0120151355
08-24-2017
Alonso T.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonso T.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151355
Agency No. 200H06212014102283
DECISION
On March 2, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 29, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish that he was subjected to unlawful discrimination, and discriminatory harassment based on his race and in reprisal for prior EEO activity when: on March 25, 2014, he was advised by the Nurse Manager that he would be reassigned pending an Administrative Board of Investigation (AIB) after he reported a racially charged incident involving him and a family member of a patient to her attention.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant (GS-5) at the Agency's VA Medical Center facility in Mountain Home, Tennessee. The record reflects that on or around March 25, 2014, a patient's wife called Complainant a "sorry-ass black nigger" while Complainant was tending to the patient's room. According to Complainant, he told the Nurse Manager that he would not enter the patient's room and that she agreed with him. Complainant contends, and the record confirms, that he was moved to another section of the ward to prevent him from having contact with the person who made the comments after the incident.
On May 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against as articulated in the statement of "Issues Presented" above. 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 Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant through his representative, requests that the FAD be reversed and a new, impartial investigation of the matter be conducted. According to Complainant, the incident at issue was witnessed by the Ward Secretary but she was never interviewed as part of the investigation. Complainant maintains that because of this "lack of crucial evidence," the Agency's investigation was not designed to discover the facts but was intended to protect management.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and reprisal for prior EEO activity; we find that the Agency articulated a legitimate, non-discriminatory reasons for the alleged discriminatory actions, and the record is void of any evidence that any of the Agency's actions were motivated by discriminatory animus. It is clear that Complainant's work location was temporary moved after the incident in order to ensure that he did not have further contact with the family member of a patient, but the record is void of any evidence of a permanent change in Complainant's section assignment or shift schedule. In fact, Complainant was not scheduled to work on the day he alleges he was told he would be reassigned. It appears Complainant was simply moved to another unit to avoid having contact with the patient's wife. Additionally, the record reflects that the Nurse Manager spoke with the patient's family following the incident and advised them that this behavior was unacceptable and would not be tolerated. She also advised that if there were any additional incidents, the Agency's police would be notified.
Complainant acknowledged that he did not have any information that an AIB was ever convened against him. Moreover, he indicated that he did not believe that the Nurse Manger caused the Patient's wife to make the comment to him, although he felt that there was racial tension which existed in the workplace, which permitted behavior like this from patients and staff. He stated that management made no real effort to eliminate racial tensions in the environment, and that the lack of diversity in upper management contributed to the discriminatory environment. We find that these broad assertions by Complainant, without more, are insufficient to establish pretext. In sum, our review of the record confirms that the actions of Agency management in the instant matter were based on its determination of how best to effectively manage the workplace environment and to protect an employee from a racist family member of a patient. Complainant was unable to establish that the Agency's actions in this matter were motivated by discriminatory animus. At best, he makes a generalized assertion of Agency responsibility for the actions of the family member. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Harassment
With respect to any contention by Complainant's that he was subjected to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With respect to Complainant's assertions that the investigation was inadequate, we note that he was given the opportunity to have a hearing before an EEOC Administrative Judge, but he did not request a hearing. Had Complainant made such a request, he could have engaged in discovery that might have corrected the deficiencies he believes exists in the record. Moreover, the Agency's position appears to have been that the incident occurred as reported by Complainant;2 therefore, the Ward Secretary's statement may not have added significantly to the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate he was subject to discrimination as alleged; the Agency's final decision is AFFIRMED.
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 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. 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
_8/24/17_________________
Date
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.
2 We note in this regard, the fact that the Nurse Manager met with the patient's wife and told her that using racial slurs toward the staff would not be tolerated.
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