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

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2020005312 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harrison S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005312 Agency No. 200I-0546-2017102557 DECISION Complainant timely 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 August 26, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race, sex, and reprisal; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes, as alleged. 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. 2020005312 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facility Recall Coordinator, GS-6, within the Agency’s Logistics Service at the Medical Center in Miami, Florida. Report of Investigation (ROI) at 32. According to Complainant, on March 3, 2017, he was instructed to be the backup for the Implant Coordinator, a GS-9 position. ROI, at 88-90. As a result, Complainant was informed that he would assist the Implant Coordinator by picking up the implants from the warehouse, signing for them, and delivering them to the Implant Coordinator's desk. Id. at 134. Complainant, however, believed that there were other employees in the unit, who held a GS-9 grade or higher, that should have been made the backup to the Implant Coordinator instead. Id. at 88-90. Complainant averred that he was never trained as the Implant Coordinator nor ever performed the duties of the position before. Id. Complainant believed his race was a factor in the Agency’s actions because "They promoted everyone that was [B]lack." Id. at 89. He also believed his sexual orientation was a factor, "Because the department secretary is gay, but in [the] closet." Id. As for his EEO activity, Complainant asserted it was a factor "[b]ecause it makes my chief look bad." Id. According to the Chief, Complainant was only asked to provide support to the Implant Coordinator, not perform a full-scale backup role. Id. at 100. The Chief further explained that while there were other GS-9 employees, none were available due staffing shortages. Id. The Assistant Chief also explained that Complainant was not given Implant Coordinator training because he refused to take the training, despite the fact that the role of backup to the Implant Coordinator was part of his Position Description (PD). Id. at 135. The following week, on March 10, 2017, Complainant was taken into custody by the VA Police and denied access to critical departments. Id. at 90-91. Specifically, Complainant attested that he was held in VA Police custody for 45 minutes and lost access to every part of the facility. Id. Complaint described feeling humiliated when he was paraded in front of employees and veterans and had to ask people to allow him into departments. Id. Regarding Complainant’s detention, the Director explained that all staff members were previously informed of the Secretary’s visit to the facility. Id. at 148-149. Security for the visit involved the VA police and local hospital police, who established a secure perimeter for controlled access to the Secretary. Id. According to the Director, Complainant made concerning statements on his Facebook page about the Secretary, which were shared with the security team. Id. On the day of the visit, Complainant entered the secured area dressed in a three-piece suit and provided, what VA Police considered, an unacceptable reason for his presence. Id. The Director attested that Complainant was then escorted off Agency property, where he continued to convey his concerns via Facebook from a location across the street from the Medical Center. Id. 2020005312 3 Thereafter, the Chief issued Complainant a Proposed 5-day Suspension, dated March 16, 2017, regarding a separate incident from approximately six months earlier. Id. at 225-226. Therein, the Chief charged Complainant with disrespectful, insulting, and racial language in the workplace. Specifically, the Chief noted that on September 20, 2016, a coworker reported that Complainant said, "Black men are lazy and don't want to work," among other similar comments. Id. Complainant was also charged with disrespectful conduct when he failed to lower his voice and refused to leave his Supervisor’s office. Id. The Chief noted that the VA Police were called because Complainant’s Supervisor felt intimidated by Complainant’s conduct. Id. The Proposed 5-day Suspension was then effectuated by the Agency on April 24, through April 28, 2017. Id. at 227. On April 14, 2017, the Chief issued Complainant a Proposed 10-day suspension, charging Complainant with the “Failure to follow supervisory instruction with Leadership and the Director.” Id. at 223-224. According to the Chief, on January 13, 2017, Complainant was provided with a letter reminding him that he must go through his chain-of-command when voicing his concerns about the workplace. Id. Complainant disregarded the letter, stated the Chief, when he emailed the Director, Assistant Director, and the Secretary of the Agency without going through his chain-of-command. Id. Complainant averred that on April 18, 2017, his PD was changed to include more duties and assignments. Id. at 94-95. In response, the Chief explained that he edited Complainant’s PD and sent it to the Classification Department for vetting. Id. at 109-110. The Chief attested that Complainant was the only Recall Coordinator in the unit and, as time progressed, the attention needed to close out recalls decreased. Moreover, noted the Chief, Complainant was only available half the day to assist the team. Id. Similarly, the Assistant Director stated that there were not enough duties to support Complainant working an eight-hour day and the assignment of additional duties addressed the needs of the Logistics Call Center and the Logistics mission. Id. at 180. On June 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male, sexual orientation2), and reprisal for prior protected EEO activity when: 1. On March 3, 2017, the Assistant Chief instructed him to be the backup for the Implant Coordinator, a GS-9 position. 2. On March 10, 2017, he was “humiliated” when he was taken into custody by VA Police, who also took away his access to critical departments. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020005312 4 3. On March 22, 2017, he was issued a proposed 5-day suspension.3 4. On April 18, 2017, he was issued a proposed 10-day suspension.4 5. On April 18, 2017, his Position Description (PD) was changed to “include more duties and assignments.” Following the 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for its actions regarding claims 1 and 5, which Complainant did not establish were pretextual based on his protected classes. Regarding claim 1, the Agency noted that other GS-9s could not assume the role of backup to the Implant Coordinator due to their workloads, and therefore Complainant was the only employee available to perform the role at the time. The Agency also noted that Complainant did not receive training for the backup responsibilities because he refused to take the training. The Agency reasoned that being the backup to the Implant Coordinator was part of Complainant’s PD when he was hired. Additionally, the Agency noted that when a lower-graded employee is assigned to backup a higher-graded position, as here, they are not performing all the duties of the higher-graded position but are just covering the basic functions. With respect to claim 5, the Agency noted that additional duties were added to Complainant’s PD because his workload as a Recall Coordinator had diminished, leaving him with very little work for half the day. More specifically, the Agency stated that the Recall Coordinator position is typically a collateral duty and most facilities did not have a dedicated Recall Coordinator’s position. In concluding that Complainant did not establish that management’s reasons were pretextual, the Agency noted that Complainant provided no documentation, witness testimony, or other evidence in support of his assertion that his race, sexual orientation, or EEO activity were the reasons for the Agency’s actions. Additionally, the Agency determined that Complainant did not show he was subjected to a hostile work environment based on his protected classes, as alleged.5 3 As previously noted, the 5-day suspension was later sustained and effective April 24, through April 28, 2017. 4 The record does not reflect whether the proposed 10-day suspension was subsequently implemented by the Agency. 5 While the Agency did not specifically address claims 2, 3, and 4, in the analysis portion of its decision, they were included in the factual background section. The matters were also part of the Report of Investigation. Consequently, we find there is sufficient evidence in the record for us to 2020005312 5 In so finding, the Agency noted that Complainant did not establish that the Agency subjected him to unwelcome personal slurs or other denigrating or insulting verbal or physical conduct that was sufficiently severe or pervasive to rise to the level of a hostile work environment. The Agency noted that although Complainant alleged he was called homophobic slurs based on his sexual orientation, he provided no evidence, beyond his own assertions, that he was subjected to any such comments. CONTENTIONS ON APPEAL On appeal, Complainant contends that he had no choice but to withdraw his request for a hearing because the AJ inappropriately handled the discovery process.6 Complainant also maintains that the Report of Investigation was incomplete and biased in the Agency’s favor. Complainant reiterates that he engaged in multiple EEO complaints and a variety of whistleblowing activities7 against the Agency. He asserts that the Agency subjected him to death threats, and a coworker directed homophobic comments and derogatory slurs towards him. 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”). determine whether discrimination and a hostile environment occurred regarding claims 2, 3, and 4. 6 Because Complainant chose to withdraw from the hearing process, we decline to review the rulings made by the AJ prior to the hearing. See Arvizu v. Dep't of the Navy, EEOC Request No. 0520100598 (Dec. 17, 2010) (“The regulations found at 29 C.F.R. Part 1614 do not provide for interlocutory appeals of AJ decisions .... [I]f Complainant wished to challenge the ruling of the AJ, he should have remained within the hearings process, received a decision from the AJ, and appealed to the Commission following the Agency's issuance of a final order.”) 7 The Commission does not have jurisdiction over reprisal for whistleblowing. 29 C.F.R. § 1614.103 2020005312 6 ANALYSIS AND FINDINGS Adequacy of Investigation We note that on appeal, Complainant expressed dissatisfaction regarding the investigation of his complaint. Complainant claims on appeal that the investigator made several errors and the investigation was inadequate. Upon review of the entire record, the Commission is not persuaded that the investigation was incomplete or improper. Complainant withdrew his request for a hearing, a process which would have afforded him the opportunity to cure alleged defects in the record. Therefore, despite Complainant’s contentions, the Commission determines that the investigation was properly conducted and the record was adequately developed. Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his protected classes, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Chief explained that while there were other GS-9 employees, none were available due staffing shortages and the resulting increase in workloads. ROI, at 100. The Assistant Chief also explained that, notwithstanding that the backup duties were part of his PD, Complainant refused to receive Implant Coordinator training. Id. at 135. As for claim, 2. the Director explained that Complainant entered the secured perimeter established for the Secretary’s visit, without a valid reason and following concerning statements he made about the Secretary on his Facebook page. Id. at 148-149. Regarding the proposed 5-day suspension, claim 3, the Chief attested that Complainant made inappropriate comments that had a “strong racial overtone.” Id. at 106. Complainant’s comments, averred the Chief, disrupted the work environment for several weeks and employees expressed fear in coming to work due to the work environment created by Complainant. Id. With respect to claim 4, despite receiving a “notification of expectation,” which outlined the proper channel of communication, Complainant violated the communication agreement on several occasions. Id. at 107. 2020005312 7 Regarding claim 5, the Chief attested that Complainant was the only Recall Coordinator in the unit. Over time, the work for closing out recalls decreased. Id. at 110. Similarly, the Assistant Director explained there were not enough duties to support Complainant working an eight-hour day and the additional assigned duties addressed the needs of the Logistics Call Center and the Logistics mission. Id. at 180. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that that Complainant has not shown that the Agency's reasons for its actions were pretextual or motivated by discriminatory or retaliatory animus. In so finding, like the Agency, we note Complainant provided no documentation, witness testimony, or other evidence in support of his assertion that his race, sexual orientation or EEO activity factored into the Agency’s actions towards him. Moreover, there is simply no evidence in this case supporting Complaint’s assertions that he was subjected to derogatory homophobic comments and slurs. We note that the record contains corroborating statements from multiple management officials, supporting the Agency’s legitimate reasons. Moreover, Complainant withdrew his request for a hearing before an EEOC AJ, and as a result, we do not have the benefit of an AJ's credibility determinations of the witnesses in this case. Based on a review of the record herein, we find that Complainant has not established that he was subjected to disparate treatment as alleged. Hostile Work Environment Harassment Finally, to the extent that Complainant contends that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, as noted above, there is simply no evidence in this case supporting Complaint’s assertions that he was subjected to derogatory homophobic comments and slurs. Therefore, we find that Complainant has not established that he was subjected to discrimination or a hostile work environment in this case. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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 2020005312 8 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). 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. 2020005312 9 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 12, 2021 Date