[Redacted], Merrill O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020001900 (E.E.O.C. Aug. 3, 2021) Copy Citation 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. 2020001900 Hearing No. 520-2018-00218X Agency No. 200H-0561-2016103908 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge’s (AJ) decision without a hearing concerning an 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. and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Health Systems Specialist, GS-0671-11, internally known as Deputy Facility Telehealth Coordinator (DFTC) within the New Jersey Health Care System (NJHCS) located in East Orange, New Jersey. On February 17, 2016, Complainant filed an EEO complaint alleging discrimination and a hostile work environment by the Agency based on sex (male) and reprisal (prior EEO activity) when: (1) in or about June-July 2014, the Associate Chief of Staff Ambulatory Care Services (S1) denied Complainant’s training request to attend the National Telehealth Conference in 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. 2020001900 2 Westminster, Colorado, occurring from July 21-24, 2014; (2) at the end of August 2014, Complainant learned that S1 denied his August 20, 2014 request to participate in the Project Management Fellows Program with the Veterans Affairs Acquisition Academy; (3) in July 2015, Complainant learned that since sometime in 2012 and continuing to present, he has been receiving less pay than a female employee in a Lead FTC position, although they perform the same job duties;2 (4) on September 9, 2015, the Deputy Associate Chief of Staff (S2) and the Administrative Officer/Program Manager (PM) advised Complainant that he would not be receiving a requested detail to a National Training Specialist position, and on September 16, 2015, the Director, National Telehealth Resource Center (D1) confirmed that Complainant was denied the requested detail; (5) on or about September 30, 2015, Complainant was not selected for the position of Supervisory Patient Representative in the James A. Haley VA Medical Center in Tampa, Florida, under Vacancy Announcement No. ZX-15-CYR-1511603; (6) on March 4, 2016, Complainant learned that S1 provided a reference for a Supervisory Patient Representative position located in Tampa, Florida, that was inconsistent with his years of excellent service, and he viewed S1’s involvement as “willfully obstructing his ability to compete for career opportunities;” (7) on May 15, 2017, Complainant made a request to S2 to be transferred to a southern Community-Based Outpatient Clinic (CBOC) as his primary duty status. Complainant had previously made a similar request to the Lead FTC (LFTC2). On June 2, 2017, LFTC2 denied Complainant's request. All similar requests made in the past by female employees within the NJHCS were approved; and (8) in or about January-February 2017, Complainant applied for the position of Quality Coordinator under Vacancy Announcement No. BH-17-ML-1897402- BU. Complainant was interviewed for the position on March 3, 2017. Both S1 and PM were on the interview panel, despite them having knowledge of Complainant's prior complaints against them. The Agency has refused to fill this position.3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The AJ subsequently granted the Agency’s motion and issued a decision by summary judgment finding no discrimination or reprisal. When the Agency did not issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. 2 Complainant raised an Equal Pay Act violation with respect to this claim for the first time in his brief in opposition to summary judgment. 3 The Agency dismissed Claims 1, 2, and 4 as discrete acts for untimely EEO Counselor contact in accordance with 29 C.F.R, §1614.107(a)(2). The Agency, however, determined that the claims would be considered as background evidence in support of Complainant’s hostile work environment claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s decision in that regard. 2020001900 3 FACTUAL BACKGROUND Complainant began his employment as a DFTC on October 1, 2012. The DFTC position is a Title 5 position under the United States Code (USC) and Complainant was appointed at the GS- 9, Step 1 pay rate. The NJHCS also has a Lead Facility Telehealth Coordinator (Lead FTC), which is a Registered Nurse position, governed under Title 38 of the USC. S1 (Female; Prior EEO activity), hired Complainant as the DFTC. Claim 1 Funding for the National Telehealth Conference was allotted for only one FTC to attend and S1 chose the Lead FTC (LFTC1) (female) because she was the person responsible for the Virtual Health Program. The Veterans Integrated Services Network (VISN)4 wanted a physician to attend the conference due to the Primary Care Virtual Health component. When the VISN contact reached out to LFTC1 for a suggestion, she suggested that the Associate Chief of Staff, Ambulatory Care (Female; No prior EEO activity), attend as the lead for Tele-Primary Care. S1 apologized to Complainant about him not being selected to attend the conference. Claim 2 The Project Manager (GS-12) for Ambulatory Care (PM) (female; no prior EEO activity) requested to participate in the Project Management Fellows Program. Because the program involved the participant leaving their regular position for an extended period of time multiple times a year, S1 spoke to her supervisor, the Chief of Staff, about it. PM was approved because her position was a Project Manager and because her local work would be addressed during the Fellows Program, which would be beneficial to the facility. About a week later, Complainant made his request to attend. S1 explained to Complainant that she would not have sent two people to the program at the same time due to the time spent away from work. Claim 3 The Lead FTC position was always a Registered Nurse position, appointed under Title 38 of the USC. At the time the Lead FTC position was created, it was a non-supervisory position, but it was later changed to a supervisory position. Complainant admitted that before his appointment to the DFTC position, the Lead FTC position was already a Title 38 position and the Deputy FTC was already a Title 5 position. Complainant currently reports to the Nurse Manager and Lead FTC (LFTC2) (female; no prior EEO activity). LFTC2 was appointed to the position in June 2015. LFTC1 left the position on or about December 2014. 4 The Agency’s Veterans Health Administration is divided into geographic areas called Veterans Integrated Services Networks. 2020001900 4 S1 testified that when the Virtual Health Program started in 2013, the facility was given discretion to decide the type of positions at their facility to support the program. Since the Virtual Health Program supported clinical care, she determined that the lead person should be a clinician, a Registered Nurse. The Lead FTC and DFTC are not in the same category and are paid under different pay schedules. At some time, Complainant made suggestions to S1, involving restructuring the Virtual Health Program and having him co-lead the program as a GS-12. After listening to his suggestions, S1 and his supervisor met with Human Resources and they were told that while they could change his position into a supervisory position, he would still be a GS-11. For his position to be classified at the GS-12 level, he would need to supervise a certain number of lower-graded staff (e.g., GS-11, GS-9), which the program did not have available for him to supervise. S1 still offered to change his position into a supervisory position as a GS-11. Complainant declined the offer. Claim 4 On September 8, 2015, D1 announced a detail opportunity for 120 days with the potential of an extension. The next day, Complainant emailed S1, S2 and PM about the opportunity as it required supervisory consent. S2 told S1 and PM that she was open to Complainant’s participation in the detail and recommended his participation. They agreed that it would be a good opportunity for Complainant, but they had concerns about the length of the program due to the upcoming Conditions of Participation audit.5 They wanted to make sure they were prepared for the upcoming audit, and that staff would be available to address any issues that may arise. S2 also stated that she asked Complainant if he would consider applying for a later cycle of the detail, which would start in February of the next year instead of October, but he refused. S2 also stated that there were concerns that the detail would exceed six months and if so, impact the program’s ability to meet expectations. Before a decision was made, PM emailed D1 and inquired whether an extension to the detail would be something that the home facility would have to agree to as a detail lasting longer than four months may be difficult to support. D1 informed her that due to the hiring freeze, only VISN and Veterans’ Affairs Central Office employees qualified for the detail opportunity. It was not open to Facility employees, such as Complainant. D1 informed Complainant and his union representative of the same. She encouraged him to apply once the hiring freeze was lifted. S1 denied taking any action based on Complainant’s sex or prior EEO activity. S2 testified that she recommended Complainant for the detail. 5 A Conditions of Participation audit commonly refers to an audit to ensure that the telehealth program complies with the internal (conditions of participation) and external (joint commission) accreditation process. 2020001900 5 Claims 5 and 6 S1 provided a reference over the phone for Complainant’s application for the Supervisory Patient Representative position in Tampa, Florida. S1 testified that the caller wanted a supervisor for the position, and the supervisor seemed disappointed upon learning that Complainant was not a supervisor. The caller asked whether Complainant wrote performance appraisals, which as a DFTC, he did not do. S1 tried to advocate for Complainant and discuss his strengths and ability to perform as a supervisor, but the caller wanted an experienced supervisor and cut the call short. Complainant did not know someone from Tampa had called S1 for a reference until she told him. His suspicion of discrimination came from S1’s use of the word “strong” when she told him she provided a “strong reference” for him. He questioned why she would use the word “strong” when referring to his “outstanding” and “excellent” performance. The certificate of eligible candidates for the position was issued on October 15, 2015. Although 20 candidates qualified for the position, no selections were made for Vacancy No. ZX-15-CYR-1511603. Claim 7 Complainant based his transfer request on providing additional supervisory oversight for the southern CBOCs and to be closer to his family. As a DFTC, he did not supervise staff and there was no need to relocate him as management oversight was already in place for the southern CBOC. Based on his request to be closer to his family, management consulted with CBOC leadership about space in the Brick and Tinton Falls locations. Due to lack of space, those locations were not able to provide space for Complainant and his request was denied. LFTC2 stated that three female employees requested transfers to different locations during her time as the Lead FTC. She stated that one request was also denied due to lack of space and two requests were granted as the locations had vacant positions which were identical to the positions they held. Complainant identified four individuals (C1, C2, C3 and C4) whom he believes were treated differently. LFTC2 stated that she had not received requests from C1 or C2. She further stated that C3 was reassigned out of the CBOC to the Lyons Campus due to patient care and programmatic needs, and that C4 was reassigned as there was a vacancy for her position at the location she requested. Claim 8 The vacancy for the Health System Specialist (Quality Coordinator), GS-12, position was announced during the period of January 19, 2017 to February 7, 2017. On January 23, 2017, a freeze was placed on the hiring of federal civilian employees in the executive branch, which prohibited filling vacant positions. This position was not exempt from the hiring freeze. Although no offer of employment could be extended at that time, recruiting efforts continued during the hiring freeze and the Agency eventually received authority to fill the position. 2020001900 6 Complainant was identified as one of five eligible candidates and interviewed on March 3, 2017 by a four-member panel. The panel included S1, PM, the Systems Redesign Coordinator (SRC) (female), and the Assistant Chief of Medical Administrative Support (AC). The record shows that Complainant received the lowest interview scores from all panelists, except S1, who gave him the second highest score among the five candidates. As such, Complainant had the lowest overall average score of 50.25 after interviews. The selectee (SE) (female; prior EEO activity unknown) had the highest average score of 72.75 after the interviews and all four panelists recommended her for the position. The selection was made based on the score and by unanimous recommendation of the interview panel. SE was appointed to the position on June 11, 2017. When asked to explain why he believed he was the best qualified candidate, Complainant stated that he was “plainly superior to the selectee,” but admitted that he does not know the qualifications of other candidates. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a summary judgment decision upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a summary judgment decision, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. review of the record does not reveal any genuine disputes of material facts and, accordingly, we find that the AJ properly issued summary judgment. Hostile Work Environment To establish a hostile work environment claim, 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 2020001900 7 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). The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming, arguendo, that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal.6 Thus, upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that with respect to incidents (1), (2), and (4) - (8), the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. Wage Discrimination - Claim 3 The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsid. den’d, EEOC Request No. 05A10076 (Aug. 12, 2003). 6 The purported evidence in support of Complainant’s claims consist of mere assertions, bare allegations, and factual assumptions, which are not enough to oppose summary judgment. To defeat a motion for summary judgment, Complainant must do more than show that there is some metaphysical doubt as to the material facts. He must present “specific facts showing that there is a genuine issue for trial.” Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). 2020001900 8 The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17(a). Here, Complainant has failed to establish that he performed equal work that required equal skill, effort, and responsibility, as his higher-paid female colleagues who filled the Lead FTC position during different timeframes. The record shows that the Lead FTC (Title 38 position) and DFTC (Title 5 position) have different qualifications and fall under different pay categories and pay schedules.7 Most importantly, the record shows that to qualify for the Lead FTC position, the individual would need to be a Registered Nurse. The undisputed record shows that Complainant lacked this essential qualification for the Lead FTC position. In addition, the Lead FTC position is a supervisory position, while the DFTC position is not. The record reveals that the Lead FTC serves as the clinical expert of Telehealth and supervises Registered Nurses. We note that Complainant argued that he was entitled to more pay when he performed additional duties in the Lead FTC’s absence, which undermines his argument that the duties of the Lead FTC position are the same as the DFTC’s duties. The record also shows that Complainant did not perform the supervisory duties of the Lead FTC position when he filled in for LFTC2. Those supervisory duties were assigned to S2. Management officials explored whether Complainant’s position could be converted to a supervisory position, but Complainant declined because Human Resources stated that his grade would remain the same. While some Lead FTC duties overlap with DFTC duties, the undisputed record shows that there are additional distinct duties performed by the Lead FTC. We find that Complainant has not shown that he had received lower pay than a female employee for equal work, requiring equal skill, effort, and responsibility. For these same legitimate, nondiscriminatory reasons, we find Complainant's claim of sex-based wage discrimination under Title VII must fail as he failed to demonstrate that these reasons were pretextual. 7 S1 structured the facility’s Telehealth Program prior to Complainant’s appointment as the DFTC. Complainant conceded that S1’s initial decision to designate the positions as Title 38 and Title 5 was not based on his sex or in reprisal for his EEO activity. 2020001900 9 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. 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). 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). 2020001900 10 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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 August 3, 2021 Date Copy with citationCopy as parenthetical citation