[Redacted], Hugh P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2019005022 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hugh P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2019005022 Hearing No. 460-2014-00069X Agency No. 2003-0580-2012103432 DECISION On June 21, 2019, 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 May 23, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Chaplain (Catholic) in Chaplain Services at the DeBakey VA Medical Center (VAMC) in Houston, Texas. Effective March 9, 2012, management detailed Complainant to work in the Addiction Therapy Office, performing miscellaneous duties as needed. On August 21, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Nigerian), color (Black), and reprisal for prior protected EEO activity (mediation with management) when: (1) between August 2011 and June 2012, the Agency subjected him to hostile work environment 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. 2019005022 2 harassment, and (2) effective June 5, 2012, the Agency removed him from employment.2 The Agency accepted Complainant’s claim of harassment, to include the removal action as a harassing incident, for EEO investigation. During the EEO investigation, Complainant stated that the Chief of Chaplain Services (S1) instructed him to attend an 8:30 a.m. daily, weekday “huddle” meeting, which required him to change his tour of duty to arrive an hour earlier. Further, Complainant alleged that S1 did not introduce him to others at the huddle; S1 told Complainant and other chaplains to email him when they reported to and departed from work, and questioned Complainant when he did not do so; S1 told staff that Ecclesiastical Endorsements were supposed to be in their official personnel files (OPF), but they were not; after a morning huddle, S1 emailed Complainant “see me;” S1 was upset when Complainant expressed concerns during a huddle and Complainant made reference to slavery; S1 told Complainant that he did not receive his Ecclesiastical Endorsements and he needed to seek assistance from someone if he did not know how to handle, but Complainant found the Endorsements in his OPF; S1 told Complainant that he would be a back- up for signing time cards, but a November 2, 2011 Delegation of Authority memorandum omitted Complainant’s name solely; S1 had Complainant enter “in- house” mediation with him; S1 and the Vicar for the VA (S2) threatened to suspend Complainant’s Ecclesiastical facilities; S2, who was also a Bishop of the Archdiocese for the Military Services - USA, wrote a decree removing Complainant’s Ecclesiastical Endorsements and Facilities thereby prompting his removal from his Chaplain position; an Administrative Board of Investigation interviewed Complainant while he was on sick leave and asked him to consider reassignment to another position to prevent lengthy litigation; a Representative of the National Chaplain Office stated that the DeBakey VAMC will never get another Catholic Chaplain until Complainant is removed from his Chaplain position; management detailed Complainant to the Substance Dependence Treatment Program as an Addiction Therapist; the EEO Program Manager (EPM) told Complainant, “The church did this to you, [the Agency] is not involved in this;” EPM tried to reach Complainant about a job while he was on sick leave; and a Nurse Manager issued Complainant a Notice of Removal effective June 5, 2012. Complainant’s Supervisor, S1, stated that he left DeBakey VAMC in April 2012,3 and that Complainant was removed from employment after he left the facility. As to Complainant’s harassment claim, S1 stated that a “huddle” is an informal, brief meeting first thing in the 2 Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding his June 2012 removal. The MSPB docketed the matter as DA-0432-14-0005-I-1 and, on March 27, 2014, an MSPB Administrative Judge dismissed the appeal without prejudice. Subsequently, Complainant reinstated his MSPB appeal and, on August 13, 2015, the MSPB issued an Initial Decision sustaining Complainant’s removal, for failure to maintain a condition of employment. Complainant filed a petition for review with the MSPB, which it denied on February 5, 2016. EEOC does not have record of an appeal of the MSPB decision. 3 S1 noted that he has his own EEO complaint against the DeBakey VAMC. He stated, “I found them to be extremely insensitive to EEO regulations and requirements.” 2019005022 3 morning for Chaplain Staff to exchange information. He stated that use of huddle meetings comes from his past training in the hospital industry. S1 stated that all chaplains in the service attended so it was important for Complainant to attend too, and Complainant requested an earlier tour of duty so that he could arrive on-time to the meetings. S1 stated that he did not introduce anyone at the huddle because they were all coworkers who had worked together for some time. In addition, S1 stated that each participant is asked for input. S1 stated that it was his practice for staff who worked “off tours” to notify of start and end of tour, but once he learned that the practice violated the Master collective bargaining agreement, he stopped the requirement. S1 defined an “Ecclesiastical Endorsement” as “a document provided by the individual Chaplain’s denomination or faith group, which really serves as their license to practice in [the Agency].” S1 stated that the endorsement is solely in the control of the granting organization and is not controlled or influenced by the Agency. S1 stated that an Ecclesiastical Endorsement is required to work as a Chaplain at the VA and the Roman Catholic Church revoked Complainant’s Endorsement. S1 stated that the Endorsement should have been in each employee’s qualifications folder, and he learned that Complainant and another Chaplain were working on expired endorsements. S1 stated that Complainant was resistant to his request for the Ecclesiastical Endorsement and so, thinking Complainant might not know how to obtain it, S1 suggested Complainant contact another Roman Catholic Chaplain for help. S1 stated that Complainant compared his management style to that of a slave-master and he found that comment “objectionable and harassing.” S1 stated that Complainant requested mediation due to concerns he had about providing an Ecclesiastical Endorsement and about reporting his tour of duty when he worked off tours. S1 stated that the matters were resolved to the satisfaction of both parties with a mediation agreement. The EEO Representative, EPM, stated that he contacted Complainant to try to resolve his complaint at the lowest possible level, but he did not encourage Complainant to agree to reassignment to prevent lengthy litigation. EPM stated that the settlement considerations were for Complainant to maintain employment and possibly regain his Ecclesiastical Endorsements later to return to a Chaplain position. EPM stated that he did not know Complainant was on sick leave when he contacted him. EPM stated that he informed Complainant because the Catholic Church removed his endorsement, the Agency could no longer employ him as a Catholic Chaplain. (EPM equated it to a doctor losing a license to practice medicine.) The Deputy Medical Center Director (DMCD) stated that the Agency could not continue to employ a Chaplain without endorsements even if the Chaplain was in the Church’s endorsement appeal process. DMCD stated that management attempted to find a suitable position to reassign Complainant but was unable to find one. The Vicar for the VA, S2, stated that he removed Complainant’s Ecclesiastical Endorsements and Facilities because he broke several church laws. At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and, during the hearing stage, the assigned AJ remanded the matter to the Agency for supplemental investigation. 2019005022 4 Following the supplemental investigation, Complainant reinstated his request for a hearing, but subsequently withdrew the request. 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 discriminatory harassment as alleged. The instant appeal from Complainant followed. 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”). Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, color, national origin, or reprisal. Essentially, the record shows that Complainant and his Supervisor, S1, disagreed on several workplace practices and that S1 stopped a practice once he realized it violated the collective bargaining unit in place. Further, the record shows that as a Catholic Chaplain, Complainant was required to have Ecclesiastical Endorsements and Facilities in place but the Vicar for VA revoked Complainant’s Endorsements and Facilities for violating several church rules. The Agency tried to assist Complainant in finding a reassignment position at DeBakey VAMC, with the intention of him returning to a Chaplain position if the Church reinstated his Ecclesiastical Endorsements and Facilities. 2019005022 5 Ultimately, in June 2012, the Agency removed Complainant from employment for failure to meet a condition of employment. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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 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). 2019005022 6 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. 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 14, 2021 Date