[Redacted], Darren M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 2023Appeal No. 2022000710 (E.E.O.C. Feb. 7, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darren M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000710 Hearing No. 550-2020-00099X Agency No. 200P-0531-2019102662 DECISION On November 21, 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 November 1, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Technician/Phlebotomist, GS-4, at the Agency’s Medical Center in Boise, Idaho. On May 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Filipino/Puerto-Rican American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From June 2018, Complainant has been subjected to harassment; and 2. On June 8, 2018, Complainant was not selected to be Lead Phlebotomist. 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. 2022000710 2 At the conclusion of its investigation into the complaint, 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). Complainant timely requested a hearing. The Agency moved for a decision without a hearing and, over Complainant's objections, the AJ issued a decision by summary judgment in favor of the Agency on October 28, 2021. Specifically, the AJ found that, with regard to the nonselection for the Lead Phlebotomist position, the Agency articulated a legitimate nondiscriminatory reason for its action, namely that the selectee had superior performance appraisals and better time management and communication skills. The AJ further found that Complainant’s EEO Counselor contact was untimely with regard to the nonselection and thus the matter could only be considered as part of an overall claim of harassment. With regard to harassment, the AJ further found that the actions complained of were insufficiently severe and or pervasive to constitute harassment. The Agency subsequently issued a final order adopting the AJ’s Decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 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. 2022000710 3 Not Selected for Lead Phlebotomist Position With regard to the June 8, 2018 nonselection, we note that the record shows that Complainant's first EEO Counselor contact did not occur until March 26, 2019. 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. However, the United States Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act fells within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113. “Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Morgan at 114. However, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. See Morgan at 117. As such, we find Complainant’s nonselection to be a discrete act that is not actionable since his Counselor contact occurred more than 45 days after the nonselection occurred, but we further find that it may be considered as evidence in support of his overall harassment claim. Even if the claim were timely made, and in considering the non-selection as evidence of harassment, we note that the Agency articulated a legitimate, non-discriminatory reason for its action. The Selecting Official (Caucasian, female) averred that she based her selection on “past performance, accuracy and the notes made by the interview committee as well as direct feedback from the interview committee” and that the Selectee (white female) “has superior time management skills, communication skills (no complaints vs. several complaints involving [Complainant]). Also, I believe [the Selectee]’s Performance Appraisal has been higher than [Complainant]’s for the past several years.” Selecting Official further averred that Complainant was lacking in “Effective Communication Skills: Ability to communicate with co-workers and staff (MD/RN’s). During staff meetings, [Complainant] refuses to give any input/feedback on ways to improve lab operations. He attends the meetings but is non-verbal.” Complainant averred that his qualifications were superior to those of the Selectee and that he had more seniority, experience, and time in service than the Selectee. While his qualifications are impressive, we note that on appeal, Complainant does not address the Agency’s articulated reason for its decision in selecting the Selectee over Complainant and thus has not established that the Agency’s articulated reason for its action is a pretext. Nor has Complainant established that the Agency harbored discriminatory animus towards his protected bases. Complainant argues that “when you look at the composition of the lab, the manager, the supervisors, the lead techs and the selection board of all predominately white females and they select a white female candidate, we would argue this is statistically impossible.” 2022000710 4 We are unpersuaded by Complainant’s argument, however, as we note that without knowing the racial and gender make up of the pool of potential candidates for employment at the facility, the fact that employees are “predominantly white females” is insufficient to establish discriminatory animus, or that the Agency’s articulated reason for its action is a pretext. With regard to Complainant’s arguments on appeal concerning discovery, we note that AJs have broad discretion in the conduct of hearings, including discovery. See 29 C.F.R. § 1614. 109. Given that Complainant argues that the AJ’s denial of discovery prevented Complainant from establishing statistical evidence of favoritism in favor of females, we find no abuse of discretion by the AJ since Complainant does no assert, and there is no basis to believe, that any Agency statistical evidence obtained through discovery would address the key fact necessary to establish statistical proof of sex-favoritism, namely the gender composition of the potential pool of candidates for all the positions at the facility at the time each employee was hired. Hostile Work Environment To prove his hostile work environment 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/national origin, sex or prior protected activity. 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). As detailed above, we have already concluded that Complainant’s non-selection for the Lead Phlebotomist position was not motivated by discriminatory or retaliatory animus. Therefore, we will not consider it as evidence in support of Complainant’s hostile work environment claim. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant also alleges the following acts of harassment: around mid-March 2019, he was subjected to a no-lunch policy after 1:00 PM; on March 18, 2019, Complainant received counseling; on March 19, 2019 he was verbally abused and threatened; on March 25, 2019, he received a verbal warning; on April 22, 2019 he was questioned about inappropriate e-mail signature blocks; and on May 24, 2019, he was issued written counseling. In assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). 2022000710 5 However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on his protected bases. Nor do we find the actions to be sufficiently severe and/or pervasive so as to change the terms and conditions of Complainant’s employment. On appeal, Complainant argues that the AJ misrepresented material facts regarding whether or not the Agency had a de facto, if not de jure, policy regarding lunch times. However, given that we find that the actions complained of were insufficiently severe and/or pervasive to constitute harassment, even assuming Complainant’s claim about lunch policy is true, as we must at the summary judgment stage, Complainant still cannot establish harassment occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established, by a preponderance of the evidence, that discrimination or unlawful retaliation occurred. We therefore AFFIRM the Agency’s final order. 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. 2022000710 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2022000710 7 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 7, 2023 Date Copy with citationCopy as parenthetical citation