Adam D,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2019005976 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam D,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019005976 Hearing No. 460-2018-00211X Agency No. 200305802016102151 DECISION On August 22, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 23, 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. At the time of events giving rise to this complaint, Complainant worked as a Domiciliary Chief, Community Resource and Referral Program Director at the Agency’s Mental Health Case Line facility in Houston, Texas. On February 11, 2016, Complainant made EEO contact. On March 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex and reprisal for prior protected EEO activity under Title VII. The complaint, as amended, in chronological order, alleged discrimination, when: 1. On December 18, 2015, the Executive for the Mental Health Care Line (RMO1) issued the Complainant a “Stay Away Letter,” which ordered the Complainant to stay away from a named employee. 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. 2019005976 2 2. On June 30, 2015, RMO1 rated the Complainant fully successful on a “special rating,” even though he was rated on different criteria / performance measures than his similarly situated colleagues. 3. On January 6, 2016, the Mental Health Executive (RMO1) ordered the Homeless Program Director / Supervisory Social Worker (RMO2) to change the Complainant’s annual performance rating to “fully successful” after the Supervisory Social Worker had already rated him “outstanding”. 4. On January 13, 2016, RMO1 initiated a fact-finding investigation into whether the Complainant subjected their staff to harassment. 5. On February 5, 2016, RMO2 issued the Complainant a “Stay Away Letter,” which ordered him to stay away from the Deputy Director of the Homeless Program. 6. On or around February 10, 2016, RMO1 reassigned the Complainant from his position as Domiciliary Chief / Community Resources and Referral Program Director to the position of Staff Mental Health Social Worker, due to allegations that he created a hostile work environment for staff. 7. On February 11, 2016, RMO1 initiated a fact-finding investigation into whether the Complainant threatened a VA Community Partner, and whether he acted inappropriately when he hugged and rubbed the back of the Deputy Director of the Homeless Program. 8. On September 29, 2016, RMO1 threatened to remove the Complainant from federal service if he did not meet with her at that very moment to discuss the results of the April 2016 fact-finding that was concluded in May 2016. 9. Between March 2016 and October 14, 2016, RMO1 continued to refuse to sign off on the Complainant’s January 6, 2016 annual performance appraisal that she ordered to be downgraded to a fully successful. 10. In April 2016, the Complainant learned that RMO1 had placed the Complainant’s February 10, 2016, reassignment to another position, based on allegations that he created a hostile work environment, on a shared drive which was viewed by individuals who did not have a need to know. 11. On October 4, 2016, RMO1 ordered a fact-finding inquiry regarding an allegation that the Complainant used poor judgement with a patient. 12. On September 30, 2016, RMO1 issued the Complainant a letter of reprimand for conduct unbecoming of a supervisor. 13. On May 12, 2017, the Complainant learned from RMO1 that a fact-finding investigation would be conducted “to investigate continued false allegations” made by a named employee, which related to a Report of Contact against the Complainant. 14. On June 15, 2017, RMO1 falsely accused the Complainant of misusing Community Resource and Referral Center Program staffing resources. 15. On October 23, 2017, the Complainant learned that he received a “Fully Successful” rating on his 2017 Performance Appraisal. 16. October 20, 2017, the Complainant learned that RMO1 modified the Complainant’s 2015 and 2016 Performance Appraisals, lowering them from “Outstanding” to “Fully Successful.” 2019005976 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment 2019005976 4 Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019005976 5 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 29, 2020 Date