[Redacted], Philip H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 13, 2021Appeal No. 2021001459 (E.E.O.C. Oct. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Philip H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001459 Agency No. 2004-0658-2019100747 DECISION Complainant timely 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 November 12, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are: (1) whether Complainant established that the Agency's proffered explanations for its actions were pretext to mask discrimination based on his race, sex, and age; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Certified Nursing Assistant at the Agency’s VA Medical Center in Salem, Virginia. Report of Investigation (ROI), at 10. 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. 2021001459 2 According to Complainant, the Nurse Manager (White, 56 years old, female) accused him of using too much sick leave, and therefore placed him on sick leave certification. Id. at 15. As a result, Complainant was required to submit medical documentation to support his requests for sick leave. Complainant maintained that on October 16, 2018, the Nurse Manager asked him to sign the sick leave certification documentation, but after he refused to sign the documentation, the Nurse Manager made the comment, “You people” to him. Id. Complainant averred that he took the comment to be relevant to his race and sexual orientation, so he responded by calling the Nurse Manager a “racist bitch.” Id. In response, the Nurse Manager attested that Complainant left her office after he refused to sign the sick leave certification notice and walked out of her office yelling, "You racist bitch," and repeating it over and over until he got to the entrance of the hallway where residents, family members, and staff were. Id. at 86. The Nurse Manager stated that Complainant then started screaming, “I’m going to Fuck her up, I’m going to mess her up.” The Nurse Manager further explained that Complainant continued to scream, so a coworker took Complainant to the stairwell in an effort to calm him down. Id. The Nurse Manager averred that the coworker had to physically restrain Complainant because he was threatening to physically harm her. Id. The coworker submitted a Report of Contact, writing that when she turned the corner it was Complainant stating, “I will ‘Fuck her up!’ and ‘she’s a racist bitch!’ Id. at 180. The Nurse Manager called the VA Police over the matter. Id. The next month on November 7, 2018, Complainant received his performance appraisal from the Nurse Manager receiving the rating of unacceptable on critical element six (interpersonal relationships). As a result, Complainant received a minimally satisfactory overall rating. On December 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male, sexual orientation2), and age (46) when: 1. In October 2018, the Nurse Manager told him that the Human Resources Specialist was going to do something to him, but the Nurse Manager did not specify what that meant. 2. On October 16, 2018, the Nurse Manager told the VA Police that he had to be physically restrained; she accused him of threatening her; and she accused him of saying he was going to “fuck her up;” 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021001459 3 3. On October 16, 2018, the Nurse Manager changed his duty hours from the day shift to the night shift without his knowledge; she added two more nights to his schedule; and she issued him a sick leave restriction because he called out of work. 4. On October 16, 2018, the Nurse Manager referred to him as “you people” after he dropped the sick leave certification and refused to sign it. 5. In October 2018, the Associate Director of Patient/Nursing Services ordered a fact- finding investigation. 6. On November 7, 2018, he received a negative performance appraisal. 7. On November 16, 2018, he learned the Nurse Manager went to the Salem City courthouse and obtained a restraining order against him for verbally attacking her. 8. On December 14, 2018, he attended court and used his leave for allegations the Nurse Manager made against him, but the Nurse Manager and her witnesses were not required to use their annual or sick leave to attend the hearing. On February 5, 2019, the Agency issued a Notice of Partial Acceptance/Dismissal of Complainant’s complaint. Therein, the Agency accepted claims 2-6 for investigation, but dismissed claims 1, 7, and 8 for the failure to state a claim.3 Following 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 Complainant failed to comply with the AJ’s orders and participate in the hearing process. 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for its actions regarding claims 3, 5, and 6. With regard to claim 3, the Agency noted that Complainant was asked to work the night shift during a time when multiple employees were asked to work the night shift due to low staffing levels. The Agency additionally noted that Complainant had called out sick on multiple occasions, and therefore the sick leave certification issued to Complainant was warranted. 3 We decline to address the Agency’s partial procedural dismissals herein, as Complainant does not challenge them on appeal. 2021001459 4 In addressing claim 5, the Agency noted that a fact-finding investigation was conducted due to the October 16, 2018, incident wherein Complainant was alleged to have threatened the Nurse Manager with physical harm and admittedly called her a “racist bitch.” The Agency also noted, regarding claim 6, that Complainant received a minimally satisfactory rating on his performance appraisal because he received an unacceptable rating in the element of interpersonal relationships. The Agency found that Complainant did not show that its reasons were pretextual based on his protected classes. The Agency additionally determined that Complainant did not establish that he was subjected to a hostile work environment regarding claims 2 and 4. In so finding, the Agency noted, regarding claim 2, that the Nurse Manager met with Complainant on October 16, 2018, and left her office after refusing to sign the sick leave certification notice. The Agency noted that Complainant then called the Nurse Manager a “racist bitch,” and an employee had to physically restrain Complainant after Complainant threatened the Nurse Manager with physical harm. The Agency observed that the Nurse Manager felt unsafe in Complainant’s presence due to his displayed anger, so the Nurse Manager called the VA police due to Complainant’s conduct. With respect to claim 4, the Agency explained that the Nurse Manager denied saying “you people” to Complainant after he refused to sign the sick leave certification form. The Agency therefore found that Complainant did not show that he was subjected to discrimination or harassment, as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, maintains that the Nurse Manager’s negative treatment of him began after she became aware of his sexual orientation and after an incident wherein Complainant had to apologize to a patient’s wife. Complainant asserts that management did not provide him with a reason for his schedule change and for putting him on sick leave certification. Complainant maintains that the Nurse Manager did not follow Agency procedures in putting him on the sick leave certification and used outdated documentation to support the certification. Complainant additionally contends that the VA police report indicated that the derogatory statements made by him were not punishable under Agency policy, and no one confirmed the Nurse Manager’s statement that he (Complainant) had to be physically restrained. Complainant asserts that the Nurse Manager did not hear him threaten her and she did not actually fear for her safety when she called the VA Police. He believes that the Nurse Manager’s action of calling the VA Police was motivated by discriminatory animus, and she, more likely than not, made the “you people” comment to him. Complainant additionally contends that the Agency erred in finding that he was not subjected to a hostile work environment. He notes that his previous performance evaluations were always positive, and several witnesses indicated that the environment in general was not favorable or conducive to an efficient work environment. 2021001459 5 The Agency asserts that the FAD thoroughly and accurately detailed the events and applied the appropriate legal standards to the facts. Therefore, the Agency asks that the Commission affirm its decision finding no discrimination. 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”). ANALYSIS AND FINDINGS Disparate Treatment (Claims 3, 5, and 6) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race, sex, and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 3, the Nurse Manager explained that Complainant was scheduled to work night tours on two dates during the week of July 8th through July 14, 2018, but Complainant called out sick on both occasions. ROI at 87. The Nurse Manager averred that Complainant was again scheduled to work night tours on two dates from August 5 through August 18, 2018, but again called out sick on both nights. Id. The Nurse Manager stated that multiple employees where scheduled to work the night tour during this time period due to low staffing levels. Id. In addressing claim 5, the Associate Director explained that a fact-finding investigation was conducted due to the October 16, 2018, incident wherein Complainant was alleged to have threatened the Nurse Manager with physical harm and apparently called her a “racist bitch.” Id. at 104. 2021001459 6 The Nurse Manager also averred, regarding claim 6, that Complainant received the minimally satisfactory rating on his performance appraisal because he received an unacceptable rating in the element of interpersonal relationships. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency’s reasons were pretextual based on his protected classes or that the Agency was motivated by discriminatory animus. In so finding, we note that Complainant does not dispute that he called the Nurse Manager a “racist bitch,” and that he called out sick on numerous occasions when asked to work the night shift along with other employees. We note, in addition, that a coworker submitted a statement for the record affirming that Complainant had threatened the Nurse Manager with physical harm on October 16, 2018. ROI at 180. We further note that there is simply no corroborating evidence in the record that the Nurse Manager made the “you people” comment to Complainant. Even assuming that the Nurse Manager made the comment, there is no evidence reflecting that the comment was made in relation to Complainant’s protected classes. Therefore, we find that Complainant has not established that he was subjected disparate treatment discrimination regarding claims 3, 5, and 6. Hostile Work Environment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to claim 3, 5, and 6. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With respect to claims 2 and 4, we also find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory animus. In so finding, as noted above, we note that a coworker submitted a statement for the record affirming that Complainant had threatened the Nurse Manager with physical harm on October 16, 2018. In addition, there is simply no corroborating evidence in the record that the Nurse Manager made the “you people” comment to Complainant. As such, we find that Complainant has not established that he was subjected to a hostile work environment based on his protected classes. 2021001459 7 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 finding no discrimination. 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. 2021001459 8 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. 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 October 13, 2021 Date Copy with citationCopy as parenthetical citation