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

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2020003934 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jamie K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003934 Hearing No. 430-2017-00008X Agency No. 2004-0590-2016101119 DECISION On June 1, 2020, 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 30, 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 At the time of events giving rise to this complaint, Complainant worked as a Respiratory Care Supervisor, GS-11 at the Agency’s Hampton VA Medical Center in Hampton, Virginia. On March 9, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to unlawful retaliation, including a hostile work environment, for engaging in prior protected EEO activity when: 1. On November 6, 2015, Complainant received a proposed 5-day suspension, which was sustained on February 12, 2016 and held in abeyance. 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. 2020003934 2 2. On November 11, 2015, Complainant received a rating of “Less than Satisfactory” on his performance evaluation which was subsequently upgraded to “Fully Successful.” 3. On February 26, 2016, Complainant was forced to retire from the Agency. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant received the proposed 5-day suspension for violating the Agency’s 2014 Agreement with the Union. The notice of the proposed 5-day suspension indicates that charge was failure to follow a written agreement and that, in violation of the Union Agreement, on October 29, 2015, Complainant recalled an employee from her official time and instructed her to return to Respiratory Therapy. Complainant attested that he was not aware of the agreement. In addition, Complainant stated that he was not at work on October 29, 2015, and he did not recall his subordinate employee as alleged. However, the investigative record includes an email that Complainant sent to his subordinate employee on Thursday, October 29, 2015, recalling her from her scheduled union work. Complainant emailed his subordinate employee at 9:11 am and stated the following: You are the only certified intubator on dayshift today 10/29/2015. I do not have the authority to change that. Accordingly, please return to duty upon receipt of this message. Please explain why you are in the Union Office knowing from morning report you were the only certified intubator? The Union President replied to Complainant’s email at 9:45 am the same day, indicating that Complainant had been aware of his subordinate employee’s union schedule for over a year, and Complainant had discussed the schedule with her and the Chief Medical Officer (S1). The Union President stated that Complainant failed to adhere to schedule repeatedly since their discussion and she believed Complainant had “a good bit of union animus” and was “determined to refuse the orders of [his] supervisor.” The Union President’s email is consistent with the record, including a letter that she wrote a year earlier on October 21, 2014, where she specified that the Agency and Union agreed that the subordinate employee’s union schedule was every other Thursday between the hours of 7:30 am and 11:30 am. In the letter, the Union President indicates that Complainant had constantly interfered with his subordinate’s union work schedule. The Union President’s email is also consistent with S1’s June 5, 2014 email. In the email, S1 described that Complainant had “been instructed multiple times in writing . . . to plan for [his subordinates] official time and staff accordingly.” S1 warned Complainant that if he continued “to be obstructive to [his subordinate’s] official time, it will be considered to be failure to follow direct orders from a supervisor since” he had “been given multiple instructions on this topic.” 2020003934 3 The proposed 5-day suspension from November 10, 2015, stated that Complainant’s past record was considered in determining proper disciplinary action, including Complainant’s prior reprimand from November 20, 2012 for “Deliberate Refusal to Carry Out a Direct Order.” The prior reprimand specified that it would remain in Complainant’s personnel file for three years and could be used to determine an appropriate penalty if further infractions occurred during the three-year period. The Acting Chief of Staff (S3) indicated that management’s decision to issue the proposed 5-day suspension was consistent with progressive disciplinary action. Complainant’s October 29, 2015 infraction occurred within 3 years of his prior reprimand; therefore, management decided the proposed 5-day suspension was an appropriate disciplinary action. On November 11, 2015, Complainant received a rating of “Less than Satisfactory” on his performance evaluation. Complainant indicated the less than satisfactory rating was based on unproven issues of conduct not his actual performance. Complainant pointed out that it is standard for management to put an employee on a performance improvement plan (PIP) when they were not performing satisfactory and he had never been placed on a PIP. The Chief of Assistant Service (S2) attested that he gave Complainant the “Less than Satisfactory” performance rating. S2 stated that he had recently become Complainant’s first-level supervisor and admitted that he miscalculated the percentage elements in Complainant’s appraisal. S2 stated that Complainant’s recent discipline was considered in the appraisal, but S2 failed to provide feedback during Complainant’s mid-term progress review. S2 stated S3 subsequently changed Complainant’s rating to “Fully Successful” due to his miscalculation in percentage elements and failure to provide Complainant with feedback during his mid-term progress review. S3 testified that she had a face-to-face meeting with Complainant to discuss his performance rating. S3 stated that Complainant disagreed with his performance rating and requested the Agency reconsider his rating. S3 met with the S2 to discuss the rating. During the meeting S2 gave S3 a file that contained complaints from Complainant’s staff. According to S3, Complainant’s staff submitted complaints describing him unprofessional and an ineffective leader. The staff members expressed that Complainant harassed them, embarrassed them publicly, and showed favoritism toward some individuals. In addition, the file contained an email stating Complainant was counseled multiple times about denying official time to a union steward. S3 noted that Complaint was not provided with written feedback about the complaints, and he was not placed on a PIP or given time to improve. Therefore, S3 decided to upgrade Complainant’s rating to “Fully Successful.” On February 2, 2016, Complainant contacted Human Resources Retirement Specialist (HRRS) and informed her that he would be retiring from the Agency. HRRS testified that Complainant did not give her the reason for his retirement. HRRS testified that Complainant requested a retirement package and initially selected a retirement date of February 29, 2016. 2020003934 4 HRRS stated that Complainant submitted his retirement papers in February 2016 with an amended retirement date of March 31, 2016. S3 testified that she learned that Complainant planned to retire in February 2016. S3 stated that she had a meeting with Complainant where he informed her that he needed to take sick leave for a medical condition, which would change his retirement date. During the meeting, S3 told Complainant that she intended to uphold the 5-day suspension but offered to hold the suspension in abeyance if Complainant retired as planned. S3 stated that if Complainant decided to rescind his retirement that he would be required to serve the 5-day suspension. S3 testified that Complainant requested several days to consider the option and that he would get back to her. Complainant testified that he was compelled to retire due to intolerable working conditions. However, S3 testified that Complainant exercised his free will to make a decision and was not coerced in any manner. On February 16, 2016, Complainant emailed S2 and his staff to inform them that he planned to retire. Complainant constructively retired from the Agency on February 26, 2016. At the conclusion of 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 18, 2017 motion for a decision without a hearing and issued a decision by summary judgment on April 3, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision by summary judgment without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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). 2020003934 5 A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 factfinder could not find in his favor. Disparate Treatment Claim A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 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). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. To establish a prima facie claim of disparate treatment in reprisal for prior EEO activity a complainant must show that (1) he engaged in protected activity under the employment discrimination statutes, (2) the Agency was aware of the protected activity, (3) he was subject to adverse treatment by the Agency, and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000); Complainant v. General Services Administration, EEOC Appeal No. 0120131204 (Aug. 1, 2014). After careful review of the record, we find that Complainant has not established a prima facie case of disparate treatment based on reprisal. In reaching this conclusion, we note that Complainant engaged in prior protected activity in 2013 and 2014. The record reveals that the first date of alleged discrimination in the instant case is November 2015, which is at least 11 months after his prior protected activity. The length of time between the two events was far too attenuated to infer a retaliatory motive. Given the length of time between the two events a nexus cannot be assumed, and Complainant has not presented sufficient evidence to otherwise establish a nexus. See Barrett L. Brick, Complainant, EEOC No. 01991870 (August 16, 2001). 2020003934 6 Even assuming arguendo that Complainant established a prima facie case, his claim still fails. We find the responsible Agency officials have articulated a legitimate, nondiscriminatory reason for the disputed actions. In sum, the responsible managers stated that the proposed suspension and less than satisfactory performance appraisal were issued because Complainant’s staff submitted complaints describing him unprofessional and an ineffective leader. Complainant’s staff indicated that Complainant harassed them, embarrassed them publicly, and showed favoritism toward some individuals. In addition, Complainant received multiple written instructions not to interfere with his subordinate employee’s union schedule. Moreover, Complainant has not offered sufficient evidence to establish that the Agency’s reasons were pretext for discrimination. Other than his own statements, Complainant has not provided evidence to establish that his proposed suspension or performance rating was pretext for discrimination. Harassment Claim It is well-settled that harassment based on retaliation for prior protected activity is actionable. In order to establish a claim of harassment under this basis a complaint must show that: (1) he belongs to a statutorily protected class or engaged in prior EEO activity, (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class or prior EEO activity, (3) the harassment complained of was based on his prior protected activity, (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or created an intimidating, hostile, or offensive work environment, and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, there is no evidence that any of the claimed harassing actions undertaken by management were based on Complainant’s prior protected activity. As discussed above, the Agency provided legitimate nondiscriminatory reasons which Complainant failed to rebut. Constructive Discharge Claim By arguing his resignation was coerced by the Agency's actions, Complainant is raising a claim that he was constructively discharged. The Commission has established three elements that a complainant must prove to substantiate a claim of constructive discharge: 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 intolerable working conditions, and 3) the complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990), See also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990). In light of our finding that Complainant was not subjected to disparate treatment or harassment as discussed in some detail above, we conclude that Complainant has failed to prove that his resignation was a constructive discharge from the Agency. 2020003934 7 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. 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. 2020003934 8 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 December 2, 2021 Date