resources recommended that Complainant be returned to work and reassigned to non-supervisory duties pending a removal decision. Complainant filed the instant appeal. On appeal, Complainant indicates that on September 11, 2019, he was issued a letter of decision on his July 18, 2018 proposed removal. In that letter, the Agency indicated that the removal decision had been held in abeyance pending Complainant’s allegations of July 22, 2018, under Office of Accountability and Whistleblower Protection. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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, 2020003407 5 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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant had difficulty finding a volunteer to cover his shift in order to take leave. Further, Complainant’s conduct on February 7, 2018, caused the Agency to take subsequent actions, including reassignments and a proposed removal. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, 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. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding 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. 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 2020003407 6 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. The court has the sole discretion to grant or deny these types of requests. 2020003407 7 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 30, 2021 Date