[Redacted], Ian S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022000567 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ian S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000567 Agency No. 2001-0626-2020101427 DECISION On November 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 14, 2021 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Housekeeping Aide, WG- 02, at the Tennessee Valley Healthcare System, Environment Management Service (EMS) in Murfreesboro, Tennessee. On May 13, 2020, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on disability,2 age (63), and in reprisal for 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. 2022000567 2 1. On October 17, 2019, Complainant was required to perform additional duties. 2. On October 17, 2019, Complainant’s first shift supervisor called Complainant a “cry baby” during a staff meeting. 3. On October 17, 2017, a supervisor stated that Complainant accused him of throwing away Complainant’s dentures. 4. From October 17, 2019 to April 17, 2020, several supervisors called Complainant names, ridiculed him in a demeaning and humiliating manner, and disrespected him in meetings. 5. On December 6, 2019, Complainant received a written counseling. 6. On December 19, 2019, Complainant’s second shift supervisor changed Complainant’s duty assignments. 7. Complainant’s request for reassignment was denied. 8. The Associate Director did not address Complainant’s concerns. 9. On April 17, 2020, Complainant was “forced” to retire (constructive discharge). Following the investigation into his complaint, Complainant initially requested a hearing before an EEOC Administrative Judge. However, on October 4, 2021, Complainant withdrew his request for a hearing. The AJ remanded Complainant’s complaint to the Agency for a final decision based on the investigative record. On October 14, 2021, the Agency issued the instant final decision, finding no discrimination or unlawful retaliation was established. This appeal followed. ANALYSIS AND FINDINGS As a preliminary matter, we note that Complainant has raised a variety of arguments regarding the propriety of the Agency’s final decision: that the Agency failed to address the merits of each claim; that it failed to base its review on the evidence in the Report of Investigation; that it failed to provide complete and accurate statements of law; and that it improperly issued a final decision prior to its receipt of all relevant documentation. 2 During the investigation, Complainant amended the raised bases to include disability and age discrimination. Complainant identified his disabilities as follows: Post Trauma Stress Disorder, left hand nerve damage, carpel tunnel syndrome, arthritis, and tinnitus. We presume for purposes of analysis only and without so finding, that Complainant is an individual with a disability with the meaning of the Rehabilitation Act. 2022000567 3 We have carefully considered, and have rejected these arguments, and determine that there were no improprieties as Complainant has asserted. We will now address the merits of the subject claims. Disparate Treatment: Claims 5, 6 and 7 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 a complainant to prevail, he or she 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, non-discriminatory 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). 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, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Regarding claim 5, Complainant alleged that on December 6, 2019, he received a written counseling. He said he refused to sign it because it was not true and was without justification. The Housekeeping Aide Supervisor stated that Complainant did not receive a written counseling. Regarding claim 6, Complainant alleged that on December 19, 2019, Complainant’s second shift supervisor changed Complainant’s duty assignments. The Housekeeping Aide Supervisor on the second shift asserted that Complainant’s duty assignments were not changed. Regarding claim 7, Complainant claimed that on an unspecified date, his request for reassignment was denied. The Housekeeping Aide Supervisor stated she had no knowledge of this matter. 2022000567 4 Here, Agency officials either indicated that they had no knowledge of the matter raised in the claims or denied that the matters occurred as articulated by Complainant. Complainant effectively waived the right to have this matter considered before an EEOC AJ. Now, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left with Complainant’s version of events and that of Agency management which are completely at odds. The evidence of record was therefore at best, in equipoise. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). After careful review of the record, we find that Complainant failed to prove that the events at issue even occurred or that his disability, age or retaliatory animus played any role whatsoever in these matters. Harassment/Hostile Work Environment: Allegations 1 - 4 and 8 Complainant has alleged that Agency management created a discriminatory hostile work environment. 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 his protected bases - in this case, his disability, age and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding allegation 1, Complainant alleged that on October 17, 2019, he was required to perform additional duties. Complainant stated the first shift left extra work for him to do on the night shift. He discussed the matter with his supervisor. However, the Housekeeping Aide supervisor does not recall this incident. Regarding allegation 2, Complainant claimed that on October 17, 2019, Complainant’s first shift supervisor called Complainant a “cry baby” during a staff meeting. However, the record contains a copy of Written Counseling dated January 29, 2020, given to the first shift supervisor. Specifically, the Hospital Housekeeping Officer placed the first shift supervisor on notice regarding comments made about Complainant in the presence of his co-workers. Regarding allegation 3, Complainant stated that on October 17, 2017, a named Supervisor threw away Complainant’s dentures. The Supervisor stated that he was called by a housekeeper who stated a denture box was in the trash can and wanted to know what to do with it. The Supervisor instructed her to open the box and because the box was empty, the Supervisor told the housekeeper to throw it away. Regarding allegation 4, Complainant alleged that from October 17, 2019 to April 17, 2020, both the first and second shift supervisors called Complainant names, ridiculed him in a demeaning and humiliating” manner, and disrespected him in meetings. Both supervisors attested this incident never occurred. Complainant provided no other evidence to support his allegations. 2022000567 5 Regarding allegation 8, Complainant alleged that the Associate Director did not address Complainant’s concerns. Once he received word that Complainant was embarrassed and harassed, the Associate Director stated he tried to meet with Complainant, he declined to meet with him. However, the Associate Director appointed an employee from another campus to conduct an inquiry and report back. The Associate Director stated he was unaware of Complainant’s prior EEO activity at the time. Here, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his disability, age or prior protected activity. A case of harassment is precluded based on our findings that Complainant 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. 019982923 (Sept. 21, 2000). We determine that the claims discussed below, even with considered with the disparate treatment claims discussed above, do not support a finding of discriminatory harassment. Constructive Discharge Complainant claimed that on April 17, 2020, he was forced to retire from Agency employment. Complainant is raising a claim that he was constructively discharged. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Complainant stated that he came to believe that management was setting him up to be terminated and felt forced to retire in order to avoid that happening. He noted that the supervisor removed him from his area and made him a “floater” after Complainant had worked in the same area for four years without any complaints or write ups and received “Excellent” on his evaluations every year. Based on this evidence, Complainant asserted that he was forced to retire because of discriminatory and retaliatory animus directed at him. We, however, find no evidence of a discriminatory constructive discharge in Complainant’s decision to retire. As already determined above, there is no evidence that Complainant was subjected to either disparate treatment based on discriminatory factors or subjected to discriminatory harassment. As such, he cannot establish that his decision to retire was the result of intolerable working conditions based on his protected bases. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred as alleged. 2022000567 6 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). 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). 2022000567 7 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. 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 March 6, 2023 Date