[Redacted], Solomon B.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020000835 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Solomon B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2020000835 Hearing No. 530-2018-00079X Agency No. 200H-0642-2017102611 DECISION On November 8, 2019, 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 October 3, 2019 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Physician in the Compensation and Pension Department (C&P) at the Agency’s VA Medical Center in Philadelphia, Pennsylvania. C&P physicians exam veterans for service-related injuries for compensation and pension disability benefits. On May 18, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to disparate treatment and hostile work environment harassment on the bases of race (Asian), national origin (Indian), color (Brown), age (69), and reprisal for prior protected EEO complaints) 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. 2020000835 2 1. On April 6, 2017, the Chief of Compensation and Pension (S1) ordered Complainant to enter authorized absence for two hours for April 11 when he was on-duty for his mandatory court proceedings ordered by an EEOC Administrative Judge, although there is no Agency policy to do so. 2. On April 8, 2017, Complainant received notification that his performance- based bonus was $8,100 instead of the scheduled performance-based bonus of $14,600. 3. On April 10, 2017, S1 falsely charged Complainant with professional misconduct when she issued him a formal counseling. 4. On April 12, 2017, Complainant received copies of his biannual renewal of clinical privileges for October 2014 and October 2016 signed by the Interim Chief of Staff and Director and learned that his clinical privileges had been removed for internal medicine in October 2014 and for hospital medicine and geriatric board certifications in October 2016, although the boards were active and he was not notified of the changes. 5. In July 2017, management relocated Complainant to an examination room with a foul smell of feces and infested with fleas but did not do the same to other C&P Physicians. 6. On July 13, 2017, when Complainant returned to duty a day early from an approved authorized absence, S1 transferred her clinic schedule to him for the day, which does not happen to other Physicians. 7. Effective July 31, 2017, management allotted Complainant insufficient time (30 minutes instead of one hour) to complete a Disability Benefits Questionnaire. 8. On August 10, 2017, Complainant learned that other C&P physicians were permitted to work in clinical settings to maintain their skills although Complainant was denied the same opportunity. 9. In August 2017, Complainant learned that management approved another C&P physician for leave without pay without a break-in-service for fellowship training but did not afford Complainant the same opportunity.2 The Agency accepted, for EEO investigation, incidents (2) through (4), (5) and (8) as discrete events of disparate treatment and (1) through (8) as a claim of harassment. During the EEO investigation, for (1), S1 stated that she thought entering authorized absences was Agency policy but, after Complainant expressed concern, she later learned it was not and verbally informed Complainant he did not have to submit. As to (2), S1 stated that the VAMC gave each department a set amount of money for bonuses and, with that money, there was no way to give each staff member 7.5 percent of their gross salary as a bonus. 2 Complainant amended his complaint in July 2017 to add incidents (5) through (8). He sought to further amend his complaint to add incident (9), but Complainant’s motion to amend to add (9) was denied by an EEOC Administrative Judge. 2020000835 3 S1 stated that she split the money amongst the eligible eight staff and $8,100 was the highest bonus. Regarding (3), S1 stated, on April 10, Complainant entered her office yelling and pointing his finger at her. She stated, when she asked him to leave, he went to the reception area where there were patients and complained about S1 to a receptionist. S1 stated that Complainant’s behavior was “unprofessional.” With regard to (4), S1 stated that she made a recommendation to a credentialing board to deny Complainant’s request for privileges beyond primary care because it was for duties he does not perform in his C&P position. She stated that some physicians have privileges authorized by other departments. S1 stated that privileges can only be given if they can be overseen by someone who performs those services. For (5), S1 stated that she learned through a third party of Complainant’s office concerns. S1 stated that she emailed Complainant and let him know that facilities would conduct ongoing inspections and he could move immediately, but Complainant never responded to her communications. S1 stated that Complainant continued to work out of that office space despite her offer and a colleague’s offer to switch offices. Regarding (6), S1 acknowledged reassigning four patients from her schedule so that she could address administrative issues and attend meetings. She stated that she has done the same when other physicians returned early from absence. For (7), S1 stated that examination times were standardized for between a half hour and six hours depending upon the issue. S1 stated that a physician would have to express a need for additional examination time to her, and she does not recall Complainant doing so. As to (8), S1 stated that another C&P physician asked to work in other VAMC departments and is extended privileges by those departments. S1 stated that the colleague works under the supervision and certification of those department chairs. Summarily, S1 stated that she did not discriminate against Complainant. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. However, on September 27, 2019, the assigned AJ issued a decision by summary judgment in favor of the Agency. The AJ concluded that Complainant failed to prove discriminatory motives. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 2020000835 4 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation 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, non-discriminatory reason for its actions. See Texas Department of Community 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, color, national origin, age, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated: (1) S1 asked Complainant to enter his authorized absences because she thought it was Agency policy but once S1 learned otherwise she no longer required him to do so; (2) VAMC determined departmental bonus budgets and $8,100 was the highest amount given to the eight staff eligible in C&P; (3) Complainant acted unprofessionally on April 10, when he entered S1’s office yelling and pointing his finger at her and then went to the reception area where there were patients and complained about S1 to a coworker; (4) Complainant needed primary care privileges in C&P and S1 recommended denial of his request for privileges beyond those because it was for duties he does not perform in his C&P position; (5) S1 learned of Complainant’s office concerns through a third party and then emailed him to let him know that facilities would conduct ongoing inspections and he could 2020000835 5 move immediately, but Complainant never responded to her communications; (6) S1 reassigned four patients from her schedule to Complainant’s so that she could address administrative issues and attend meetings and has done the same with other C&P physicians; (7) examination times were standardized depending upon the medical issue involved and, if additional time was needed, a physician would need to inform S1, but S1 does not recall Complainant doing so (8) another C&P physician asked to work in other VAMC departments and was extended privileges by those departments, which means he works under the supervision and certification of those department chairs. Summarily, S1 stated that she did not discriminate against Complainant. We find that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory motives. Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 Agency. 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). In other words, to prove his harassment 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, color, national origin, age, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Agency management was motivated by discriminatory or retaliatory animus. 2020000835 6 Even if we assume, individually and in total (including incident (9)), that the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that any of the Agency’s actions were motivated by discriminatory animus. 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, including those not specifically addressed herein, we AFFIRM the final agency decision 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. 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). 2020000835 7 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 August 9, 2021 Date