[Redacted], Silas T., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 14, 2021Appeal No. 2021001025 (E.E.O.C. Jan. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Silas T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001025 Hearing No. 510-2019-00193X Agency No. 200I-0573-2018104987 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 November 4, 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Physician, GS-15 in Lake City, Florida. On October 10, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on race (African-American) and in reprisal for prior protected EEO activity (prior EEO cases). By letter dated November 8, 2018, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 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. 2021001025 2 Whether Complainant was discriminated against based on race and reprisal when from June 26, 2018 to November 6, 2018, he was subjected to a hostile work environment regarding the following independently actionable claims: 1. On June 26, 2018, Chief, Surgical Services (CSS) issued Complainant a verbal and written counseling for creating a hostile work environment and delaying a patients’ appointment without notifying nursing personnel. 2. On June 29, 2018, Complainant was notified that he would be charged Leave Without Pay (LWOP) for June 11, and 12, 2018. 3. On November 6, 2018, [CSS] denied Complainant access/attendance to the online Advanced Cardiac Life Support course. After an 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 6, 2020, motion for a decision without a hearing and issued a decision without a hearing on October 30, 2020. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its action which Complainant failed to establish was pretext for discrimination and/or retaliation. Regarding claim (1), receiving counseling, the AJ found that Complainant entered into a patient record an instruction regarding contacting him on his cell phone. AJ Decision at 7. The AJ noted that the Nurse Manager emailed Complainant regarding this and advised that this action was inappropriate to include it in a patient record. Id. The AJ further found regarding claim (1): [t]here is further no dispute that multiple other nurses complained about Complainant’s behavior as angry, disruptive, loud, hostile and making other employees feel uncomfortable. Complainant disagrees with all of these nurses’ characterizations, but he does not dispute that all of these nurses complained about his behavior. There is nothing to indicate that management counseling Complainant about his behavior in the face of so many reports about him is improper, discriminatory or retaliatory in nature. AJ Decision at 7. Regarding claim (2), the leave entries, the AJ found that the record was devoid of evidence indicating that the Agency’s actions were based on his protected classes. Regarding claim (3), Complainant being denied attendance at a training, the AJ found that the Agency asserted that Complainant’s specialty, Urology, did not require taking the course in question. AJ Decision at 7. The AJ found that Complainant failed to establish that the Agency’s articulated reasons for its action were pretext for discrimination. AJ Decision at 8. The AJ further found that Complainant failed to establish that he was subjected to a hostile work environment. 2021001025 3 The Agency issued a final order dated November 4, 2020 implementing the AJ’s decision. The instant appeal followed. On appeal, Complainant requests that his complaint be remanded for a hearing. Complainant asserts that the AJ did not provide notice to Complainant about his intent to issue a decision without a hearing. Complainant asserts the AJ did not give consideration to his arguments contesting the Agency’s Motion for Summary Judgment and that credibility issues exist. Complainant also asserts that the AJ improperly denied his Motion to Compel. In response, the Agency requests that we affirm its final action because the AJ’s decision was proper. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2021001025 4 As an initial matter, we find that prior to the AJ issuing a decision without a hearing, Complainant had proper notice and an opportunity to respond. The record reflects that the Agency emailed Complainant a copy of the Agency’s Motion for Summary Judgment (Motion). Complainant responded to the Agency’s Motion on April 18, 2020. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment Analysis A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 the agency has articulated a legitimate, nondiscriminatory reason for the personnel action 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), receiving counseling, the record contains an affidavit from CCS, Complainant’s second-level supervisor. Therein, CSS asserts that he provided Complainant with counseling because he received several reports of contact involving Complainant. Report of Investigation (ROI) at 112. 2021001025 5 The record reflects that nursing staff/personnel filed several Reports of Contact pertaining to concerns regarding Complainant’s behavior. Complainant failed to establish pretext with respect to this matter. ROI at 181, 581, 604-605, 652. The record is devoid of evidence (other than Complainant’s speculation) that these Reports of Contact from staff were filed based on Complainant’s protected classes. Regarding claim (2), we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains the EEO Counselor’s Report (Report). Therein, the Report provides that Complainant is alleging that he applied for leave for June 5-June 12, 2018. ROI at 27. The record contains an email from an Administrative Officer/Program Coordinator (AO) to Complainant dated June 25, 2018. Therein, AO stated “[t]he annual leave that was entered previously crossed [pay periods]. This was included in your training. The first time you put the request in was right after the conversion. We were all learning the program and a lot of people were putting them in wrong. The LWOP was placed because then you would have been paid for all the other days…A corrected time card can be done …if the leave request is entered early.” The record reflects that AO previously sent an email to Complainant on June 22, 2018. ROI at 677. Therein, AO advised Complainant that a corrected leave request needed to be entered or Complainant would be charged LWOP. ROI at 677. Complainant failed to establish pretext regarding this matter. While Complainant may have preferred that a staff member correctly enter his leave request for him or that the AO had been more helpful, this is insufficient to establish pretext. Regarding claim (3), denial of a training course, the Agency articulated legitimate, nondiscriminatory reasons for its actions. CSS, in his affidavit, states that it was explained to Complainant that he was not required to have the training in question under VA Directive 1177. ROI at 115. While Complainant may have disagreed with this interpretation of VA Directive 1177, we find that this is insufficient to establish pretext. Finally, regarding Complainant’s assertion that the AJ improperly denied Complainant’s Motion to Compel, we disagree. The AJ’s February 4, 2020 Order on a Motion to Compel properly found that Complainant’s discovery requests were irrelevant and overly broad. Harassment Analysis The AJ properly found that Complainant failed to establish a prima facie case of harassment. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021001025 6 Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). As set forth above, in the section entitled “Disparate Treatment Analysis”, we found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. Thus, we find that Complainant failed to establish that the alleged harassment was based on his protected classes. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final action implementing the AJ’s decision without a hearing 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. 2021001025 7 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. 2021001025 8 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 14, 2021 Date Copy with citationCopy as parenthetical citation