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

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2020003521 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grady K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003521 Hearing Nos. 520-2018-00260X and 520-2019-00154X Agency No. 200H-0532-2017103668 and 200H-0532-2018102799 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 April 22, 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. BACKGROUND During the period at issue, Complainant formerly worked as an Electrician Supervisor, GS 10 at the Agency’s Canadaigua VA Medical Center in Canadaigua, New York. On August 30, 2017 and February 8, 2018, Complainant filed two formal complaints. The formal complaints consisted of the following matters: Complaint 1 (Agency No. 200H-0532-2017103668): Whether Complainant was discriminated against based on reprisal for prior protected EEO activity2 when on March 23, 2017, Complainant retired in lieu of removal (constructive discharge). 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. 2020003521 2 Complaint 2 (Agency No. 200H-0532-2018102799): Whether Complainant was discriminated against based on reprisal for prior protected EEO activity when on February 8, 2018, Complainant was informed that his application had been removed from consideration due to suitability issues, and he was not selected for the position of Electrician, WG 10, announcement number CARZ-10088297-18-DAF. After an investigation into the accepted complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing for each complaint. The AJ consolidated both complaints. On March 4, 2020, the Agency issued a motion for summary judgment. After receiving an opposition from Complainant and a reply from the Agency, the AJ issued a decision by summary judgment in favor of the Agency. On April 22, 2020, the Agency issued a decision implementing the AJ’s finding of no discrimination.3 The instant appeal followed. ANALYSIS AND FINDINGS 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. 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. 2 Complainant testified that he filed a prior informal EEO complaint on January 13, 2017, that was subsequently dismissed, against one of the responsible management officials in the instant complaint. 3 With respect to complaint 1, the AJ dismissed this claim finding that Complainant failed to establish a prima facie case for a constructive discharge. 2020003521 3 Constructive Discharge (Complaint 1) The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). Additionally, a complainant must prove the following to prevail on a constructive discharge claim: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Our review of the record supports that the AJ properly determined that Complainant has not met the required elements to prevail on a constructive discharge claim. Here, the record reflects that the Agency issued Complainant a proposed removal on December 2, 2016, which became effective on March 23, 2017. However, the record reflects that in lieu of termination, Complainant voluntarily retired from the Agency on March 23, 2017. A copy of Complainant’s personnel action states that Complainant “retired after receiving written notice on 3/23/17 of decision to separate for conduct-related issues.” Consequently, Complainant did not consider resigning from the Agency until after he received the Agency’s notice of removal. Additionally, the record further reflects that the working conditions were not so intolerable to prevent Complainant from wanting to return to the Agency. As evident in the matters addressed in complaint 2, Complainant reapplied for his prior decision at the same location within the same year that he resigned from the Agency. Therefore, we find that Complainant has failed to establish that he was constructively discharged from the Agency. Disparate Treatment (Complaint 2) 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). 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. 2020003521 4 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 Boarwd 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). The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for the Electrician, WG 10, vacancy announcement number CARZ- 10088297-18-DAF. Complainant’s second level supervisor (S2) testified that he recommended that Complainant’s application be passed over for the Electrician position after S2 heard from several of Complainant’s former co-workers who indicated that Complainant had “an axe to grind” with staff and it would be difficult for staff to work with him. S2 further explained that a committee investigated the allegation of disruptive behavior and determined that there was a consistent reporting of intimidating/bullying behavior by Complainant to his staff, disruptive and threatening behavior, including screaming and threatening job loss towards various employees, and a correlation of undesirable job delegations after negative interactions between Complainant and his employees, all during Complainant’s prior employment with the Agency in 2016. S2 also noted that following his retirement, Complainant sent text messages to his former employees and called some employees “liars” and “no-good f-kers.” Although S2 acknowledged that he was aware of Complainant’s prior EEO activity, S2 denied that he based his decision to issue a pass over request merely because Complainant had filed prior complaints. Rather, S2 submitted the request based on Complainant’s prior inappropriate behavior as well as Complainant’s inappropriate behavior towards co-workers after he retired. S2 further noted that Complainant was not the highest qualified candidate for the position. Out of the four candidates interviewed, S2 noted that Complainant had the lowest score. The record supports that Human Resources reviewed and approved the pass over request S2 submitted. Subsequently, the Agency withdrew Complainant’s name from the applicant pool. 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 these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s reprisal for prior protected EEO activity. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2020003521 5 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). 2020003521 6 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 October 25, 2021 Date