[Redacted], Thad P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021000339 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thad P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000339 Hearing No. 420-2015-00111X Agency No. 200I-0679-2014104356 DECISION On October 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 28, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Chaplain at the Agency’s VA Medical Center in Tuscaloosa, Alabama. On September 11, 2014, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), sex (male), disability, age (40), and in reprisal for prior protected EEO activity when, on July 2, 2014, he was removed from Agency employment. 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. 2021000339 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On April 27, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its April 27, 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. 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. 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). 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 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. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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). 2021000339 3 Complainant identified his disabilities as Post Traumatic Distress Disorder, bilateral foot drop, insomnia, anxiety, and depression. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. The undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. In 2013, Complainant was charged with misusing an Agency vehicle, improper use of leave, and being Absent Without Official Leave (AWOL). As a result, in November 2013, Agency management proposed removing Complainant from his position effective January 2014. However, before Complainant was removed from his position, he and the Agency entered into a Last Chance Agreement (LCA) on January 3, 2014. The January 3, 2014 LCA between Complainant and the Agency provides, in pertinent part, as follows: 1. This Agreement has been developed pursuant to the Agency’s proposal to removal Employee [Complainant] from employment with the VA by memorandum issued on October 18, 2013 for misuse of a government vehicle absent without leave (AWOL) (multiple specifications), and failure to follow proper leave requesting procedures (multiple specifications). 2. It is the decision of the Medical Center Director to sustain the charges as stated in the proposal memorandum. However, in lieu of effecting the removal, the Employee is being given an opportunity to enter into an Agreement whereby the Agency will agree to hold the implementation of the removal in abeyance for a period of two (2) years commencing on the effective date of this Agreement, subject to the following terms and conditions: 3. The Employee: a. The Employee fully admits to the charged conduct and seriousness of the conduct as described in the proposed removal memorandum. Exhibit 1. b. The Employee agrees to maintain satisfactory performance, conduct and attendance acceptable to the Agency during the term of this Agreement. c. The Employee agrees that if his conduct, performance, or attendance becomes unacceptable at any time during the term of this Agreement, the removal will be implemented. The Employee further agrees and understands that any action on his part related to his conduct, 2021000339 4 performance, or attendance that would support a proposal of any type of disciplinary action will result in in his immediate removal, without advance notice requirements from the Agency. During the summer of 2014, management officials determined that Complainant had violated the provision 3(c) of the LCA. Therefore, pursuant to the terms of the agreement, Complainant was removed from his position, effective July 2, 2014. The Medical Center Director (Director) (Caucasian, female, over 40) stated that she was the deciding official to remove Complainant from his Chaplain position effective July 2, 2014. The Director stated that her determination was based on the following assessment: In the [LCA] you [Complainant] agreed to maintain satisfactory performance, conduct, and attendance acceptable to the Agency during the term of the agreement which is two years from the date of signature. I have reviewed information provided by the Chief, Chaplain Service related to your documentation in the patient record. Based on my review, I have determined that you have on multiple occasions failed to document in accordance with policy and/or instructions. This includes multiple failures to timely complete spiritual assessments and chart notes, as well as evidence of cutting/pasting in the medical record. You have acknowledged that documentation deficiencies, but attributed them to computer issues. Documentation of the computer issues provided by you in the form of Help Desk ticket numbers does not support your explanation. Beyond his bare assertions, Complainant failed to produce adequate evidence to prove that his race, sex, disability, age or prior protected activity played any role in the matters at issue. Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination.2 2 On appeal, Complainant does not challenge the November 18, 2014 partial dismissal issued by the agency regarding one other claim (that he was discriminated against on the bases of race, sex, disability, age and prior protected activity when his challenge to and/or allegations that any events leading up to and including the proposed removal were discriminatory). Therefore, we have not addressed this issue in our decision. 2021000339 5 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). 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). 2021000339 6 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 June 3, 2021 Date