[Redacted], Samuel H., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2021000543 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000543 Hearing No. 490-2019-00223X Agency No. 200I-0626-2016101364 DECISION On April 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 5, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Advanced Medical Support Assistant at the Agency’s Tennessee Valley Healthcare System in Nashville, Tennessee. On March 16, 2016, Complainant filed a formal EEO complaint alleging that he was subjected to harassment/a hostile work environment based on race (African-American), sex (male) and disability 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. 2021000543 2 1. in January 2015, Complainant was accused on cancelling a veteran’s appointment and cursing at him, which resulted in Complainant being issued an unpaid 5-day suspension; 2. on December 1, 2015, the Medical Support Assistant called Complainant “Stoop” in front of staff and veterans, and nothing was done; 3. on December 1, 2015, the Supervisory Medical Administrative Specialist did not permit Complainant to provide his account of the incident in claim 2; 4. on December 1, 2015, two named co-workers gave false statements against Complainant about the claim 2 incident; 5. on or about December 1, 2015, the Supervisory Medical Administrative Specialist removed Complainant from his desk and from the clinic and Patient Aligned Care Team (PACT), and reassigned him to the Business Office pending a fact finding; and 6. in January 2016, the Supervisory Medical Administrative Specialist informed Complainant that the Agency was using a past incident with a veteran to show that Complainant had a pattern of incidents with veterans.2 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing. Complainant did not respond to the motion. On January 30, 2020, the AJ issued a decision by summary judgment in favor of the Agency.3 The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. 2 On May 9, 2016, the Agency issued a final decision dismissing the instant formal complaint for untimely filing. The record further reflects that on March 7, 2019, an EEOC Administrative Judge dismissed the complaint for untimely filing. The Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Samuel H. v. Department of Veterans Affairs, EEOC Appeal No. 0129162088, Request for Reconsideration No. 0520170254 (June 22, 2017) and EEOC Appeal No. 2019004090 (August 29, 2019). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 3 The record reflects that the basis of disability appears in the Report of Investigation. Complainant identified his disabilities as ankle pain/neuropathy. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021000543 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove his harassment/hostile work environment 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 race, sex, and disability. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. 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). The record developed during the investigation establishes that during the relevant period Complainant was an Advanced Medical Support Assistant at the Agency’s Tennessee Valley Healthcare System in Nashville, Tennessee. Complainant did not disclose any information regarding a disability and in fact, he responded “N/A” to all of the disability questions posted by the investigator. During discovery, Complainant clarified that he received a diagnosis for ankle pain/neuropathy after the events at issue. The Advanced Medical Support Assistant was Complainant’s supervisor and the Chief of the Business Office was Complainant’s third-level supervisor. The AJ noted that in regard to claim 1, there was an altercation between Complainant and a veteran patient which occurred during when Complainant was checking the patient in for an appointment. 2021000543 4 On the day of the incident, Complainant filed his own report stating that the veteran stated “Thanks, asshole,” when walking away. In response, Complainant threatened to cancel the veteran’s appointment and call security. Specifically, Complainant told the veteran that he was “cancelling it (never did) so f*** you know.” Complainant admitted to having received Talent Management System (TMS) training on deescalating situations and when advised the Agency does not use foul language where patients are concerned. Consequently, Complainant was detailed to the Business Office pending the outcome of the investigation into the events of January 27, 2015. The Chief, Business Office (Caucasian female, unknown disability) stated that she issued Complainant an unpaid 5-day suspension because he “spoke inappropriately to a patient; using inappropriate language.” Regarding claims 2 - 6, the AJ noted that the dates of the incidents are linked to an incident on or about December 2, 2015. Complainant stated that a female van driver/patient was standing on a table to change the channel on the television, for a veteran. He stated that he approached the female patient and asked her if he could change the channel and that the end tables were not for standing on. Complainant stated that the female patient appeared annoyed and put the table back, and he retrieved towels to wipe the tables and asked if anyone would like to watch the television, and proceeded to change the channels. Furthermore, Complainant claimed that the Medical Support Assistant told him to stop acting like a “stoop” which Complainant understood as meaning lowering yourself to a reprehensible level. However, when a named supervisor arrived after being called by the Medical Support Assistant, he noted that two patients were crying. The Medical Support Assistant told the supervisor that Complainant had raised his voice at a female patient for changing a television station by standing on a chair and the other individual was crying because the female patient was crying. The Supervisory Medical Administrative Specialist (Black female, no disability) stated that Complainant was removed from the clinic and PACT team because “when there is possible patient abuse [the matter] must be sent to Quality Management for determination and due to peer complaints of hostile work environment created by [Complainant]. Duty-wise, he was still a scheduler and provided a workload to still schedule patient appointments.” Furthermore, the Supervisory Medical Administrative Specialist stated that she does not recall stating to Complainant “anything about using a past incident to reflect a pattern of incidents.” With respect to Complainant’s allegation that the two named co-workers gave false statements against Complainant about the event, the Supervisory Medical Administrative Specialist stated “to me, all provided statements mirrored each other.” She also noted that the Medical Support Assistant admitted to calling Complainant a “Snot” (as opposed to “stoop” as alleged in the claim) in her statement of incident.” According to the Medical Support Assistant, she called Complainant a “snot” because of how he treated the female patient/van driver. The record reflects that both Complainant and the Medical Support Assistant received verbal counseling for their conduct. 2021000543 5 The Chief, Business Office noted that Complainant was removed from the clinic and PACT team and reassigned to the Business Office pending a fact finding investigation. She stated “repeat communications received at the time incident personality conflicts that were not conducive to the clinic area. [Complainant] was moved to another clinic area in an attempt to find a successful work location for all concerned.” In his decision, the AJ determined that “viewing the evidence as a whole and in the light most favorable to Complainant, the undisputed evidence supports he conclusion that the Agency is entitled to summary judgment on Complainant’s complaint.” The AJ further determined that because there were no genuine of material fact, the Agency was entitled to judgment as a matter of law. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, sex, and disability. Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 2021000543 6 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, 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. 2021000543 7 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 January 5, 2021 Date