[Redacted], Kendrick B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 24, 2021Appeal No. 2020004867 (E.E.O.C. Feb. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendrick B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004867 Hearing No. 410-2018-00093X Agency No. 200I-0508-2017101364 DECISION On August 27, 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 July 29, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 06, at the Agency’s Atlanta VA Medical Center (VAMC) in Decatur, Georgia. On February 26, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and/or discrimination on the bases of race (Black) and sex (male) when: 1. On June 10, 2015, he was reassigned to the Atlanta VAMC, pending a fact finding; 2. On June 17, 2015, his police credentials were suspended; 3. On June 17, 2015, he was reassigned to the Arcadia Clinic; 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. 2020004867 2 4. On September 2, 2015, he was presented with a proposed reprimand; 5. On September 14, 2015, he was reassigned to the Newnan Clinic; 6. On January 27, 2016, he was reassigned to the Carrollton Clinic; 7. On or about March 29, 2016, he was “passed over” for Vacancy Announcement No. JV-MSB-151320070-BU; 8. On April 26, 2016, a co-worker made disparaging remarks about him, including “watch out for the guy right there, he is bad news;” 9. On August 3, 2016, he reported a hostile work environment to Human Resources (HR), who directed the Police Service to investigate, with no action taken; 10. On October 5, 2016, he was notified of his non-selection for the Supervisory Police Chief position, advertised under Vacancy Announcement No. JV-16-NRH- 1793025; and 11. On December 28, 2016, a Certified Nursing Assistant (CNA) defamed him when she filed a false harassment complaint against him. Complainant also raised allegations regarding his Freedom of Information Act (FOIA) requests, the filing of a complaint with the Office of Special Counsel (OSC), and a grievance filed on February 7, 2016 concerning a performance evaluation. The Agency dismissed the independently actionable claims raised in claims (1) through (6), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It dismissed the allegations relating to processing of Complainant’s FOIA requests and the OSC complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. It dismissed the allegations relating to the performance evaluation pursuant to 29 C.F.R. § 1614.107(a)(4), as having been raised in a negotiated grievance procedure that permits allegations of discrimination. The Agency accepted the remaining claims and conducted an investigation, which produced the following pertinent facts: Complainant attested that, on June 10, 2015, he was reassigned to the Atlanta VAMC, pending a fact finding, because a Housekeeping Aid (HA) reported that he overheard Complainant threatening a female employee. Complainant alleged that this incident was based on sex and race because the female employees involved were not impacted by the investigation or asked if they had a sexual relationship with him. Complainant’s second-line supervisor (Captain) attested that the reassignment occurred because, on June 9, 2015, he received a report from a Sergeant indicating that, while on duty, Complainant was overheard stating that he wanted to choke a named female CNA (CNA1). Complainant attested that, on June 17, 2015, his police credentials were taken because his ex- girlfriend complained about personal issues that occurred at home. Captain attested that Complainant’s credentials were removed, pending the outcome of the investigation, due to the seriousness of the complaint. 2020004867 3 Complainant alleged that, on June 17, 2015, he was reassigned to the Arcadia Clinic, but he failed to provide testimony in support of this allegation. Captain attested that Complainant had threatened to do bodily harm to another Agency employee and was removed from the area, pending the investigation. On September 2, 2015, Complainant was issued a proposed reprimand. Complainant attested that it was unfair and there were no findings. Captain attested that Complainant was found to have committed the offense and management took disciplinary action against him. The Deputy Chief, Police Service, attested that Complainant was charged with threat of bodily injury directed towards another Agency employee. A Fact-Finding report indicates that, around June 9, 2015, Complainant, while on duty, threatened to choke CNA1, in violation of the Agency’s code of conduct. The record includes corroborating witness statements and interview transcripts, including that of another CNA (CNA2) also indicating that she had a prior personal relationship with Complainant and was fearful of him. A Proposed Reprimand, dated September 2, 2015, from the Chief, Police Service (Chief), to Complainant, indicates that the Chief was proposing to reprimand Complainant because, on or about June 9, 2015, CNA1 reported to HA that Complainant allegedly threatened to choke her and that she was fearful of Complainant. It indicates that a Fact-Finding Investigation was initiated on June 12, 2015 and the results revealed that the allegations of the threats were founded and that more than one Agency employee had become fearful of Complainant. The Agency’s Table of Penalties indicates that the range of discipline for a first offense of threatening another is reprimand to removal. Complainant attested that, on September 14, 2015, he was reassigned to the Newman Clinic and he alleged that this involved race and sex because the female employees involved never had any problems and/or transferred and he was constantly transferred and heard “color remarks” daily. Captain attested that he did not recall this event. Complainant alleged that he was reassigned to the Carrollton Clinic on January 27, 2016, but he failed to provide testimony in support of his allegation. A Major, Police Service (Major) attested that Complainant was moved from the Carrollton Clinic because a female staff member that Complainant was dating reported that Complainant threatened to choke her, and, during the investigation, it was discovered that Complainant had sexual relationships with multiple women in that facility. Complainant attested that, on or about March 29, 2016, he was passed over for a promotion, even though HR had referred him as one of the best qualified. Complainant attested that the selectees had less police and supervisory experience and he had been passed over twice since the fact finding. He alleged that he discussed the matter with Major. 2020004867 4 Complainant also attested that, on October 5, 2016, he was notified of his non-selection for a Supervisory Police position. He attested that he discussed the matter with the Deputy Chief, Police Service, who referred him to Major. Major attested that there were more than 200 candidates for six supervisor positions. Complainant applied but was not referred for the supervisor position because he did not score among the top candidates, due to the lack of supervisory experience on his resume. Major explained that a scoring matrix was used, based heavily on the position description and job performance factors. He also attested that Complainant was not among the top 15 resumes that received an interview. Complainant alleged that, on April 26, 2016, HA made disparaging remarks about Complainant, such as, “watch out for that guy right there, he is bad news,” but failed to provide testimony in support of his allegation. Major attested that HA had extensive knowledge of Complainant’s off- duty activities and took it upon himself to warn a new female employee about Complainant’s reputation with women. Major attested that Complainant brought this situation to him and it was addressed in a meeting with HA and management. HA attested that he observed Complainant engaging in inappropriate behavior around the facility, particularly as it relates to women. Complainant alleged that, on August 3, 2016, he reported a hostile work environment to HR, who directed the Police Service to investigate, but there was no action taken; he declined to provide testimony as to this allegation. Major attested that Complainant was aware that female employees were gossiping and “comparing notes” about Complainant, as a result of Complainant’s activities with various women who work at the Agency. Major attested that Complainant sent an email to Employee Relations/Labor Relations, which was not the correct channel to file an EEO complaint and it was returned to the service line for action. He attested that he looked at the factors, addressed Complainant’s concerns, and offered Complainant to the opportunity to transfer duty stations. A Memorandum dated August 3, 2016, from Complainant to an Employee Relations/Labor Relations Specialist generally describes Complainant’s problems with women at the Agency, including gossiping about him, and rumors about his behavior, since the fact finding. Complainant alleged that, on December 28, 2016, CNA2 defamed him when she filed a false harassment complaint against him. CNA2 attested that she filed a complaint against Complainant was “Defamation of Character.” 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 requested a hearing but the AJ denied the hearing request on the grounds that he failed to comply with the August 12, 2019 Order on Initial Conference, Deadlines, and Record Completion. The AJ remanded the complaint to the Agency, and 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. 2020004867 5 The instant appeal followed. On appeal, Complainant argues that, since in or around 2013, the Agency has engaged in an ongoing practice of discrimination, sexual harassment, and hostile workplace harassment towards Complainant on the bases of sex, race, color, disability, and retaliation for prior EEO activity. In so doing, he cites numerous alleged instances, many of which were not included in the formal complaint or in the EEO Counselor’s report. Complainant also argues that he deserved a hearing and alleges that the AJ was “extremely biased.” In response, the Agency argues that its final decision accurately details the relevant facts and applies the appropriate legal standards. It also argues that Complainant failed to meet the burden of proof with respect to his complaint and, on appeal, presents no evidence to show he satisfied his burden of proof. The Agency asks that we affirm its final decision. 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”). Dismissed Claims An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Here, we agree with the Agency that Complainant’s allegations regarding his FOIA request and OSC complaint fail to state a claim. The Commission has held that collateral attacks to other administrative proceedings, such as these, fail to state a claim. See Wills v. Department of Defense, EEOC Appeal No. 05970596 (July 30, 1998); see Gaines v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997) (affirming summary decisions dismissing complaints involving allegations relating to FOIA requests (EEOC Appeal Nos. 01960796 (October 23, 1996) and 01963493 (October 23, 1996)); and see Complainant v. Department of Justice, EEOC Appeal 2020004867 6 No. 0120123086 (August 22, 2014) (finding that a challenge relating to the OSC process failed to state a claim). The Agency dismissed Complainant’s allegations relating to a previously filed grievance. In so doing, the Agency noted that the applicable negotiated grievance procedure, AFGE, Article 43, subsection 3, subparagraph A states that allegations of discrimination may be raised under the statutory procedure or the negotiated grievance procedure, but not both. EEOC Regulation 29 C.F.R. § 1614.105(a)(4) provides that, an agency shall dismiss a complaint where a complainant has raised a matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the Merit Systems Protection Board and § 1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO process. Therefore, we agree with the Agency that dismissal of the claim on these grounds was proper. The Agency also dismissed Complainant’s allegations in claims (1) through (6), as individually actionable claims, for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. Here, the record indicates that Complainant initially contacted an EEO Counselor on January 11, 2017. The incidents in claims (1) through (6) occurred between June 10, 2015 and January 27, 2016, which is more than 45 days prior to initial EEO Counselor contact. Therefore, dismissal of these individual claims on these grounds was proper. However, these claims are still relevant to the harassment claim as discussed below. Harassment Claim 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). 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 sex and/or race. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2020004867 7 Here, Complainant’s harassment claims reflect disagreements with managerial decisions, such as those relating to reassignments, investigations of alleged employee misconduct, employee discipline, and selection for promotions; and unwelcome statements by co-workers, such as gossiping about his relationships with female co-workers, saying “watch out for that guy, he is bad news,” or writing a statement against Complainant for “defamation of character.” With respect to his disagreements with managerial decisions, without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, with respect to unwelcome statements, we find these also are insufficiently severe or pervasive to have altered the conditions of Complainant's employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Furthermore, there is insufficient evidence to support the allegation that Complainant's race or sex played any role in the incidents at issue. Disparate Treatment Claims Complainant’s allegations regarding non-selection for promotional opportunities give rise to claims of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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 at n.13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, as discussed above. The Agency explained that Complainant was not selected for promotion to a supervisory position because his resume score was not among the top 15 of the 200 candidates for six positions. 2020004867 8 In the absence of evidence of a discriminatory motivation, the Agency generally has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. In addition, the Agency has the discretion to choose among applicants who have different but equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Here, Complainant has not produced sufficient evidence to dispute the selectees’ qualifications or establish that he has superior qualifications to them. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Therefore, we find that, although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non- discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. 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. 2020004867 9 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. 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. 2020004867 10 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 February 24, 2021 Date Copy with citationCopy as parenthetical citation