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

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2020003383 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merrill O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003383 Hearing No. 480-2018-00392X Agency No. 200P-0010-2017104465 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2, 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. At the time of events giving rise to this complaint, Complainant worked as a Physician at the Agency’s National Teleradiology Program in Honolulu, Hawaii. Complainant began a limited term appointment in July 2014, and his appointment was renewed on August 9, 2015, and September 8, 2016. Report of Investigation (ROI) at 77, 397-400. On July 5, 2017, Complainant was informed that his services would not be required following the expiration of his appointment on October 7, 2017. ROI at 383. On September 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and national origin (European) when: 1. from October 1, 2015, to September 30, 2017, 56.3% of the cases assigned to, and read by, Complainant were outside his sub-specialty; 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. 2020003383 2 2. from March 2017, through September 2017, Complainant’s first-line supervisor (S1) (Asian, Vietnamese) denied Complainant’s request for continuing medical education (CME); 3. on July 6, 2017, S1 gave Complainant a Notification of Expiration of Excepted (Temporary Hire) Appointment, effective October 7, 2017, in a semi-public setting; and 4. from November 2016, through September 30, 2017, Complainant was subjected to harassment to include, but not limited to: a. in November 2016, S1 verbally reprimanded Complainant in front of two colleagues for making too many recommendations in a complex case; b. on December 10, 2016, Complainant was excluded from a group meeting concerning staff leave requests; c. in December 2016, S1 asked Complainant to switch shifts with him, resulting in Complainant working extra shifts in the transition and foregoing his scheduled time off for the 2017 holiday season; d. in February 2017, S1 verbally confronted Complainant about use of the “suspend” function; and e. on July 8, 2017, S1 did not acknowledge Complainant’s request for sick leave, though he approved it. After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Complainant filed a Motion to Amend to include an allegation that the Agency subjected him to discrimination and harassment in reprisal for his EEO activity by interfering with his private business interests and making false statements to a private employer. The AJ denied Complainant’s motion. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In the decision, the AJ also denied Complainant’s reconsideration request of the AJ’s denial of his request to amend his complaint. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Through his attorney, Complainant argued that the AJ erred: (1) by too narrowly applying the standard for determining whether Complainant proved the Agency’s proffered legitimate, nondiscriminatory reasons were false or pretexts for discrimination; (2) by not considering the evidence under a mixed-motive analysis; (3) in holding that the disputed material facts were immaterial and failed to acknowledge several 2020003383 3 credibility concerns with regard to Agency witnesses; and (4) in denying Complainant’s Motion to Amend his complaint and subsequent Request for Reconsideration. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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 he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. On appeal, Complainant argued that there are material facts in dispute and a need for credibility determinations based on S1’s “wildly inconsistent and frequently contradicted testimony.” We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have “a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.” See Id., 7-1; see also 29 C.F.R. § 1614.109(e). Here, Complainant had an opportunity to cross examine witnesses during their depositions. In addition, to the extent that there are any discrepancies in S1’s testimony, we find that there are no genuine issues of material facts or credibility when the evidence is viewed in the light most favorable to Complainant. As such, we find that the AJ properly issued a decision without a hearing. Motion to Amend As an initial matter, we address Complainant’s Motion to Amend and his subsequent Request for Reconsideration of the AJ’s denial of his motion. A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. See 29 C.F.R. § 1614.106(d). In this case, the AJ denied Complainant’s Motion to Amend based on his delay in bringing his new allegations. The AJ noted that Complainant should have had a reasonable suspicion of discrimination when he learned of S1’s involvement in March 2018. 2020003383 4 The AJ further noted that Complainant obtained legal counsel in March 2018, and he filed a claim in state court against S1 in May 2018, yet he waited until July 27, 2018 to file his Motion to Amend. The AJ stated that the EEOC’s regulations require an employee to contact an EEO counselor within 45 days of the onset of a reasonable suspicion of discrimination, but Complainant waited more than 45 days. While Complainant requested that his deadline be tolled because he received bad legal advice from his then attorneys, the AJ found that a mistake of legal strategy will not toll Complainant’s obligation to preserve his claims in the EEO forum, and that there were no impediments to Complainant bringing his motion to amend to the attention of the AJ as soon as he learned of S1’s involvement. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). On appeal, Complainant argued that the AJ’s “strict application” that his motion was untimely because it was filed more than 45 days after the event is “unreasonable and clear error.” However, we find that Complainant did not provide any legal authority to support his argument that the AJ’s determination was “unreasonable and clear error.” Rather, the Commission has previously found that discrete acts should be raised before an AJ within the timeframe prescribed in our regulations. See Mitchell v. U.S. Postal Serv., EEOC Appeal No. 0120051916 (Feb. 28, 2007). Further we note that Complainant did not provide any evidence showing that the AJ abused his discretion when he denied Complainant’s Motion to Amend. In addition, Complainant argued that he did not have a reasonable suspicion that he could pursue a claim of discrimination in the EEO process, based on the advice of his then legal counsel, because he did not believe that he could hold the Agency liable for S1’s private actions, which were outside the scope of S1’s employment. However, 29 C.F.R. § 1614.605(e) states that a complainant shall at all times be responsible for proceeding with the complaint whether or not he has designated a representative. We find that Complainant’s explanation that he relied upon inaccurate legal advice does not excuse his responsibility in the processing of his EEO complaint. As such, we find that the AJ did not err when he denied Complainant’s Motion to Amend. 2020003383 5 Disparate Treatment and Harassment For claims 1-3, assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race and national origin, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions, and that Complainant did not show that the reasons were pretexts for discrimination. On appeal, Complainant argued that the AJ erred by too narrowly applying the standard for determining whether Complainant proved the Agency’s proffered legitimate, nondiscriminatory reasons were false or pretexts for discrimination. However, Complainant did not provide any explanation for his argument, and we find that the AJ did not err. Regarding claim 1, Complainant argued that while some of the changes in case assignment could be attributed to the hiring of additional staff and other variables, the evidence established that Complainant’s decline was more pronounced than other employees outside of his protected classes. Complainant also argued that the AJ ignored the fact that S1 oversaw the case distribution system. However, Complainant did not provide any evidence, aside from his own statement, to show that S1 had control over the case distribution system. Rather, the Chief Healthcare Technology Manager, who oversaw the case assignment system, provided a declaration that the system directs the assignment of cases, and that assignments are verified by “Flight Controllers,” who are supervised by those who report directly to him. For claim 2, Complainant asserted that the AJ simply accepted S1’s claim that the initial request for CME was denied because of staffing shortages, but did not require the Agency to provide any proof of this claim, such as evidence that having only four people scheduled on the days that Complainant requested his CME constituted a staffing shortage. However, an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretexts for discrimination. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Soc. Sec. Admin., EEOC Request No. 05980011 (Apr. 26, 2001). Here, Complainant did not provide any evidence to show that S1’s reasons for denying Complainant’s CME request were untrue. Regarding claim 3,2 Complainant argued that the AJ erred when he found that Complainant failed to prove the Agency’s proffered legitimate, nondiscriminatory reasons were false or pretext for discrimination. Complainant asserted that S1 was the most responsible for the action when he recommended that Complainant’s employment be terminated at the end of his contract, and that the Chief made the ultimate decision. 2 The AJ noted that claim 3 was essentially a termination of Complainant’s employment. 2020003383 6 The AJ found that S1’s primary concerns were related to an overdue study and a complaint by another manager,3 and that concerns about Complainant’s teamwork, attitude, and past employment were corollaries to S1’s primary concrete concerns over the overdue study and complaint with respect to Complainant’s removal. However, we note that the Chief testified that he made the decision based on S1’s recommendation that Complainant was bad for morale and not a team player. Chief Deposition at 36-7. While Complainant argued that S1 misrepresented Complainant’s work ethic, we find that the record contains supporting evidence that Complainant was bad for morale and not a team player. For example, the then Associate Director (Chinese, U.S.) stated that Complainant did not handle his work in the most efficient manner, and that he would struggle with his workload, which could spill over to his coworkers and negatively impact them. ROI at 260. In addition, the then National Teleradiology Program Director (half Japanese, half Caucasian, U.S.) testified that when the discussion of Complainant’s renewal came up in May 2017, he did not believe that Complainant’s renewal would be automatic. The Director testified that he received feedback that members of the staff expressed concerns that Complainant was not a team player in terms of how he managed his workload. Director Deposition at 46, 60-1. Even crediting Complainant’s assertions that S1 was not truthful about Complainant’s case assignments; CME request; or removal, a showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. As such, we find that Complainant did not establish that the Agency discriminated against him based on his race or national origin when the Agency assigned Complainant’s cases, which were 56.3% outside his sub-specialty; denied his CME request; and issued a Notification of Expiration of Excepted (Temporary Hire) Appointment. Regarding the harassment claim, Complainant argued that the AJ concluded that the complained of incidents were not sufficiently severe or pervasive enough to create a hostile work environment, which was a gross oversimplified mischaracterization of the seriousness of the claim. Complainant also asserted that the AJ failed to recognize that he was treated disparately as compared to his colleagues. However, Complainant offered no evidence to show that the complained of incidents occurred because of his protected classes. For example, multiple coworkers noted that use of the suspend function was an issue that was raised with the employees in staff meetings and individually. 3 On appeal, Complainant argued that the complaint had not even been made at the time the decision was made to not convert Complainant to a permanent position, but the complaint was made in May 2017, prior to the issuance of the Notification of Expiration of Excepted (Temporary Hire) Appointment on July 6, 2017. ROI at 385. 2020003383 7 ROI at 229, 268, 277, 321-2. Accordingly, we find that Complainant did not establish that the Agency subjected him to a hostile work environment based on his race or national origin. We also find that the AJ did not err when he did not consider a mixed-motive analysis. Cases where there is evidence that discrimination was one of multiple motivating factors for an employment action, that is, the employer acted on the bases of both lawful and unlawful reasons, are known as “mixed motive” cases. Once an employee demonstrates that discrimination was a motivating factor in the employer’s action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep’t of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). If the employer is able to meet this burden, the employee is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, and/or back pay. But the employee may be entitled to declaratory relief, injunctive relief, attorneys’ fees, or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). As noted above, Complainant did not demonstrate discrimination as a motivating factor. Accordingly, we find that the AJ did not err when he did not conduct a mixed-motive analysis. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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). 2020003383 8 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. 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. 2020003383 9 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 August 4, 2021 Date