[Redacted], Scotty F., 1 Complainant,v.Dennis R. McDonough, Secretary Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2020003933 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scotty F.,1 Complainant, v. Dennis R. McDonough, Secretary Department of Veterans Affairs, Agency. Appeal No. 2020003933 Agency No. 200P-0612-2019105094 DECISION On June 26, 2020, 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 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-0679-05, at the Agency’s Northern California Healthcare System in Yuba City, California. On September 17, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American) and age (58) when: 1. On July 22, 2019, Complainant was issued a Letter of Counseling; 2. On July 29, 2019, Complainant was detailed to the Chico Community Based Out- Patient Clinic (CBOC); and 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. 2020003933 2 3. On September 23, 2019, Complainant was terminated during his probationary period.2 Complainant was appointed to Medical Support Assistant position on July 7, 2019. At the time of his appointment, he was informed that he would be subject to a probationary period during his first year. He reported to the Medical Support assistant Supervisor (Hispanic, age 52), who served as his first-line supervisor (S1). Complainant’s second-line supervisor was the Supervisory Administrative Assistant (Caucasian, age 38) (S2). His third-line supervisor was the Chief of Primary Care (Caucasian, age 57) (Chief). Claim 1 - Letter of Counseling Management received reports that Complainant was engaging in inappropriate behavior (leering and ogling women, trying to touch women, and asking sexually explicit questions). A co-worker (Licensed Vocational Nurse) reported three separate incidents, accusing Complainant of engaging in inappropriate conduct. In addition, a Medical Support Assistant also wrote to S2 regarding Complainant’s behavior. One report said Complainant was “getting close to her, attempting to make physical contact” and that he “kept trying to touch her.” Report of Investigation (ROI), Tab 7-12. These reports were also confirmed by a coworker who was of the same race as Complainant. On July 29, 2019, a female coworker filed a police report regarding Complainant’s conduct. On July 29, 2019, S1 met with Complainant to let him know of the allegations and to review with him the Agency’s harassment policy “due to multiple allegations of harassment that were brought against him.” ROI, Tab 7-2, p. 68. No Letter of Counseling was actually issued. Claim 2 - Detailed to a Different Facility S1 averred Complainant was not reassigned to a detail, but a decision was made to temporarily move Complainant to a different location for training, while the claims against him were being investigated. Claim 3 - Termination during Probationary Period The Chief made the decision to terminate Complainant’s employment during the probationary period. The Chief averred she recommended Complainant’s termination due to his conduct. The Chief maintained that she acted on multiple accounts and written statements that Complainant engaged in multiple instances of inappropriate conduct (ogling and leering) regarding female employees and patients at the Yuba City facility. 2 Complainant raised an additional claim regarding three women accusing him of sexual harassment. The Agency dismissed this claim for failure to state a claim. Complainant raised no challenges to the dismissal of this claim and the Commission can find no basis to disturb the Agency’s decision on that matter. 2020003933 3 On September 23, 2019, S1 was asked by his first line supervisor (S2) to present Complainant with the termination letter. Complainant reviewed the letter and signed the document. ROI, p. 68, 145. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends “the facts are wrong,” the facility is corrupt, that he has no interest in “chasing skirts” and that some of the accusations and charges were for days before he started working for the VA or was in Yuba City. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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”). Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 2020003933 4 Assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1 and 2, as discussed above, the record showed the Agency acted based on multiple reports that Complainant engaged in inappropriate conduct at the workplace. Consequently, Complainant was counseled and temporarily assigned to a different location. Similarly, the record shows that Complainant was terminated during his probationary period for the same reasons, that he engaged in inappropriate conduct. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry that burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory motivation. As a result, the Commission finds that Complainant was not subjected to the discrimination as alleged. Hostile Work Environment Finally, to the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003933 5 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). 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. 2020003933 6 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 25, 2021 Date