[Redacted], Ollie N., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020000165 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ollie N.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020000165 Agency No. HHS-OS-0039-2017 DECISION On October 2, 2019, 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 August 30, 2019, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Administrative Law Judge (ALJ) at the Agency’s Office of Medicaid Hearings and Appeals (OMHA), Arlington Field Office, in Arlington, Virginia. On June 2, 2017, Complainant filed an EEO complaint alleging the following: 1. The Agency subjected him to the harassment on the bases of national origin (French), sex (male), religion (Christian), disability (physical), age, and reprisal for prior protected EEO activity when: 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. 2020000165 2 a. Complainant was denied resources to accomplish his mission (i.e., a scanner); b. A management official yelled at Complainant; c. Management delayed implementing Complainant’s reasonable accommodation (a computer) (January 2017); d. Management failed to approve awards for Complainant’s subordinates; e. Complainant did not receive an award (Quality Step Increase); f. Management inappropriately provided a copy of a statement Complainant made about the subject of an investigation to that individual; g. Complainant was sent an email with an attachment containing a cartoon that Complainant found inappropriate and offensive; and 3. The Agency subjected Complainant to harassment in retaliation for his prior EEO activity when the following occurred: a. Complainant was placed on administrative leave pending the outcome of a complaint filed with the Merit Systems Protection Board to remove him from Federal service (January 19, 2018); and b. Complainant was placed in a furloughed status due to a lapse of appropriations (January 22, 2018).2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent results: Regarding his alleged basis of reprisal, he attested that he previously participated in prior EEO activity involving a legal assistant (LA1) and his managers were aware of this. Complainant attested that his disability was that he had an arthritic hand and carpal tunnel syndrome. He alleged that management was aware of his disability because he wore a brace for 8 months and he filed a reasonable accommodation request in November 2016. Regarding claim (1a), Complainant attested that, in March 2016, a Hearing Office Director (HOD1) stated that the ALJs could get scanners and that any ALJ wanting one should let him know. Complainant attested that he responded immediately, requesting one for himself and his LA1 who was working from home, but HOD1 responded that LA1 could not have one and, while the other ALJs received their scanners, Complainant did not. He also alleged that the Associate Chief ALJ advised him to use another legal assistant (LA2) to assist him when he knew that LA2 was incompetent. Complainant alleged that he never received a scanner. HOD1 attested that, on February 1, 2017, he emailed all the ALJs to advise them of the availability of the scanners. 2 The complaint initially consisted of claim (1). It was amended to include a second claim, which, upon amendment was incorrectly numbered as claim (3). There is no claim (2). For the sake of consistency, the numbering here is kept the same. 2020000165 3 He attested that he forwarded three ALJs names to the Supervisory Program Analyst (SPA1), but he did not include Complainant because he interpreted an email from Complainant to mean that he did not want one. He attested that, in May 2017, Complainant indicated that he wanted one and he subsequently received one. HOD1 attested that he did not provide any equipment to employees working at an alternative duty station, not just LA1. He also attested that he was involved in the recommendation that LA2 assist Complainant and, while he had received complaints about LA2’s performance, he had received such complaints about many of the legal assistants. The Associate Chief ALJ attested that he did not recall recommending that LA2 work for Complainant but indicated that LA2 seemed competent. SPA1 attested that HOD1 directed her to obtain a scanner for Complainant around May 2017. Regarding claim (1b), Complainant attested that the Associate Chief ALJ yelled at him on February 6, 2017 and September 21, 2017, including statements referencing Complainant’s work that involved his decision for LA1’s EEO case. He also alleged the Associate Chief ALJ made statements indicating that Complainant was making it difficult for all the judges and if management had done their job and removed the employee who harassed LA1, that decision and her full-time telework would not have been necessary. He attested that, on September 21, 2017, the Associate Chief ALJ called him into his office, asking many questions in a “nasty” way. He alleged that he reported the incident on July 3, 2017 and the harassment increased. Complainant indicated that a Hearing Office Director (HOD2) was a witness to the allegations. HOD2 attested that he witnessed the alleged events on September 21, 2017 and the Associate Chief ALJ never raised his voice in the conversation, but Complainant raised his voice. The Associate Chief ALJ denied yelling at Complainant, but he acknowledged questioning him, including about his understanding of the law and whether Complainant had litigated the question at issue. He attested that he was concerned about Complainant’s decision to grant 5 days telework to LA1 because a legal assistant’s duties require her to be present in the office. Regarding claim (1c), Complainant attested that, in November 2016, he requested a lightweight computer from HOD1 as a reasonable accommodation (RA) and was told that he needed to go through the RA process. Complainant alleged that the RA request was approved in December 2016 and HOD1 should have directed SPA1 to arrange the fulfillment of the laptop request. Complainant attested that he received the laptop on or about January 31, 2017, but he should have received it sooner. HOD1 attested that he instructed his office to order the equipment the same day that he received notification of the approval of Complainant’s request. SPA1 acknowledged that there was a delay in providing the computer to Complainant, noting that, originally, she requested a transfer of asset, but headquarters was not responsive, so she requested a new laptop. SPA1 attested that she requested that it be expedited because it was for a RA. 2020000165 4 Regarding claims (1d and 1e), Complainant attested that one of his employees was named “Office Most Valuable Player” and another was “Rookie of the Year” but neither received the monetary increases they deserved. He also clarified that he nominated them for quality step increases (QSIs) and neither received it. He alleged that HOD1 was responsible for this, but HOD1 denied having denied either of the employees a time in grade increase and attested that he did not have the authority to deny or grant a QSI. The Executive Director (ED) attested that she was the deciding official for awards for Fiscal Year 2017, Quarters 1 through 3 and she approved an incentive award for one of the employees in one quarter, but the union/management panel did not recommend approval for the other quarters. She attested that she did not receive a nomination for an award for the other employee and she did not receive a nomination for a QSI for either of them in 2017. Regarding claim (1f), Complainant attested that a Supervisory Program Analyst (SPA2) inappropriately provided a statement that he made during the course of an investigation regarding alleged harassment to the alleged harasser. SPA2 attested that he was directed by Agency headquarters to a Proposal to Suspend the employee at issue, along with supporting statements, including Complainant’s. Regarding claim (1g), Complainant attested that, April 19, 2017, the Associate Chief Justice sent an offensive email that did not encourage diversity with an attached a copy of LA1’s grievance. The Associate Chief Justice attested that, on April 20, 2017, he was required to attend a meeting with the new Agency Secretary and he sent an email to all the ALJs containing a picture of Martin Luther and indicating that he was going to present the Agency Secretary with the office’s list of grievances. Complainant attested to other alleged discriminatory acts, including that he requested but never received his renewed PIV card, there were investigations against him, his employees were being questioned, and he was unable to access his email. He also alleged that management failed to act in accordance with safety policies, requiring him to get involved in an employee’s case and his privacy was violated when letters regarding his disability were included in an MSPB complaint. The Associate Chief Justice attested that PIV cards were handled by administrative staff and Complainant was informed that his card was renewed. He attested that Complainant did not have to deal with the employee’s situation because there as an armed guard where the incident occurred, the guard witnessed the occurrence, and there was a video as well. He also attested that there was an investigation into Complainant’s alleged misconduct. The Chief ALJ attested that she was provided a copy of the MSPB complaint at issue and the attached exhibits included a letter regarding Complainant’s disability in 1999. She explained that this letter was from Complainant’s electronic personnel file or was part of his OPM application record and it was customary to attach such documents in the course of such actions. 2020000165 5 ED attested that she reported a 2016 complaint against Complainant and recommended a peer review to determine if the issues with Complainant were isolated or systemic. She also affirmed that the disability letter was part of Complainant’s personnel file and had to be included as an exhibit to the MSPB complaint and that he was on administrative leave and did not have a right to access Agency email. Regarding claim (3a), Complainant attested that, on January 19, 2018, he was given written notice that he was being placed on administrative leave and the proposed action against him was removal. He attested that the allegations in the complaint were not true and alleged that the attorneys who interviewed his employees humiliated and bullied them and management was trying to cover up previous and continuing safety violations. Complainant made numerous allegations challenging the authority of members of management and the allegations against him. Management attested that Complainant was placed on administrative leave, pending the outcome of an MSPB complaint seeking his removal. They explained that several things led to the MSPB complaint, including that Complainant did not properly supervise his staff, as he failed to assign sufficient work to his legal assistant and staff attorney, failed to accurately reflect the legal assistant’s work assignments in her performance plan, and failed to interact with his staff attorney in terms of performance feedback; Complainant failed to follow instructions from his supervisor to provide key information relating to his supervision of staff; and a peer review of a random selection of Complainant’s hearings and decisions over a 6-month period showed that he consistently failed to create an adequate administrative record, was often confused during hearings, and did not provide basic due process to all parties or potential parties during hearings, and his written decisions were mostly not legally sufficient. Management further explained that Complainant was placed on administrative leave because he failed to competently perform his job duties as an ALJ, noting the low quality of his hearings and decisions violated the Administrative Procedure Act, the Medicare regulations, and OMHA policy and a lack of confidence in Complainant's ability to competently adjudicate claims, issue legally sufficient decisions, and provide due process for claimants. Management explained that Complainant's overall conduct was detrimental to the interests of the federal government and the only option pending a final decision on the MSPB complaint was to place him on administrative leave pursuant to federal regulations. Management explained that there was no Agency policy related to work status while MSPB complaints were pending and each matter was reviewed on a case-by-case basis. Management determined removal was the only option due to the egregious nature of Complainant’s conduct. Regarding claim (3b), Complainant alleged that he was subjected to harassment when he was placed on furlough status, due to a lapse of appropriations on January 22, 2018. He argued that ALJs could only be placed on furlough status after an MSPB hearing and that ALJs, as “essential” employees, were not subject to furlough. 2020000165 6 Management acknowledged that other ALJs were not placed on furlough. However, management explained that the furlough was due to a lapse of appropriations because Congress failed to timely pass a spending bill and, under these circumstances, agencies are precluded by law from allowing employees to continue work on activities that are considered “non-exempt.” Management further explained that Complainant was on administrative leave, which is a non- exempt activity. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision dismissed claims (1d) and (1e), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant asserts that his appeal is timely and discusses the validity of the appointments of various Agency managers, executives, and ALJs and their authority under the law. He also discusses federal law concerning appointments, Agency policies and procedures and various matters of administrative law. He also includes evidence in support of his claims. In response, the Agency argues that it properly dismissed Complainant’s claims based on the denial of awards/QSIs for his subordinates. It argues that it correctly determined that Complainant failed to present evidence that he was subjected to a hostile work environment and/or disparate treatment on the alleged bases when he was placed on administrative leave and furloughed and that the Agency’s reasons for placing him on administrative leave and furloughing him were a pretext for discrimination. It argues that it correctly determined that Complainant failed to prove that he was a victim of a hostile work environment and that the alleged incidents were severe or pervasive enough to create a hostile work environment. 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”). 2020000165 7 Dismissed Claims Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If a complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, the Agency dismissed Complainant’s claims (1d) and (1e) alleging the Agency failed to award Complainant’s employees awards and QSIs. We concur with the Agency that, in these claims, Complainant failed to allege sufficient facts that, if proven true, would establish that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. These allegations are that the Agency denied other employees awards and pay increases, not Complainant. Therefore, we find these claims simply do not state viable claims of discrimination or unlawful retaliation. Harassment Claim To establish a claim of hostile environment harassment, a 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 national origin, sex, religion, disability, age, and/or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Some of Complainant's allegations include petty annoyances and trivial slights and reflect his disagreement with managerial decisions, including the speed of providing equipment, procedures during investigations, administrative leave, and furloughs. 2020000165 8 Complainant’s allegations reflect verbal disagreements with management or being spoken to in a way Complainant found unpleasant. 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). 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). Thus, Complainant's allegations, even if true, are insufficient to establish a claim of discriminatory harassment. Disparate Treatment Claims 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 a complainant to prevail, he or she 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). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated legitimate, nondiscriminatory reasons for the actions at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Complainant’s allegations regarding having been placed on administrative leave and being furloughed give rise to claims of disparate treatment. 2020000165 9 However, even assuming arguendo that he established a prima facie case, these claims would fail because the agency articulated legitimate, nondiscriminatory reasons for its actions and the record does not establish by a preponderance of the evidence that these actions were motivated by discriminatory intent. The Agency explained that Complainant was placed on administrative leave, pending the outcome of an MSPB complaint seeking his removal. The Agency explained its reasons for seeking removal and placing Complainant on administrative leave, including that there was a lack of confidence in his ability to competently adjudicate claims, issue legally sufficient decisions, and provide due process for claimants. The Agency explained that Complainant's overall conduct was detrimental to the interests of the federal government and the only option, pending a final decision from the MSPB, was to place him on administrative leave. Regarding Complainant’s being furloughed while on administrative leave, the Agency explained that Congress had failed to timely pass a spending bill and agencies were precluded from allowing employees to continue work on activities, including being on administrative leave, that were considered “non-exempt.” We recognize that Complainant has alleged the Agency acted discriminately and in retaliation for his prior EEO activity and that the Lead Program Analyst provided testimony in support of these allegations, the record is insufficient to establish that Complainant’s national origin, sex, religion, disability, age, or prior EEO activity played any role in these actions. 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 action. 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). 2020000165 10 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. 2020000165 11 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 June 8, 2021 Date