Haywood C.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20180120172709 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Haywood C.,1 Complainant, v. Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172709 Agency No. 200305042016102406 DECISION On July 27, 2017, 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 11, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 for the Agency as a Housekeeping Aide in Amarillo, Texas. On June 2, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him in reprisal for prior protected EEO activity. 2 Complainant raised the following claims: 1. on February 16, 2016, the Chief Housekeeping Officer, denied Complainant’s request for “yellow belt” training; 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 Complainant’s complaint was amended, and accepted, on July 5, 2016, July 14, 2016, and December 22, 2016. 0120172709 2 2. on March 14, 2016, Complainant’s immediate supervisor, the Housekeeping Aide Supervisor, yelled at Complainant in a threatening manner when he asked Complainant to move away from the supervisor’s desk; 3. on June 14, 2016, the Chief Housekeeping Officer issued Complainant a proposed seven (7) day suspension; 4. on July 14, 2016, the Chief Housekeeping Officer issued Complainant a seven (7) day suspension effective July 25-31, 2016; 5. between November 14, 2016 and December 16, 2016, the Night Supervisor asked a night environmental management service employee to report negative issues concerning Complainant’s work closet; and, 6. from November 21, 2016 through December 5, 2016, the Chief Housekeeping Officer suspended Complainant for 14 days. After an 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). finding no discrimination. The instant appeal followed. Complainant did not raise any new contentions on appeal, and he did not provide any arguments in support of his appeal. The investigative record reflects the following pertinent matters relating to the subject claims. Prior EEO Activity Complainant previously named the Housekeeping Aide Supervisor (previous EEO activity: yes), the Chief Housekeeping Officer (previous EEO activity: yes), and the Night Supervisor (previous EEO activity: yes) in EEO and/or the Occupational Safety and Health Administration (OSHA) complaints filed in 2016. The Housekeeping Aide Supervisor and the Chief Housekeeping Officer stated that both were aware of Complainant’s prior EEO activity. The Night Supervisor stated that he was previously unaware of Complainant’s previous EEO activity. Claim 1 On February 16, 2016, the Chief Housekeeping Officer denied Complainant’s request for a 2-day “yellow belt” training due to staff shortage. Complainant had made three previous requests for the training, but had not received it. 0120172709 3 The rationale which the Agency gave each time was shortage of staff. Complainant felt staff shortage was the Agency’s problem, and should not impede his ability to receive training. Complainant was unaware of any peers requesting, and receiving, approval to attend the training. Complainant believes he was denied the training because management wanted to prevent him from gaining experience which could enhance his career progression. The Chief Housekeeping Officer stated that Complainant was denied the training due to staff shortage, but was told that it could be reconsidered. She emphasized that it had nothing to do with Complainant’s prior EEO activity. She noted that no other similarly situated employee had requested the same training, or any other training that was beyond 1 hour in duration. Claim 2 On March 14, 2016, around 7:00 a.m, employees were gathering for assignment when the Housekeeping Aide Supervisor told Complainant to move so that he was not standing behind his (the supervisor’s desk). Complainant stated that the Housekeeping Aide Supervisor spoke to him in a threatening and belligerent manner. Complainant acknowledged that the room was crowded and noisy, but felt there was no need for the Housekeeping Aide Supervisor to yell at him. Complainant believes his prior EEO activity was a factor because prior to participating in complaints, the Housekeeping Aide Supervisor treated him with respect. The Housekeeping Aide Supervisor stated that on March 14, 2016, while getting ready to make assignments, Complainant came up and stood behind his desk. He asked Complainant to move, but denied yelling. When he asked him to come out from behind him, Complainant replied, "Do you mean me or everyone?”. He told Complainant "everyone". Complainant moved out from behind him and they went on with their daily work. He asserted that this was all done in normal tones. He denied treating Complainant any differently due to prior EEO activity. Claims 3 and 4 Complainant stated that on June 14, 2016, the Chief Housekeeping Officer issued him a proposed seven-day suspension, and on July 14, 2016, she issued him the actual seven-day suspension. The suspension was issued due to his allegedly disrespectful conduct towards the Housekeeping Aide Supervisor, making fun of a patient, and not following proper cleaning instructions. Complainant asserts that a hostile work environment was created due to the Housekeeping Aide Supervisor’s failure to clarify matters, and tendency to “nitpick” him. Complainant felt the suspension was “overkill.” Complainant identified two other aides who were both written up for other matters, but who were not suspended. Complainant determined he should have received no punishment, or at least progressive punishment. The Chief Housekeeping Officer testified that she was the proposing and deciding official for the seven-day suspension. Prior to issuing the action, she stated she received complaints regarding Complainant’s work performance. 0120172709 4 Based on her review of the complaints, she determined that Complainant failed to follow proper cleaning procedures, had careless workmanship, and failed to follow instructions. She noted that Complainant was provided a copy of all collected evidence and given an opportunity to defend himself at the proposed suspension meeting. The Chief Housekeeping Officer further testified that Complainant had a history of prior disciplinary actions which contributed to her decision to issue the suspension. She testified that Complainant’s prior EEO activity was not a factor. Claim 5 Complainant stated that between June 14 and July 14, 2016, the Night Supervisor asked a night shift employee (hereinafter referred to as “E1”) to spy on Complainant. E1 was allegedly told to look inside Complainant’s closet and report it for uncleanliness. Complainant asserts that this action resulted in Complainant being written up for a closet violation. He determined that his prior EEO activity was a factor because of the “nitpickiness” of the write-up. The Night Supervisor denied ever asking E1 to spy on Complainant. The Night Supervisor stated that he routinely reminded the evening shift to report closets which were dirty or improperly supplied. He noted that each shift was supposed to finish with a clean set up for the next crew. This action was exceptionally important for the minimally staffed night crew, as he did not want them taking valuable time cleaning closets which were already supposed to be stocked, organized, and cleaned. The Night Supervisor very seldom saw Complainant, and has never worked with him. E1 testified that at the beginning of the shift, the Night Supervisor reminded the night crew to report closets which were not clean and/or ill stocked. E1 testified that the Night Supervisor wanted to include those notes in his shift report. This was important because each new shift was not supposed to be wasting time cleaning and restocking closets prior to the start of the shift. E1 stated he was not told to spy on Complainant. E1 testified that at one point, he shared a cleaning closet with Complainant, and that it was being left dirty with dirty towels and mops. E1 stated that the closets could not be left dirty as it would be counted against them. Claim 6 Complainant testified that on or about November 23, 2016, the Chief Housekeeping Officer issued him a fourteen-day suspension for performance issues. The suspension was unacceptable to him because he thinks it was “overkill” and progressive disciplinary action wasn’t practiced. The Chief Housekeeping Officer stated that she was the proposing official for this disciplinary action. Prior to issuing the action to the employee, she received multiple new complaints, and validated the merit of the complaints. The complaints included charges of failure to follow proper cleaning procedures, failure to follow procedures, and absent without approved leave. Complainant was provided a copy of all evidence at the proposed suspension meeting. The evidence included procedures, meetings and documentation to demonstrate the basis of each charge. Some items were noted as repeated conduct issues from prior disciplinary actions. 0120172709 5 ANALYSIS AND FINDINGS 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 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 Construction 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 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). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant argued that on February 16, 2016, the Chief Housekeeping Officer denied his request for a 2-day “yellow belt” training due to staff shortage (claim 1). Complainant noted that he made numerous requests, but was continuously denied the opportunity due to staff shortage. Complainant felt that staff shortage was the Agency’s problem, and should not impede his ability to receive training. While Complainant might disagree with the Agency’s reasons, there is nothing in the record to demonstrate that the Agency’s reason was pretext for discrimination. Regarding the training denial, we note that as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. 0120172709 6 Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. Here, management’s desire to maintain proper staff numbers to ensure smooth operation is a matter of properly managing operational needs. Complainant also argued that the Agency was setting him up, potentially for termination. Regarding this matter, Complainant argued that he was wrongfully suspended numerous times (claims 3, 4, 6). He argued that he had previously received satisfactory performance evaluations, and it was clear the suspensions were fabricated to harass him. Complainant provided a rebuttal to the suspensions, which were reviewed and considered by Chief Housekeeping Officer. The Chief Housekeeping Officer ultimately determined that the suspensions were warranted. Despite Complainant’s contentions, the record supports the Chief Housekeeping Officer’s decision. For example, the record contains an affidavit from E1 who testified that he shared a cleaning closet with Complainant, and that it was being left dirty. After the Chief Housekeeping Officer upheld the suspension, Complainant went on to serve the suspension between July 25-31, 2016. Complainant was later suspended again starting on November 21, 2016, for similar infractions (claim 6). Complainant argued that the November 21, 2016 suspension was inappropriate and discriminatory as the Agency did not practice progressive discipline. However, the record clearly demonstrated that Complainant was suspended prior to the November 21, 2016 suspension, which demonstrated clear, progressive discipline. In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory animus. Complainant has not provided any evidence that suggests that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved. Hostile Work Environment With regard to Complainant’s hostile work environment claim, 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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. 0120172709 7 Complainant must also prove that the conduct was taken because of his protected bases – in this case, his prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant has cited various incidents that he found to be adverse or disruptive to him. For example, Complainant testified that he had concerns with the Housekeeping Aide Supervisor, and felt that his EEO activity had an impact upon the Housekeeping Aide Supervisor’s actions towards him. In claim 2, Complainant asserted that the Housekeeping Aide Supervisor unnecessarily yelled at him. Regarding claim 2, Complainant acknowledged that the room was crowded as employees were gathering for assignments, and the Housekeeping Aide Supervisor acknowledged that he asked Complainant to move out from behind his desk. Even if the Housekeeping Aide Supervisor spoke with a louder tone, it is not unreasonable to assume he did so if the room is crowded with individuals gathering for morning assignments. Moreover, even if the Housekeeping Aide Supervisor raised his voice, there’s no indication that he did so with a “threatening” tone. In another example of harassment, Complainant asserted that the Night Supervisor asked E1 to spy on him (claim 5). E1 testified that the Night Supervisor reminded the night crew to report closets that were not clean and/or ill stocked. E1 testified that this was important because each new shift was not supposed to be wasting time cleaning and restocking closets prior to the start of the shift. E1 testified that he shared a cleaning closet with Complainant, and that it was being left dirty. It was clear that there was not a targeted campaign against Complainant, but merely managers ensuring smooth transitions between day and night crews. Therefore, while E1 reported the dirty closet status to the Night Supervisor, it was not done so because he was ordered to spy on Complainant. A fair reading of the record reflects a contentious relationship between Complainant and Agency management. However, the Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The record simply does not show that the conduct at issue was based on animus towards Complainant’s prior EEO activity. Complainant has produced no evidence to establish that his prior EEO activity was a factor in any of these actions. The record simply does not show that the responsible Agency officials acted with discriminatory or retaliatory animus towards Complainant. Moreover, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 0120172709 8 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. 0120172709 9 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, Director Office of Federal Operations December 7, 2018 Date Copy with citationCopy as parenthetical citation