[Redacted], Jermaine I., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2019003860 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine I.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003860 Agency No. 200J-0676-2018104948 DECISION On June 7, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated May 30, 2019, concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Clinical Pharmacy Specialist (Pharmacist) in the Anticoagulation Clinic at the Tomah VA Medical Center located in Tomah, Wisconsin. On September 21, 2018, Complainant filed a formal EEO complaint based on national origin (Vietnamese), disability, and reprisal for prior protected EEO activity. The Agency framed the accepted2 claim as an alleged hostile work environment as evidenced by the following events: 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. 2 In a letter dated November 28, 2018, the Agency dismissed approximately eighteen events, that occurred between February and November 2017, also raised in support of the hostile work environment claim. The Agency reasoned that these incidents were raised in an earlier informal 2019003860 2 1. On or about March 8, 2018, and continuing, Chief of Pharmacy threatened Complainant with a charge of Absent Without Official Leave (AWOL), and did not update Complainant on his Worker’s Compensation claim; in January of 2018, and continuing, Associate Chief of Pharmacy/Supervisor, has disrespected Complainant, permits pharmacy technicians to disrespect him, provides inconsistent/unprofessional directions, prohibits him from raising concerns, has not conducted a spreadsheet/review of his workload, but increased it, forwards his email to staff, ignores his concerns regarding filling prescriptions, resolves issues unfairly, and asks him to “…do unnecessary or violable things”; on July 17-18, and September 5-6, 2018, and continuing, Acting Chief of Pharmacy, inconsistently resolves Complainant’s workload issues, and violated his privacy by forwarding his emails to staff; on September 7, 2018, Director addressed Complainant’s concerns based on one side of the story; and since September 10, 2018, technicians have not followed Complainant’s directions. 2. On October 22, 2018, Complainant received a “Fully Successful” performance rating that included unfair comments by [Chief of Pharmacy]. After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. Complainant filed the instant appeal. Regarding claim (1), Complainant argues that the Agency’s decision did not consider all the incidents investigated, such as the following matters: technicians disrespecting his directions, the supervisor disrespecting Complainant’s professional discretion, and the supervisor’s failure to review his workload. Regarding claim (2), Complainant clarifies that he “did not have any problem with being rated ‘Fully Successful”, but [rather with the] unfair comments . . . .” 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 complaint and Complainant should have raised them as part of Agency case No. 200J-0676- 2017103493. Since Complainant does not challenge the dismissal, we will not consider this matter here. 2019003860 3 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”). Disparate Treatment 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, he 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. See McDonnell Douglas, 411 U.S. at 802: Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). To establish a prima facie case of discrimination, Complainant must demonstrate that: (1) he is a member of a protected class; (2) he was subjected to adverse treatment; and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sep. 26, 2002). 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, 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). Regarding claim (2), the Agency reasoned that the “Fully Successful” rating was not discriminatory because the supervisor who issued the rating was new to the facility and had not met Complainant since he was a full-time teleworking employee. Therefore, the supervisor was unaware of Complainant’s disability or national origin. Further, she was not present for Complainant’s earlier EEO activity and attested she was not aware of it. The Agency concluded that Complainant failed to establish a prima facie case. As noted above, on appeal Complainant explains that he is not challenging the rating itself, but only the comments included with the evaluation. He also expressed this view in his affidavit, stating, “I am fine with that rating, but should not include those unfair comments.” According to Complainant the comments included: (1) “One specialty care provider has expressed concern regarding provider’s clinical decisions in the last month” and (2) “Two patients in the last month have requested an alternative provider due to disagreements with employees or patients’ perceived employee communication to be disrespectful.” Complainant argues that he made decisions based on VA guidelines and is not concerned when a patient disagrees with his clinical plan. Complainant has not shown how the alleged comments resulted in a personal loss or harm to a term, condition, or privilege of his employment, and therefore has not met the second element (adverse treatment) of establishing a prima facie case. Even assuming that the alleged comments constituted an adverse action, Complainant has failed to show any nexus between those comments and his protected bases. 2019003860 4 When asked why he believed the comments were discriminatory, Complainant simply stated: “I believe they have been trying to stress me out with those unfair comments on the fully successful rating.” The Agency’s finding of no discrimination, regarding claim (2) was proper. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his national origin, disability, or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In its decision, the Agency stated that Chief denied threatening to charge Complainant as AWOL and well as failing to communicate with Complainant regarding his worker’s compensation claim. Further, the Agency found no evidence that Complainant was charged as AWOL or threatened. The Agency stated that as for Complainant’s workload, Complainant’s Supervisor acknowledged that his workload was increased, but says this action was taken because Complainant was completing significantly less work than his co-workers. We agree with the Agency’s decision, that Complainant has failed to meet his burden in establishing he was subjected to a hostile work environment. Even when considering all the incidents that were investigated, there is no evidence that they were based on Complainant’s national origin, disability, or prior EEO activity. CONCLUSION Accordingly, the Agency’s decision finding no discrimination was proper and is AFFIRMED. 2019003860 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). 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. 2019003860 6 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 January 22, 2021 Date