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

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020000275 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentin G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000275 Agency No. 2003-0846-2018104118 DECISION On October 10, 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 August 13, 2019, final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cemetery Caretaker, WG 5, at the Agency’s Fort Sam Houston National Cemetery in San Antonio, Texas. On August 18, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (injury to right rotator cuff, post-surgical residuals) and reprisal for prior protected EEO activity when: 1. from June 2017, Complainant’s supervisor (S1) and others subjected him to ongoing harassment; 2. in July and August 2017, S1 refused to complete the required paperwork for Complainant’s workers' compensation claim; 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. 2020000275 2 3. on March 7, 2018, S1 denied Complainant’s request for annual or sick leave; 4. on March 9, 2018, S1 charged Complainant with being AWOL from March 6 through March 9, 2018, and directed him not to return to work without a doctor's note; and 5. on September 19, 2018, Complainant became aware of his non-selection for the Automotive Mechanic position, under Announcement Number RP-18-ESM- 10271954-846-BU. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision (FAD) without a hearing, pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency first noted that Complainant did not engage in protected activity until May 9, 2018, when he contacted the EEO Counselor with regard to the instant complaint. Accordingly, the FAD found, Complainant did not state a valid claim of reprisal with regard to any actions that occurred prior to that date. With regard to claims 4 and 6, the FAD found that Agency officials articulated legitimate nondiscriminatory reasons for their actions. With regard to claim 4, the FAD found that S1 testified that Complainant had recently been cleared to return to duty by his physician but then requested sick leave due to arm pain despite having no more sick leave available. With regard to claim 6, the Selecting Official testified that he selected the highest ranked candidate with an overall score of 94/100 whereas Complainant had an overall score of 60/100. With regard to harassment, the FAD noted that Complainant did not show he was subjected to “unwelcome personal slurs or other denigrating or insulting verbal or physical conduct” based on his protected bases, nor did he “present any evidence the establish that management's actions were based on his protected classes.” The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). 2020000275 3 Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. With regard to claim 2, S1 denied refusing to complete the required paperwork for Complainant to file a worker’s compensation claim. With regard to claims 3 and 4, S1 averred that when Complainant texted him requesting sick leave, he texted and then called Complainant back and left a voicemail notifying him that Complainant was out of sick leave and that if he did not report in to work he would be counted as being AWOL. With regard to claim 5, the selecting official (SO: no claimed disability or prior protected activity) averred that he reviewed the interview panel score and selected the top-ranking applicant, and that the selectee scored 94 points while Complainant came third with 64 points. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to claim 2, Complainant disagrees with S1’s version of events and with regard to claims 3 and 4, Complainant contends that contrary to S1’s claim, he did have leave available. Even assuming arguendo that S1 refused to complete Complainant’s worker’s compensation paperwork or that S1 could have granted Complainant annual leave instead of charging him with being AWOL, Complainant has not shown that S1’s actions were motivated by discriminatory animus towards Complainant’s protected bases. With regard to claim 5, SO denied knowing of Complainant’s disability or prior protected activity at the time of the selection. 2020000275 4 We note that in non-selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Complainant believes he was well-qualified for the position in question but admitted that he did not know the qualifications of the selectee. As such, Complainant cannot show his qualifications were demonstrably superior. Nor has Complainant shown that SO harbored discriminatory animus towards Complainant’s protected bases. Hostile Work Environment We note initially that, to the extent that complainant is alleging that he was subjected to a hostile work environment when S1 refused to complete Complainant’s worker’s compensation paperwork, he was charged with being AWOL in March 206, and he was not selected for the position of Automotive Mechanic in September 2018, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: In July and August 2017, S1 threatened to charge him with being AWOL; on July 9, 2018, S1 stated, "I thought that case was closed. You still gonna have to do that," when Complainant notified him of his doctor's appointment on July 10, 2018; on July 10, and 12, 2018, S1 charged him with four hours of sick leave on each day rather than leave without pay as he requested; on August 27, 2018, he became aware S1 failed to notify and/or assist him with the processing of his CA-7 form; on September 21, 2018, S1 issued him a verbal counseling for being late and for failing to provide a "courtesy call" to supervisors; on September 25, 2018, he was issued a PIV card that did not grant him access to the VA Time & Attendance System; as of October 2, 2018, his request of September 17, 2018, for access to Employee Benefits Information System (EBIS), his eOPF, and correction of his SF50 have not been completed by Human Resources. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had 2020000275 5 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on his protected bases. Nor does Complainant describe actions that are sufficiently severe and/or pervasive to alter the terms and conditions of his employment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the FAD. 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. 2020000275 6 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. 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. 2020000275 7 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 17, 2021 Date