[Redacted], Harland B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 27, 2021Appeal No. 2020003850 (E.E.O.C. Oct. 27, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harland B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003850 Hearing No. 570-2018-00541X Agency No. 20DR-0010-2017103093 DECISION On June 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 29, 2020 final order 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 relevant period, Complainant worked for the Agency in Washington, D.C. as a Health Systems Specialist, GS-13, in the Assistant Director’s office. Complainant previously served as the Chief of Prosthetics and Sensory Aids Service. On July 25, 2017, Complainant filed a formal EEO complaint alleging that he was subjected to unlawful retaliation for his prior EEO activity when: 1. On or about April 7, 2017, the Director, Clinic Practice Management, issued Complainant a letter detailing him to the Health Systems Specialist position. 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. 2020003850 2 2. In April 2017 through the present, the Veterans Integrated Service (VISN) 5 Director has yet to respond to Complainant’s concerns regarding his improper detail to the Health System Specialist position. 3. On or about May 18, 2017, Complainant learned that his mail/computer access to the DC VA Medical Center was removed. 4. On or about August 1, 2017, the Acting Assistant Director reassigned Complainant from the Health Systems Specialist position to an Executive Assistant position and has required Complainant to sit in an open space. 5. On or about August 5, 2017, the Acting Assistant Director instructed Complainant to only go to Prosthetics Service for work-related issues and to discontinue going there for social purposes. 6. Since Complainant’s reassignment in August 2017 to an Executive Assistant position, he is being trained and performing the duties of a staff assistant. Following the Agency’s investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency submitted a Motion for Summary Judgment. Complainant responded to the motion. Thereafter, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020003850 3 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, Complainant raised an initial inference of retaliation because his reassignment occurred within weeks of signing a settlement agreement in a previously filed EEO complaint. Moreover, it is undisputed that at least some management officials in his chain of command were aware of his prior activity. However, the record evidence fully supports the AJ’s determination that the responsible Agency officials articulated legitimate non-retaliatory reasons for the disputed actions. Reassignment from Chief of Prosthetics to Health Systems Specialist Position The evidence of record shows that in March 2017, the Agency’s Office of the Inspector General (OIG) deployed a Rapid Response Team to conduct an inspection of the Washington DC Veterans Affairs Medical Center, pursuant to a confidential complaint. Complainant was one of many individuals interviewed by the OIG during this inspection. In April 2017, the OIG issued an Interim Report describing the serious conditions found at the VA Medical Center. In its Interim Report, the OIG found serious deficiencies putting patients at risk throughout the VA Medical Center and found that the dysfunctions were prevalent and deeply intertwined “across the board.” However, one of the departments specifically noted in the Executive Summary portion of the OIG Report for its dysfunction was the Prosthetics Department, which is the department where Complainant was Chief at that time. Management witnesses stated that it was deemed an operational necessity to immediately extricate Complainant from the Prosthetics Department in an attempt to “right the ship” and address the immediate concerns of the Interim report. Complainant had been the Chief of Prosthetics for a number of years and during that time it was found that in excess of 10,000 consults went unresolved, jeopardizing the health and safety of medical center patients. The report further determined there was a “high” risk of harm to veterans who had to wait more than 45 working days for the prosthetic appliance. 2020003850 4 Witnesses universally confirmed that it was Complainant’s management failures as Chief of Prosthetics that triggered the decision to remove him from the position and detail him to the Health Systems Specialist position. In addition, as a result of the removal of Complainant from Prosthetics, Complainant’s level of access to the network was downgraded as his current position did not warrant any higher level of network accessibility. He was also restricted from making non-work-related visits to Prosthetics service areas. It is undisputed that at least one of the management officials involved in the reassignment decision was aware of Complainant’s prior EEO complaint activity. However, the evidence is overwhelming that rather than retaliatory animus, it was the OIG report concerning the magnitude of the failures in the Prosthetic department that led management to lose confidence in Complainant’s abilities as Chief and reassign Complainant to the Health Systems Specialist position. Reassignment from Health Systems Specialist Position to Executive Assistant Position As an initial matter, the Acting Assistant Director denies any knowledge of Complainant’s prior EEO activity. However, even assuming he did have knowledge of it, the evidence shows that at the time Complainant was reassigned to the Executive Assistant position, the executive offices were undergoing a realignment of positions and there existed a need for an Executive Assistant to support the Acting Deputy/Associate/Assistant Directors. Complainant alleges that having him perform the duties of an Executive Assistant was demeaning, humiliating, and embarrassing, but did not establish that the duties he performed as an Executive Assistant were inconsistent for staff at the GS 13 level. The Acting Assistant Director said Complainant was detailed to the Executive Assistant role because there was a need and because Complainant was capable of performing the tasks. Complainant did not suffer a reduction in pay or grade when he was reassigned to be an Executive Assistant. With regard to his assigned work area, as explained to Complainant at the time, there was no other unoccupied workspace in the front office for Complainant to sit. Complainant did not produce evidence to the contrary. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his prior protected activity played any role whatsoever in these matters. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no unlawful retaliation as alleged was established. 2020003850 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). 2020003850 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 27, 2021 Date Copy with citationCopy as parenthetical citation