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

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020003773 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003773 Agency Nos. 200H-0561-2019100447 and 200H-0561-2019105157 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 8, 2020 final decision concerning the two formal complaints which claimed unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Registered Nurse at the Agency’s VA Healthcare System in Lyons, New Jersey. Complainant filed two formal EEO complaints, which were consolidated by the Agency for processing: Complaint 1 - Agency No. 200H-0561-2019100447 Complainant claimed the Agency discriminated against him based on race (Caucasian), color (white), sex (male), and religion (Jewish) 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. 2020003773 2 1) On January 1, 2017, an identified Nurse Manager, who was Complainant’s direct supervisor, issued Complainant a performance counseling for failing to follow medical procedure; 2) On October 25, 2018, the Nurse Manager sarcastically said “good morning” when Complainant entered the meeting, described a former colleague as “handsome like Adam…he was handsome, white, and Jewish,” and joked that Complainant could be a liaison to a provider because he was “good with psych patients”; 3) On October 25, 2018, the Nurse Manager charged Complainant fifteen (15) minutes annual leave although other staff members were not charged for being tardy; 4) On January 29, 2019, the Nurse Manager denied Complainant’s use of a table to dispense medications although others were permitted to use the table; 5) On February 4, 2019, the Nurse Manager demanded Complainant sign a “non-VA approved” form; 6) On or about February 7, 2019, the Nurse Manager placed Complainant’s health information in a public area accessible to staff; 7) On or about March 12, 2019, the Nurse Manager denied Complainant’s request to take April 20, 2019 off to observe Passover; and 8) On April 13, 2019, Complainant became aware that the Nurse Manager split his weekend off and scheduled him to work on April 14, 2019, but scheduled him off April 13 and 15, 2019. All eights allegations were accepted for a hostile work environment analysis and allegations (3) and (6) were accepted as independently actionable disparate treatment claims. Complaint 2 - Agency No. 200H-0561-2019105157 The second complaint alleged that Complainant was unlawfully retaliated against for prior EEO activity when: 9) On August 2, 2019, Complainant was given a management-directed reassignment to a different unit; and 10) On September 11, 2019, Complainant learned that he was charged annual leave, in lieu of his request for sick leave, for the period beginning August 3, 2019 and continuing until October 15, 2019. 2020003773 3 After the investigation of the claims, 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. In accordance with Complainant’s request, the Agency issued a final decision on May 8, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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 a complainant to prevail, he or she 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). 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). 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, as here, 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 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). The evidence of record supports the Agency’s conclusion that responsible management provided statements articulating legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, were a pretext masking discrimination. With respect to Complainant’s allegation that he was charged fifteen (15) minutes annual leave after arriving late to work, the Nurse Manager stated that Complainant was late arriving at work that day. Moreover, Complainant acknowledged arriving late to work. 2020003773 4 The evidence also indicates that other employees were similarly required to request leave to cover periods of tardiness. As such, there is simply no evidence that Complainant’s race, color, sex or religion played any role in this matter. Regarding Complainant’s allegation that his health information was left in a public location, the unit had a practice of leaving light-duty assignments in the assignment binder. While the Agency concluded in its final decision that the practice “may not have been well-reasoned,” the evidence shows that light duty assignments of other employees had been kept in the same binder and the form was removed once Complainant raised the matter to management’s attention. In short, there is no evidence to support a finding that Complainant’s light-duty assignment was in the binder for a discriminatory reason related to his race, color, sex or religion. With regard to moving Complainant to another unit, the Nurse Manager explained that Complainant was reassigned to Unit 2B due to a co-worker filing a complaint that Complainant subjected the co-worker to a hostile work environment. She further stated that it was a standard procedure to separate co-workers while these matters are investigated. The Director of Clinical Services stated that she received a six-page complaint from a co-worker asserting Complainant made racially inappropriate comments. The Director asserted that it is the Agency’s practice to reassign employees pending an investigation when there is an allegation of this nature against them. In sum, Complainant has failed to prove, by a preponderance of the evidence, that retaliatory animus played a role in this decision. With respect to Complainant’s allegation that he was charged annual leave instead of sick leave on several days from August 3, 2019 until October 15, 2019, the Nurse Manager stated at the time Complainant was reassigned, he requested Family and Medical Leave Act (“FMLA”) leave until he was able to return to his unit. However, Complainant was charged annual leave on the date for which he submitted annual leave requests as those requests remained active in the Time and Attendance system. Furthermore, the Nurse Manager stated that when Complainant returned to work and indicated he wanted to use FMLA leave for his absence, his annual leave usage was converted to FMLA leave. Again, there is no evidence that retaliatory animus played any role in this matter. Harassment To prove his ongoing 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, sex or religion. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). 2020003773 5 As we have already determined that neither discrimination nor unlawful retaliation played any role in the events described in allegations (3), (6), (9) and (10), they do not serve to support Complainant’s additional claim on ongoing harassment/hostile work environment. With respect to Complainant’s allegation that he was subjected to harassment when he experienced issues with his leave requests, the Nurse Manager stated that she could not approve Complainant’s leave request for Passover because other employees had asked for leave before Complainant submitted his leave request, and she had to ensure the unit was properly staffed. The evidence gathered during the investigation reflects, however, that Complainant was provided a split weekend schedule for April 13-April 15, 2019, with an off day on April 13, 2019, but work days on April 14 and 15, 2019. This arrangement was explicitly made to provide Complainant with an off-day on Passover (April 20, 2019), which he requested. On appeal, the Agency asserts, and the record supports, that once Complainant indicated that his request for a day off on Passover was for “religious leave,” the request was granted. Therefore, to the extent that this matter is considered in the context of religious accommodation, the Agency granted Complainant’s request. The other matters, including a counseling, several isolated remarks, and being told that he could not use a table to dispense medications similarly provide no evidence that discriminatory factors played a role in the events. In sum, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, color, sex, or religion. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003773 6 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. 2020003773 7 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 November 15, 2021 Date