[Redacted], Ethan M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 31, 2022Appeal No. 2021000141 (E.E.O.C. May. 31, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ethan M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000141 Hearing No. 420-2019-00041X Agency No. 200I-0619-2017101761 DECISION On October 6, 2020, 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 September 10, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Diagnostic Radiology Technician, GS-12, at the Central Alabama VA Healthcare System facility in Montgomery, Alabama. On March 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity (filing an administrative grievance and the instant complaint) when: 1. On November 23, 2016, Complainant was issued a reassignment due to a pending investigation initiated by a charge filed by one of his subordinate 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. 2021000141 2 employees (E1) and, although he was still responsible for supervising the Imaging Staff, he was told to have no contact with them; 2. As of November 29, 2016, the Complainant still had not been provided a key to the office to which he was reassigned; 3. On December 2, 2016, the Complainant was issued a second reassignment memorandum, which notified him he was to report to the Chief of Logistics (COL) in a different building, though he was still being supervised by the Chief of Radiology (COR), was to continue to conduct administrative functions for the Imaging Service, and have no personal contact with anyone other than COR or another Radiologist (R1); 4. On January 6, 2017, Complainant had to justify to COR why E1 had reported seeing him in the main hospital building after he had been reassigned and told to avoid any interaction with the Imaging Service staff; 5. On January 12, 2017, Complainant was interviewed as part of a fact- finding investigation into “numerous allegations against” him, of which he was previously unaware; 6. After filing an administrative grievance with the Chief of Staff (COS) on January 27, 2017, the Complainant never received a response. 7. Since January 27, 2017 (ongoing), the Veterans Integrated Service Network Deputy Network Director (DND) and senior management at the facility have “engaged in a cover-up of the facts surrounding the allegations (against him) of an inappropriate text message” to protect E1 and “her co-conspirators”; 8. On or about January 27, 2017, Complainant’s request to be moved off-site was not granted; 9. On January 27, 2017, Complainant was prevented from obtaining assistance from Human Resources (HR) with his reassignments when the Chief of HR (CHR) was issued a no-contact memorandum in which she was instructed not to access any employee’s files or do any work related to HR; 10. On January 31, 2017, Complainant was issued a third reassignment letter in which he was instructed to report to COL, perform duties of Logistics Service, and have no involvement with Imaging Service or its staff “in any way”; 2021000141 3 11. On February 6, 2017, after Complainant identified a Nuclear Medical Technician (NMT) and COR as individuals who defended or supported him, he learned the NMT was issued a memorandum in which she was told not to interact with him and the COR was issued a memorandum in which he was told not to interact with any Imaging Service Staff; 12. On August 1, 2017, Complainant was issued a letter of Proposed Removal;2 13. On August 17, 2017, the Acting Chief of Staff (ACOS) did not approve Complainant’s request to obtain medical care for his service-connected disability and, instead, forwarded the request to HR; 14. On September 6, 2017, Complainant learned that radiology exams were completed in his name, without his knowledge or consent, during the period he was reassigned from Radiology Service.3 On November 23, 2016, Complainant received a memorandum indicating he was being reassigned due to a pending investigation. See Report of Investigation (ROI) at 276. On December 2, 2016, Complainant was sent an additional memorandum informing him that he was being temporarily detailed out of the Imaging Service as part of the fact-finding process regarding an allegation of inappropriate text messages. See ROI at 277. In a January 31, 2017 memorandum, Complainant was informed that he was being temporarily reassigned to the Logistics Management Service due to a pending investigation into allegations of a hostile work environment and conduct unbecoming a supervisor. See ROI at 278. The Agency submitted a copy of the memorandum regarding the investigation into Complainant’s allegedly inappropriate behavior, which found that he sent a sexually explicit text message to a subordinate employee (E1) and his staff believed that Complainant exhibits favoritism and retaliates against employees who go against him. See Agency’s Motion for Summary Judgment, Ex. 1. The memorandum concluded that Complainant had engaged in conduct unbecoming a supervisor and further expressed concerns about Complainant’s communication skills as well as his close personal relationship with E1. See Agency’s Motion for Summary Judgment, Ex. 1. 2 Complainant was terminated from his employment effective August 18, 2017. See Agency’s Motion for Summary Judgment, Ex. 1. 3 Complainant’s initial complaint included only claims 1 through 11. See Report of Investigation (ROI) at 51-53. Complainant later filed two additional amendments to include claims 12 through 14. See ROI at 60-62. 2021000141 4 On August 18, 2017, Complainant was issued a memorandum removing him from his employment for engaging in an inappropriate relationship with E1, that included sending unprofessional text messages and writing a $1500 check for a loan to E1. See Agency’s Motion for Summary Judgment, Ex. 1. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 9, 2018, motion for a decision without a hearing. On March 31, 2020, the AJ issued a decision without a hearing finding no discrimination. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in finding that there were no genuine issues of material fact. Further, Complainant maintains that he has established that the Agency subjected him to a hostile work environment due to his race and sex. In response, the Agency argues that the alleged incidents did not rise to the level of a hostile work environment and that, therefore, the AJ’s issuance of summary judgment should be affirmed. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 2021000141 5 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserts that there are genuine issues of fact in dispute by casting doubt on the veracity of the Agency’s evidence. He did not, however, submit any evidence to support his assertions. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, her issuance of a decision without a hearing was appropriate. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 2021000141 6 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that the record does not establish that any of the alleged incidents of harassment were due to Complainant race, sex, or in reprisal for prior protected activity. The record indicates that the three reassignments, detailing Complainant out of his position in the Imaging Service, and the other alleged incidents of harassment were all due to the same ongoing investigation into text messages sent by Complainant. See ROI at 276-78. The DND stated that, in accordance with Agency procedure, Complainant and the subordinate employee (E1) were separated during the investigation. See Agency’s Motion for Summary Judgment, Ex. 2. With respect to claims 9 and 11, being denied assistance from the CHR and COR, the Associate Director of Resources (AD) stated that the CHR was detailed out of her position due to an unrelated internal investigation into how she ran her department. See ROI at 169. The COR explained, and the ACOS confirmed, that COR was told not to communicate with anyone in the Imaging Department, which included Complainant, due to an impending investigation into unrelated allegations concerning the COR. See ROI at 138-139; 157. The ACOS also explained with respect to claim 13, that if Complainant was eligible for care by the Agency, then he would be able to receive care at any Agency facility, unless a particular facility had restricted him. See Agency’s Motion for Summary Judgment, Ex. 3. He further explained that any requests for care outside the VA would need to be placed by a VA primary care provider or specialist, and he has not seen any such requests. See Agency’s Motion for Summary Judgment, Ex. 3. We note that Complainant acknowledged that his only prior protected activity was filing an administrative grievance on January 27, 2017, and the instant complaint on March 21, 2017, both occurred after Complainant was first notified of his reassignment due to the pending investigation. See ROI at 105. Further, there is no evidence in the record to support Complainant’s assertions that his reassignment or any of the other alleged incidents of harassment were due to his race or sex and therefore, we conclude that Complainant has not established that he was subjected to a hostile work environment. 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 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 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 Center v. Hicks, 509 U.S. 502 (1993). 2021000141 7 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions with respect to the claims which also constitute discrete acts, claims 8, 10, and 12. As noted supra, the evidence in the record indicates that the reassignments were due to the ongoing investigation into the allegations of Complainant’s inappropriate behavior. The Director of the facility stated that the investigation was initiated after receiving information that Complainant had engaged in an inappropriate relationship with a subordinate. See ROI at 176. Complainant stated that he submitted the request to be moved off-site to the COS; the COS, however, was detailed to Atlanta, Georgia, on that date and told not to have contact with anyone at the facility. Consequently, COS was unable to respond to Complainant’s request. See ROI at 128, 130. Neither the AD nor the DND were informed of Complainant’s request. See ROI at 169; Agency’s Motion for Summary Judgment, Ex. 2. The COS explained that, as a result of the fact- finding investigation, HR recommended Complainant be terminated due to a serious violation of HR policy, the intimate relationship with a subordinate employee, and a violation of the Agency’s business integrity rules by lending more than $1000 to a subordinate employee. See ROI at 131. The Agency having articulated a legitimate reason for its action, the burden thus returns to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons are a mere pretext for discrimination. We find that Complainant has not met his burden. Complainant did not submit any evidence to support his assertions of pretext. Complainant’s attempt to rely on the opinions of both the COR and an HR Manager (M1), who supported Complainant’s assertion that he was subjected to discrimination, is unavailing as neither individual provided any evidence to support their opinions. See ROI at 139, 147. Indeed, the COR admitted that he had no direct knowledge of any of the alleged incidents and his information was based only on what Complainant told him. See ROI at 138. Similarly, while M1 believed that Complainant’s race was a factor in the way the allegations against him were handled, she did not provide any evidence to support her belief and admitted that “something needed to be done about the Complainant’s actions in the workplace.” See ROI at 147. Moreover, Complainant does not deny that he engaged in the behavior which was found to be inappropriate in the letter of proposed removal. Complainant’s only argument is that termination is too severe of a consequence for his actions. 2021000141 8 The mere fact that Complainant and two of his co-workers disagree with the Agency’s choice of consequence for Complainant’s inappropriate behavior does not establish that the Agency’s actions were a pretext for discrimination. See Morin v. Dep’t of Health and Human Services, EEOC Appeal No. 020073357 (Sept. 16, 2009). The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We note that pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See Alda F. v. Dep’t of Health and Human Services, EEOC Appeal No. 0120182538 (Nov. 27, 2019). Therefore, we find that Complainant has not established that the Agency’s reasons for its actions were a pretext for discrimination. We find that Complainant did not prove by a preponderance of the evidence that he was subjected to a hostile work environment or disparate treatment discrimination based on any of his protected bases. 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 finding that Complainant was not subjected to unlawful discrimination 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. 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). 2021000141 9 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. The court has the sole discretion to grant or deny these types of requests. 2021000141 10 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 May 31, 2022 Date Copy with citationCopy as parenthetical citation