[Redacted], Simonne J., 1 Complainant,v.Denis McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020001363 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Simonne J.,1 Complainant, v. Denis McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001363 Hearing No. 410-2017-00260X Agency No. 200I-0742-2016103855 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 30, 2019, final order concerning an 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. At the time of events giving rise to this complaint, Complainant worked as a Training Specialist, GS-1712-11 at the Agency’s VA Health Eligibility Center (HEC) in Atlanta, Georgia. On July 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male)2, sexual orientation3, and in reprisal for prior EEO protected activity 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. 2 During the investigation, Complainant withdraw disability as a basis of discrimination and added sex and sexual orientation as bases of discrimination. 3 In Bostock v. Clayton County, 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). 2020001363 2 1. On or about February 5, 2012, a supervisor (S1) in the Eligibility and Enrollment Division made derogatory and insulting comments about Complainant; 2. During or around June 2012, a Senior Field Consultant (SFC) accused Complainant of threatening him and ignored his complaints of harassment and requests for staff support; 3. While Complainant was on sick leave on or about June 22, 2012, SFC sent Complainant harassing text messages asking when he was returning to work; 4. From January 2014 to March 2015, Complainant’s supervisor (S2) scheduled short notice dates for major nationwide training events for the enrollment system, which normally required six months to one year of advanced preparation to adequately host such an event, requiring Complainant to provide short notice suspense dates to the class participants; 5. From January 2014 to March 2015, S2 caused Complainant scheduling conflicts when she arranged training events on the same dates he was already scheduled to teach other events; 6. From January 2014 to March 2015, S2 created scheduling problems for Complainant when she arranged the National Training Program (HEC Academy) one week in advance rather than providing the normal six months to one year preparatory time; 7. On two occasions during the period of January 2014 to March 2015, S2 created scheduling problems for Complainant when she did not solicit support from other subject matter experts for the HEC Academy until the last week prior to the event; 8. During February 2014, June 2014, and March 2015, S2 ignored Complainant’s requests for staffing support; 9. After being left out of a meeting held on May 19, 2014, Complainant received “second hand” instructions, information, and updates from one of his peers; 10. On March 25, 2015, Complainant informed S2 he was resigning due to unrealistic deadlines and lack of staffing (constructive discharge); 11. On April 29, 2016, Complainant was notified that the tentative offer he received for the position of Training Specialist, GS-1712-11, under Vacancy Announcement No. OY-16-ILJ-1625842-BU, was rescinded; and 12. On June 4, 2016, Complainant received a copy of the completed Level 1 Reference Check Questionnaire, which indicated S2 made “false and negative comments” about him with respect to his tentative selection to the position of Training Specialist. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency.4 4 In ruling on the Agency's motion for summary judgment, the EEOC AJ addressed the merits of the constructive discharge claim. Typically, the Merit Systems Protection Board would have initial jurisdiction of a constructive discharge claim; however, under the circumstances of this case, we find it appropriate for the AJ to have addressed the constructive discharge claim as it 2020001363 3 The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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. 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. (as revised, August 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). In order 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Hostile Work Environment In order to establish a claim of hostile work environment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, Complainant alleged several incidents of what he claimed constituted a hostile work environment. Among the incidents, Complainant claimed that S1, who was not in Complainant’s chain of command, made an inappropriate comment referencing Complainant as being gay. S1 denied making the comment, but apologized that Complainant was offended. S1 was subsequently counseled for the incident. had become so firmly enmeshed in the EEO process that it better served the interests of administrative economy to do so. See Vargas v. U.S. Postal Serv., EEOC Appeal No. 0120102773 (Dec. 10, 2010); Cullors v. Dep't of Veterans Affairs, EEOC Appeal No. 01A41560 (June 27, 2006); Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915 and 01984977 (Nov. 5, 2001); Hose v. Dep't of Veterans Affairs, EEOC Appeal No. 0120093173 (Mar. 25, 2011). 2020001363 4 The HEC Deputy Director met with Complainant and then held a staff meeting the next day to discuss the Agency’s zero-tolerance policy regarding harassment. There is no evidence that any similar conduct recurred. Accordingly, the Commission finds that the Agency took prompt and effective corrective action in response to Complainant's report of harassment and that there is no basis for imputing liability to the employer. With regard to the remaining incidents, construing the evidence in the light most favorable to Complainant, the Commission finds that the totality of the incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. We note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. Further, to the extent Complainant is alleging disparate treatment with respect to his claims, he has not shown that the Agency's reasons for its actions were a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant has not established that the Agency's actions were in violation of Title VII. Finally, regarding Complainant’s constructive discharge claim, the Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, Complainant has not shown that the Agency's actions were motivated by discriminatory or retaliatory animus. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2020001363 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. 2020001363 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 May 19, 2021 Date