[Redacted], Robin H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 23, 2021Appeal No. 2020004248 (E.E.O.C. Dec. 23, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Robin H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004248 Agency No. 200P-0348-2019101058 DECISION 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 June 19, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Counselor at the Agency’s Regional Office in Portland, Oregon. Complainant stated that he was on medical leave in the summer of 2018, and that management officials proposed placing him on a performance improvement plan (PIP). However, Complainant averred that he was not placed on a PIP because his first-line supervisor, a Supervisory Vocational Rehabilitation Counselor (Supervisor) (Caucasian, prior EEO activity), did not follow the directive. Report of Investigation (ROI) at 53. 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. 2020004248 2 On September 24, 2018, the Supervisor emailed a Human Resources Specialist to inform her that he wanted to place Complainant on a 90-day PIP and defer the end of Complainant’s rating period until the end of December. The Human Resources Specialist responded that they were instructed to no longer issue 90-day PIPs, and that employees should be given monthly feedback, and if they are unsuccessful in a critical element, they may be granted up to four pay periods (2 months) to correct any performance deficiencies. ROI at 157-8. The Supervisor stated that on November 6, 2018, he shared with Complainant’s second-line supervisor, a Vocational Rehabilitation and Employment Manager (Manager) (Caucasian, no prior EEO activity), reasons for giving Complainant a Fully Successful performance rating. The Supervisor noted that, while Complainant was “struggling in his performance,” the Supervisor believed that this was a fair rating when applying mitigating factors. The Supervisor averred that the Manager instructed him to place Complainant on “something like a PIP” and extend Complainant’s rating period on November 17, 2018. ROI at 107. On November 26, 2018, the Supervisor emailed the Assistant Director (Caucasian, prior EEO activity), and stated that he did not agree with extending Complainant’s rating period and supported issuing a Fully Successful rating for Complainant based on a consideration of mitigating factors. The Supervisor added that he believed that Complainant was being subjected to disparate treatment. The Assistant Director asked if the Supervisor mitigated any other employee’s performance, and if so, to provide detailed information for the past five years. ROI at 78-9. On November 30, 2018, the Manager responded that, based on the Supervisor’s belief that Complainant was being subjected to disparate treatment, they would review evaluations for the past three years (original request was five years), and she asked that the Supervisor provide a detailed rationale for each instance of mitigation. ROI at 161. Complainant averred that on December 3, 2018, the Supervisor informed him that the Manager was attempting to change his performance rating from satisfactory to unsatisfactory. Complainant claimed, that after the Manager learned of his EEO complaint in January 2019, she changed her mind and agreed to a satisfactory performance rating. ROI at 56. On March 12, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (African American) and disability (learning disorder), and in reprisal for prior protected EEO activity (Agency case no. 200P-0348-2018), when: 1. during the summer of 2018, while Complainant was out on medical leave, management officials placed Complainant on a PIP with the intention of terminating Complainant from employment; 2. management officials met at times to discuss Complainant, without the presence or participation of the Supervisor and;2 2 Complainant stated that he was not aware that management officials met without the Supervisor. ROI at 55. 2020004248 3 3. on December 3, 2018, Complainant was informed that a management official was attempting to change his performance evaluation rating from Satisfactory to Unsatisfactory. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed that Complainant was aggrieved by the management officials’ discussion, amongst themselves, about how to address Complainant’s documented production deficiencies, and found that the discussion was unconnected to any action which materially altered the terms or conditions of Complainant’s employment. The Agency also determined that the discussion would not dissuade a reasonable employee from engaging in protected activity and that it was not sufficiently severe or pervasive to create a hostile work environment within the meaning of the law. The Agency concluded that Complainant failed to prove that he was subjected to harassment as alleged. Complainant filed the appeal, and he submitted multiple statements and documents in support of his appeal.3 The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that the Manager created a hostile work environment, which led him to involuntarily retire due to an insufficient accommodation for his disability. Complainant states that the Manager did not engage in the interactive process, despite his repeated attempts to engage with her. Complainant also argues that the Manager further discriminated against him; for example, when she secretly asked his coworkers for an assessment of his work. Complainant asserts that the Agency’s final decision was biased against him and is incomplete because it did not address his disability and retaliation claims. Complainant stated that he was retaliated against when he was not offered the full range of accommodations; refused to be allowed to add information to his personnel file; and directed to participate in New Employee Training. Agency’s Contentions 3 The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). We note that any briefs filed after Complainant’s deadline will not be considered on appeal. 2020004248 4 The Agency argues that Complainant presented no evidence to show that he satisfied his burden of proof regarding his claims of unlawful discrimination, and he has not established a hostile work environment in connection with his claim. The Agency asserts that the record shows that Agency management officials did not penalize Complainant’s performance when he returned from medical leave and did not grade him inappropriately because of his race, disability, or prior EEO activity. The Agency argues that Complainant essentially invites the Commission to accept his opinion that, but for his protected classes, he would have a received higher performance rating and not have been considered for a PIP, without any evidence of unlawful discrimination. The Agency requests that the Commission uphold its final decision. 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 (EEO MD-110), at Chap. 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 New Claims and Evidence As an initial matter, we note that Complainant raises new claims on appeal, such as a failure to provide a reasonable accommodation and a constructive retirement. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, we will not address any new claims raised on appeal in the instant decision. Should he wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. In addition, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD- 110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Further, the new documents appear to be unrelated to the harassment claim at issue. Accordingly, the Commission declines to consider this new evidence on appeal. Harassment 2020004248 5 Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues (Enforcement Guidance on Retaliation), EEOC Notice No. 915.004, at II.B. (Aug. 25, 2016). Retaliatory harassing conduct is actionable if it is sufficiently material to deter protected activity, even if it is insufficiently severe or pervasive to create a hostile work environment. Id. at II.B.3. We find that Complainant belongs to statutorily protected classes based on his race, disability, and prior protected EEO activity. However, we find that Complainant did not show that he was subjected to unwelcome conduct based on one of his protected classes. We note that the record does not show that incidents 1 or 3 occurred as alleged. For incident 1, Complainant confirmed that he was never placed on a PIP, and the Human Resources Specialist stated that the Agency no longer uses PIPs to address performance issues. ROI at 53, 96. To the extent that the Supervisor averred that the Manager instructed him to place Complainant on “something like a PIP,” we note that there is no evidence that Complainant was placed on a PIP-like plan. Regarding incident 3, the Supervisor clarified that the Manager was not trying to change Complainant’s rating to unsatisfactory, but she was trying to extend his rating period. ROI at 111. For incident 2, the Assistant Director stated that he meets with the Manager, without the Supervisor, to discuss division performance and personnel issues, and the Supervisor corroborated that the Assistant Director and Manager regularly meet without him to discuss “general operational business.” ROI at 74, 110. While incident 2 occurred as alleged, we find that these meetings occurred in the normal course of business and did not subject Complainant to any harassment. The Supervisor asserted that PIPs were replaced with a “more aggressive process with shorter timelines and less due process” used to remove Agency employees. The Supervisor claimed that, after he sent the Manager an email outlining his reasons to support giving Complainant a Fully Successful performance rating, the Manager informed him that she planned to propose to remove Complainant, and the Supervisor “blew the whistle.” 2020004248 6 The Supervisor averred that the Assistant Director instructed him to “close out” Complainant’s performance rating as successful. ROI at 106-7, 112. The Supervisor stated that he found it “highly suspicious” that disparate treatment was being applied to “an employee of color,” who also had a reasonable accommodation and prior EEO activity. ROI at 107-9. The Manager denied trying to place Complainant on a PIP with the intention of terminating Complainant’s employment; rather, her intention was to extend Complainant’s performance period to give him an opportunity to be successful. The Manager stated that an audit revealed that the Supervisor improperly mitigated Complainant’s performance. ROI at 85. The record contains an email from the Manager to the Human Resources Specialist noting that Complainant had not been meeting performance standards for the past three years and has had his performance mitigated each year. ROI at 160. We note that, while the Supervisor alleged that the Manager harbored a discriminatory animus when she instructed him to place Complainant on “something like a PIP” and extend his performance rating period in November 2018, the record shows that the Supervisor wanted to do these same things even earlier in September 2018. ROI at 157. The record also shows that on October 31, 2018, the Human Resources Specialist suggested an extension of Complainant’s rating period until all of Complainant’s reasonable accommodations were implemented and he had an opportunity to demonstrate an ability to perform the essential functions of his position, in response to the Manager’s specific concerns about Complainant’s performance. ROI at 148-51. In addition, the Supervisor claimed that the Manager intended to subject Complainant to “disparate treatment” with respect to his performance rating, but we find that there is no evidence that the Manager was involved with the mitigation of the performance ratings of other employees. Specifically, in the Manager’s November 30, 3018 response to the Supervisor’s email alleging “disparate treatment” against Complainant, the Manager requested the detailed information on the instances when the Supervisor mitigated performance ratings for the past three years, which would indicate that she was not responsible for any previous decisions when an employee’s performance was mitigated. ROI at 161. We find that this evidence undermines the Supervisor’s allegations that the Manager was motivated to intentionally discriminate against Complainant due to his race and disability, and in reprisal for prior protected EEO activity. However, even crediting the Supervisor’s assertions as true, we note that Complainant was ultimately not subjected to conduct based on any of his protected categories because the Assistant Director prevented the extension of Complainant’s performance rating period and instructed the Supervisor to issue Complainant a satisfactory performance rating. As such, we find that Complainant did not establish that the Agency harassed him based on race or disability, or in reprisal for prior protected EEO activity. 2020004248 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 that Complainant did not establish that the Agency subjected him to harassment based on his race or disability, or in reprisal for prior protected EEO activity. 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). 2020004248 8 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. 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 December 23, 2021 Date Copy with citationCopy as parenthetical citation