[Redacted], Brenton W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 6, 2023Appeal No. 2022000650 (E.E.O.C. Feb. 6, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000650 Hearing No. 450-2020-00296X Agency No. 2003-0549-2019105744 DECISION On November 11, 2021, 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 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Suicide Prevention Coordinator, GS-0185- GS-12, with the Agency’s North Texas Healthcare System in Dallas, Texas. Complainant has held this role since October 17, 2007. His first-level supervisor was Suicide Prevention Program Manager, and his second-line manager was the Associate Chief of Social Work Mental Health. On November 27, 2019, Complainant filed a formal complaint alleging the Agency subjected him to unlawful harassment in reprisal for engaging in prior protected EEO activity 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. 2022000650 2 1. On January 18, 2018, the Suicide Prevention Program Manager, also Complainant’s supervisor, denied Complainant’s leave request to attend the Governor’s challenge despite Complainant’s invitation to attend as the VISN Suicide Prevention Lead.2 2. From July 6, 2018, through September 24, 2018, the supervisor harassed Complainant when she criticized his documentation that he provided for her to use during a meeting; sent him an e-mail stating that he interrupts colleagues and tells them what to do; sent him an e-mail him informing him that he was not adhering to policy; informed him that the Associate Chief Social Work Mental Health was upset with him for filing his previous EEO complaint; sent him an e-mail demanding the CAT PRG I Flags be placed on charts according to policy; refused to use the electronic invitation that he spent approximately five hours working on, even though the director of the Agency’s Faith-Based Initiate Program chose to use it; did not initially respond to, and then denied, his request to be the Agency’s representative to the Veterans Suicide Film Festival; instructed him not to speak to panel members at the showing of the “S-Word” documentary; instructed him not to greet or talk to any participants attending the Suicide Prevention Symposium, and told him to leave the area where the participants were being greeted. 3. From August 16, 2019, through September 14, 2019, the Associate Chief Work Mental Health harassed Complainant when he checked the heat level in the Complainant’s office and stated, “Since it’s 89 degrees in your office, do you want to file an EEO complaint?;” removed Complainant from serving as a representative for the Agency’s Dallas Suicide Prevention event and did not allow him to be part of a group picture; and displayed rude behavior towards Complainant’s friend and colleague, who hosted the showing of the “S-Word” documentary. 4. On August 20, 2019, the supervisor denied Complainant’s request to attend ASIST training. 5. On August 22, 2019, the supervisor denied Complainant’s request for compensatory time to speak at the American Federal Suicide Program Survivor’s dinner. 6. On August 22, 2019, the supervisor denied Complainant’s request for leave to attend the Texas Suicide Prevention Conference, despite Complainant’s invitation to attend the VISN 17 Suicide Prevention Lead and being a Board member of the TSP counsel. 2 The record reflects that Complainant’s prior EEO activity consists of a complaint he filed against the Agency on January 20, 2018. The Administrative Judge who presided over the case determined that because claim 1 allegedly occurred on January 18, 2018, two days before his EEO filing, it would not be analyzed in his decision. The record supports this determination and we therefore will not further address claim 1. 2022000650 3 7. On October 15, 2019, the supervisor rated the Complainant “Excellent” on his performance appraisal and rated him low on his communication rating, causing Complainant not to receive a performance bonus. 8. On October 21, 2019, the supervisor denied Complainant compensatory time to attend the American Foundation of Suicide Prevention Survivor’s Conference. 9. On March 10, 2020, the VISN 17 Chief of Mental Health, sent Complainant an e-mail asking that he step down as the VISN 17 Suicide Prevention Coordinator Lead, pursuant to the Associate Chief Social Work Mental Health, pursuant to the Associate Chief of Social Work Mental Health’s request. 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. On July 26, 2021, the AJ issued a notice informing the parties that she had determined that the case could be appropriate for summary judgment. The Agency and Complainant filed responses to the notice in a timely manner. On October 6, 2021, the AJ issued a decision by summary judgment in favor of the Agency. On or about November 11, 2021, the Agency issued a final order implementing the AJ’s decision, which concluded no unlawful retaliation had been established. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when they find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the nonmoving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. To prove his discriminatory harassment/hostile work environment 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 prior engagement in protected activity. 2022000650 4 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). Here, the AJ provided a thorough analysis reflecting a conclusion that there was no evidence that Complainant’s retaliatory animus played any role whatsoever in the assignment of work, supervisory instructions or Complainant’s workload. The AJ noted further that an employer clearly has discretion to determine how best to manage its operations. We find no error in the AJ’s findings. Regarding claim 2, the AJ noted, and the record so supports, that the events addressed slights allegedly inflicted on Complainant approximately six to eight months after he filed his EEO complaint. The AJ noted the conduct that Complainant describes as retaliatory cannot be characterized as “adverse.” The AJ found that although the supervisor may have taken issue with his documents, his interaction with colleagues, refused to use his electronic invitation, denied his request to attend a film festival, and directed him not to speak to attendees of a symposium, there is no evidence that any of these actions had a detrimental impact on any term or conditions of Complainant’s employment. Regarding claim 3, the AJ acknowledged that Complainant alleged that his second level supervisor harassed him from August through September 2019, when he made a “cheeky” comment about the temperature in Complainant’s office, denied him the opportunity to attend a suicide prevention program, did not allow him to be part of a group photograph, and made rude comments about Complainant’s friend who hosted a showing of a documentary. The AJ stated that apart from his bare assertions, Complainant cites no factors to support his contentions that his January 2018 EEO complaint led to the conduct that he claims took place in this claim. Regarding claims 4, 5, 6, and 8, the AJ found these matters were similar in nature and analyzed them collectively. Complainant claimed that between August 20, 2019, and October 21, 2019, the supervisor denied him the opportunity to attend training and three suicide prevention conferences. Complainant concedes that his training request was denied because of an increase in the number of employees interested in attending the session. Although the alleged harassment took place two years after Complainant filed his EEO complaint, the AJ found that Complainant unsuccessfully insisted, without citing facts, that his EEO filing is connected to the supervisor’s behavior. The AJ found that claim 7 focuses on Complainant’s allegation that the supervisor unfairly rated his work performance as “Excellent” on his fiscal year (FY) 2019 appraisal. The record shows that Complainant was rated as “Fully Successful” and not “Excellent” during FY 2019. Complainant claimed he received this rating on October 15, 2019, largely because of his communication style, which was described as needing improvement because of his penchant for interrupting colleagues, a charge that Complainant did not deny. 2022000650 5 The AJ found that while Complainant asserted that he should have received a higher performance rating, he never describes how his work deserved a more favorable evaluation. Finally, Complainant’s claim 9 centers on his allegation that the Chief of Mental Health (Chief) harassed him when he sent Complainant an e-mail on March 10, 2020, asking him to step down as a suicide prevention coordinator lead. The AJ found, however, that Complainant was unable to link his protected activity to the Chief’s actions. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the responsible management officials were motivated by retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that he 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. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no unlawful retaliation was established as alleged. 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. 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. 2022000650 6 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. 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. 2022000650 7 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 February 6, 2023 Date Copy with citationCopy as parenthetical citation