Frank R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 11, 2020

2019005554 (E.E.O.C. Sep. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frank R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019005554 Agency No. 200P-0692-2018106494 DECISION On August 1, 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 July 8, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Addiction Therapist, GS-09, at the Agency’s Southern Oregon Rehabilitation Center and Clinic in White City, Oregon. On October 9, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to disparate treatment and a hostile work environment on the bases of race (Black), sex (male), age, and reprisal for prior protected EEO activity when: 1. From April 13, 2018 to July 21, 2018, Human Resources coded Complainant as a probationary employee and failed to correctly code him as a permanent/status 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. 2019005554 2 2. From April 15, 2018 to July 21, 2018, Complainant was not properly credited with 109 hours of sick leave; 3. On April 20, 2018, the facility failed to pay Complainant for six weeks after he started work; 4. On July 21, 2018, Complainant was terminated during what the facility claimed was a probationary period; and 5. On June 26, 2018, Complainant’s first-line supervisor (Supervisor1) attempted to coerce him to relinquish his Weingarten rights and threatened to fire him if he did not do so.2 On December 26, 2018, the Agency issued a notice to Complainant indicating that events (1) through (4) raised independently actionable claims. However, it dismissed event (3) as an independent claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to comply with regulatory time limits. It accepted events (1), (2), and (4) as independently actionable claims and accepted the harassment claim, as including all five of the events. The Agency conducted an investigation which produced the following pertinent facts: Complainant identified the instant complaint as his prior EEO activity relating to his alleged basis of reprisal. Complainant’s personnel records show that he had worked as an Addiction Therapist, GS-09, for several years at the Agency’s hospital in Dallas, Texas. On January 11, 2018, the Agency issued a letter providing him a tentative offer of employment for the Addiction Therapist, GS-09, position at the Agency’s facility in White City, Oregon. The tentative offer indicates the position will be a permanent, fulltime excepted service appointment. Upon receipt of a firm offer, Complainant accepted and was appointed to the position on March 18, 2018. However, a Notification of Personnel Action (SF-50) indicates that Complainant was hired at the Agency’s White City, Oregon facility as a career-conditional employee. Complainant attested that he had previously worked for the Agency at its hospitals in Hampton, Virginia and Dallas, Texas, for a total of six years and he completed an initial probationary period while working at the Agency’s facility in Hampton. He alleged that a Human Resources Specialist (HR Specialist) was negligent in auditing Complainant’s records, failing to give him credit for Federal time served, inaccurately coding him as a career-conditional candidate, failing to reinstate his time and grade, and refusing to correct the SF-50 accordingly. HR Specialist attested that Complainant was mistakenly hired as a probationary employee and it was later discovered that he had completed a probationary period at a former Agency location. Complainant’s experience was identified on his SF-50 and his resume, but this information was not noticed by HR until they received his records from the Dallas facility. HR Specialist further 2 Weingarten rights guarantee an employee the right to union representation during certain pre- disciplinary investigatory interviews. 2019005554 3 explained that HR had been working with the Dallas facility to correct Complainant’s records, but since Complainant had been away from Federal employment for three years, the Dallas facility had to code him back into the system, which is a lengthy process. HR Specialist attested that, by the time the White City facility received Complainant’s records, he had already been terminated. HR Specialist explained that, when HR realized that Complainant had tenure, they contacted the Agency’s General Counsel, who directed that Complainant be brought back to work. HR Specialist reached out to Complainant and notified him of the error. The Agency offered to return Complainant to his position, removing the erroneous termination, and giving him all back leave and pay. HR Specialist stated that Complainant was the victim of an HR error. Complainant alleged that, from April 15, 2018 to July 21, 2018, he was not properly credited with 109 hours of sick time. He alleged that he contacted Supervisor1 and his second-level supervisor (Supervisor2) about this and they threatened to fire him if he complained to HR about the lost sick leave. Supervisor2 attested that Complainant asked her about his sick leave but she directed him to HR for assistance. Supervisor2 denied telling him that he would be fired if he contacted HR. HR Specialist attested that Defense Finance and Accounting Service (DFAS) is responsible for restoring leave. He explained that, when the Agency makes a request to DFAS, they have 30 days to respond. The Lead Addiction Therapist (RMO1) attested that Complainant asked him to intervene on his behalf with HR and, when he called HR, he was informed that they were working on the issue. Complainant attested that, after he started working for the Agency, he was not paid for six weeks. He alleged the Agency’s Dallas facility’s HR refused to send pay and personnel records to the White City facility, causing him to not be paid. HR Specialist attested that the White City facility requested Complainant’s records from his prior facility and DFAS. Complainant received full back pay once the White City facility received the document. A July 18, 2018 letter from HR Specialist to Complainant indicates that Complainant was terminated during his probationary/trial period, effective July 21, 2018, based on the recommendation from the Chief of Mental Health Service, for failure to qualify during the trial period. It further indicates that Complainant’s termination was due to Complainant’s unacceptable performance in his role as an Addiction Therapist. HR Specialist attested that Supervisor2 sent a list of concerns regarding Complainant’s performance to HR and requested that he be removed. HR Specialist explained that, because HR believed that Complainant was on probation and Supervisor2 recommended removal, Complainant was terminated. He further explained that Complainant’s removal was based on performance but 2019005554 4 was an error. The Agency worked to assist Complainant in getting his job back and reinstating his leave. Supervisor2 attested that she worked closely with RMO1 who trained, coached, and observed competencies of newly hired employees. RMO1 noted concerns with Complainant’s group facilitation skills and Supervisor2 and RMO1 developed a plan to further assess Complainant’s job performance and provide additional coaching. Supervisor2 and RMO1 met with Complainant several times, providing both verbal and written guidelines designed to help Complainant succeed. Eventually, when it seemed apparent that Complainant was not able or willing to follow the guidelines, Supervisor2 recommended that he be terminated during his probationary period. Complainant alleged that, while Supervisor2 and RMO1 met with him under the guise of coaching and training, it was really to coerce him to sign a statement to relinquish his rights to union representation. Complainant alleged that, when he refused to sign the statement, Supervisor2 and RMO1 said they would fire him. Complainant also alleged that Supervisor1 and Supervisor2 said that, because Complainant is an African-American probationary employee, they can do whatever they want, including termination. Supervisor2 attested that the meeting was an attempt to get Complainant to “stay on script” regarding the training he had received, and this was the third such meeting. Supervisor2 attested that she believed there was a chance the meting could result in discipline, as Complainant had not made progress. She further explained that she informed Complainant that had the right to union representation at the meeting and the meeting could be rescheduled, or he had the right to waive his rights and proceed with the meeting. Supervisor2 stated that Complainant said he never wanted to waive any rights and he was worried that by not signing it, he would be perceived negatively. Supervisor2 attested that she assured him that was no consequence for not signing it and they would be happy to reschedule it when he had union representation. Supervisor2 denied Complainant’s allegations about management doing what they wanted because of Complainant’s race and probationary status. RMO1 attested that he was at the meeting and Complainant was offered his Weingarten rights, but he expressed confusion about it. RMO1 confirmed that Complainant was told that if he wanted union representation, the meeting would be canceled and rescheduled. Complainant asked for an explanation of his Weingarten rights and they explained them to him. Complainant indicated that he wanted a union representative and the meeting was canceled. 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 (AJ). 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. The instant appeal followed. On appeal, Complainant reiterates and clarifies contentions and asserts that he continues to experience retaliation, harassment, financial retaliation, and 2019005554 5 discrimination from the Agency.3 In response, the Agency argues that its final decision thoroughly and accurately details the relevant facts and applies the appropriate legal standards to those facts. It also asserts that Complainant failed to meet his burden of proof with respect to his complaint. ANALYSIS AND FINDINGS 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”). Dismissed Claim EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.105.107(1)(2) provides, in part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits in § 1614.105. The Agency dismissed Complainant’s allegation that, on April 20, 2018, the Agency failed to pay him for six weeks after he started work, for untimely contact with an EEO Counselor. The record shows that Complainant initially contacted an EEO Counselor with respect to the instant complaint on September 5, 2018, which is more than 45 days after April 20, 2018. Therefore, we find dismissal of this claim on this basis was proper. However, we note that this alleged event is still relevant to Complainant’s harassment claim. Harassment Claim Complainant has alleged the Agency subjected him to harassment, noting several alleged instances. To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or 3 To the extent Complainant raises new allegations on appeal, we note that these are not currently before the Commission. 2019005554 6 condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). In other words, to prove his 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, sex, age, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s harassment allegations can generally be described as relating to managerial or administrative decisions and actions, such as classifying Complainant as a career or probationary employee, timely payroll payments, crediting leave, and termination, or being spoken to in a manner Complainant perceived as threatening as to his employment. With respect to his disagreements with these decisions and actions, without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We note that the record establishes that the Agency committed errors and/or delays in Complainant’s onboarding, including things related to crediting leave, payroll processing, and employee classification. However, the record does not support Complainant’s allegation that the Agency committed these acts because of Complainant’s race, sex, age, or prior EEO activity. Additionally, with respect to the conversation regarding Complainant’s performance during which he was advised as to his right to union representation and alleged threats of termination, we find these allegations are also insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Beyond his bare assertions, there is no evidence to support the allegation that Complainant’s race, gender, sex, or prior EEO activity played any role in the incidents at issue. Therefore, we find that Complainant’s claim of discriminatory harassment is not supported by the record. 2019005554 7 Disparate Treatment Claims Complainant’s allegations in events (1), (2), and (4) raise independent claims of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant was erroneously coded as a probationary employee because his former agency failed to provide Complainant’s personnel records showing his prior service and status and his leave was not credited because DFAS was slow to respond to the Agency’s request regarding restoring Complainant’s leave. Regarding Complainant’s termination, the Agency explained that Complainant was terminated for unacceptable performance in his role as an Addiction Therapist. Although Complainant alleges that he was discriminated against based on her race, age, sex, and/or prior EEO activity, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to any of these claims. CONCLUSION 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 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. 2019005554 8 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. 2019005554 9 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 11, 2020 Date