[Redacted], Travis H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021001819 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Travis H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001819 Hearing Nos. 471-2015-00040X 471-2015-00070X Agency Nos. 200J-0553-2014-102317 200J-0553-2014-103955 200J-0553-2014-104305 DECISION On November 30, 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 October 20, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Agency’s John D. Dingell Medical Center in Detroit, Michigan. On April 29, 2014, August 16, 2014, and September 10, 2014, Complainant filed three EEO complaints alleging that the Agency discriminated against him and subjected him to a hostile 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. 2021001819 2 work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, among other incidents, he was issued a 14-day suspension effective June 22, 2014 through July 5, 2014; on February 14, 2014, he was notified of his non- selection for the position of Laborer, WG-3502; on June 30, 2014, an Agency police officer informed Complainant that he could not be on Agency property unless he had an appointment, and ultimately, he was removed from federal service effective January 25, 2015.2 See Report of Investigation for Agency No. 200J-0553-2014-102317 (ROI 1) at 73-74; Report of Investigation for Agency Nos. 200J-0553-2014-103955 and 200J-0553-2014-104305 (ROI 2) Vol. 1 at 175- 77. Complainant’s removal letter stated that he was to be removed from service based on a series of incidents supporting two charges: (1) violent, intimidating, and disruptive behavior and (2) creating a hostile work environment. See Agency’s Brief on Appeal Ex. 4, [Complainant] v. Dep’t of Vet. Aff., MSPB Docket No. CH-0752-15-0286-I-1 (April 13, 2016) (MSPB Decision 1). At the conclusion of the investigations, the Agency provided Complainant with copies of the report of investigation and notices of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on the matters and his three EEO complaints were consolidated before the AJ. At a pre-hearing conference, the AJ agreed with the parties that the hearing should be held in abeyance pending the MSPB’s decision on Complainant’s challenge to his removal. On April 13, 2016, the MSPB issued an Initial Decision affirming Complainant’s removal, finding Complainant’s argument that his removal was in retaliation for prior protected activity was without merit. Specifically, the MSPB found that the evidence in the record and the testimony at the hearing supported the Agency’s determination that Complainant had created a hostile work environment due to his contentious behavior with his coworkers, including repeated menacing looks and noises, verbal threats, isolationist behavior, inappropriate language, and physically intimidating gestures. See MSPB Decision 1 at 18-19; 26-27. The MSPB further concluded that there was no evidence in the record to indicate a nexus between Complainant’s removal and his protected activity. See MSPB Decision 1 at 39. The AJ assigned to the case thereafter adopted the MSPB’s initial decision and issued an Order Entering Judgment in the Agency’s favor on September 30, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed a petition for review of the MSPB’s initial decision to the MSPB Board. Complainant also filed an appeal before the Commission of the Agency’s final order adopting the AJ’s finding, which was held in abeyance pending the MSPB’s decision on Complainant’s appeal. 2 The Agency dismissed Complainant’s non-selection claim as a discrete incident of disparate treatment pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely counselor contact because Complainant did not contact an EEO counselor about the incident until July 2014, five months after he received notice of his non-selection. See Report of Investigation (Agency Nos. 103955 and 104305) (ROI 2) Vol. 1 at 175-77. 2021001819 3 The MSPB affirmed its initial decision on July 21, 2022. See [Complainant] v. Dep’t of Vet. Aff., MSPB Docket No. 0752-15-0286-I-1 (July 21, 2022) (MSPB Decision 2). We now address Complainant’s appeal to the Commission of the Agency’s final order finding no discrimination. 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). At the outset, we note that the record does not indicate that the AJ provided notice to the parties of her intention to issue a decision without a hearing. The AJ’s decision noted that the parties discussed the case during the pre-hearing conference, but the conference appears to have focused on Complainant’s pending MSPB appeal. Commission regulations provide that an AJ may issue a decision without a hearing on his or her own initiative if the AJ determines that some or all of the facts are not in genuine dispute. Prior to doing so, the AJ must first give notice to the parties and provide them with an opportunity to respond in writing. The record in this matter does not show that the AJ gave the parties notice or the opportunity to respond. However, we find that the record is adequately developed, and Complainant has not shown that there are genuine issues of material fact in dispute.3 Therefore, we find that the AJ’s action was harmless and does not warrant a remand for a hearing. See Alejandro B. v. Soc. Sec. Admin., EEOC Appeal No. 2021002690 (Oct. 6, 2021). We further find, as a preliminary matter, that contrary to Complainant’s argument on appeal, the AJ did not exhibit any bias during the course of this case. In order to prevail on a claim of bias on the part of an AJ, Complainant must show that the AJ’s bias against him “so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that [he] did not receive a fair and impartial hearing.” See Catheryn P. v. U.S. Postal Serv., EEOC Appeal No. 2021002386 (Feb. 28, 2022). In this case, aside from Complainant’s bare assertion, Complainant has not specified any actions taken by the AJ to indicate bias nor is there any evidence to support Complainant’s claim. See Bobbitt v. Dep’t of Def., EEOC Appeal No. 0120081746 (May 20, 2008). Upon our review of the record, we agree with the AJ that MSPB Decision 1 accurately recounted the relevant material facts that were also in the record in the instant matter. We further agree with the AJ that the evidence in the record does not establish that the Agency subjected Complainant to either disparate treatment or a hostile work environment based on reprisal for prior protected activity. We find that Complainant did not establish a prima facie case of discrimination. 3 We also note that the MSPB conducted a hearing prior to issuing its Initial Decision. 2021001819 4 There is no evidence in the record that similarly-situated employees who had not engaged in protected EEO activity were treated differently for similar inappropriate behavior. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sept. 7, 2007). Furthermore, we note that the record is replete with evidence that Complainant had a very contentious relationship with his coworkers due to his constant and repeated insistence that all of his coworkers and supervisors were in essence conspiring against him by making false accusations about his behavior. Complainant’s coworkers and supervisors all agreed that Complainant did not get along with people and did not like to be supervised or directed in any way and constantly reported that people were harassing him. See, e.g., ROI 1 at 171-72; ROI 2 Vol. 1 at 321, 377, 385-86, 393, 404, 429, 466, 492. In addition, we take notice of the MSPB’s decision specifically noting that Complainant also displayed a combative attitude at the hearing before the MSPB AJ. See MSPB Initial Decision 1 at 24-25. We agree with the AJ that the is no evidence in the record to indicate that any of the Agency’s actions were based on retaliation for Complainant protected activity. The record shows that the Agency investigated Complainant’s reports alleging misconduct by his coworkers and supervisors and took the actions that it deemed to be appropriate. Moreover, the evidence in the record indicates that Complainant himself created a hostile work environment for his coworkers due to his frequent and repeated inappropriate language and conduct. See Zoey G. v. U.S. Postal Serv., EEOC Appeal No. 2021000938 (Feb. 16, 2022); Cross v. U.S. Postal Serv., EEOC Appeal No. 0120110281 (Aug. 29, 2012). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order finding that Complainant did not establish that he was subjected to discrimination as alleged. 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). 2021001819 5 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. 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. 2021001819 6 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 September 12, 2022 Date