[Redacted], Val L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 2021004383 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Val L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004383 Hearing No. 420-2021-00076X Agency No. 2003-0586-2020101835 DECISION On July 30, 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 May 24, 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 Housekeeper at the Agency’s G.V. Sonny Montgomery Medical Center in Jackson, Mississippi. On April 30, 2020, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against him for prior protected EEO activity when: 1. On January 7, 2020, the Assistant Chief charged Complainant with being absent without leave (AWOL) for 8 hours. 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. 2021004383 2 2. On or about January 12, 2020, the Assistant Chief charged the Complainant AWOL for 8 hours. 3. On January 31, 2020, the Assistant Chief issued the Complainant a proposed 14- day suspension. 4. On February 3, 2020, the Complainant resigned (constructive resignation) from his position as a Housekeeper.2 During the investigation of the complaint, management witnesses stated that Complainant’s proposed suspension was due to his being marked AWOL on multiple occasions. See ROI at 131-32. Complainant stated that he resigned because the suspension was based on false allegations. See ROI at 52-53. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 25, 2021, motion for a decision without a hearing and issued a decision by summary judgement on May 24, 2021. The AJ found that there were no genuine issues of material fact in dispute. The AJ further found that even assuming arguendo that Complainant could establish a prima facie case of disparate treatment, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence to support his assertions of pretext. The AJ therefore concluded that Complainant failed to establish that the Agency subjected him to discrimination as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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 2 The Notice of Acceptance erroneously identified the Housekeeping Supervisor as the responsible management official for these actions, but Complainant’s affidavit stated that the Assistant Chief was the actual responsible management official as the Housekeeping Supervisor was on Family and Medical Leave Act (FMLA) leave at the time. See Report of Investigation (ROI) at 34-36; 47; 58-60. The Agency accepted claims 1, 2 and 4 as discrete incidents of discrimination. 2021004383 3 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). Upon review of the Agency’s motion for summary judgment and the record as a whole, we agree with the AJ that the Agency’s motion accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Contrary to Complainant’s argument on appeal, Complainant’s repeated allegations that various management officials are being untruthful are not sufficient to create a dispute of fact as Complainant has not provided 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. 0120181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). 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). 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). Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record indicates that Complainant was marked AWOL on January 7 and 12, 2020. See Report of Investigation (ROI) at 128. 2021004383 4 The Assistant Chief explained that employees are responsible for observing leave and excused absence policies and Complainant did not request leave in a timely manner or follow the approved procedures and therefore was marked AWOL. See ROI at 78-80. He further stated that Complainant resigned on February 3, 2020, stating that leadership were all criminals and Complainant refused to work among them. See ROI at 81. Complainant’s resignation letter stated that he was resigning due to “unfair labor practices,” specifically mentioning “[a] suspension without a plausible cause,” and that he refused to work with management officials who he asserted were all “criminals.” See ROI at 85. We find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. We emphasize that there is no evidence in the record to support Complainant’s repeated assertions of a discriminatory motive. To the extent Complainant appears to argue that he was wrongly marked AWOL because he did attempt to call, we note that even assuming the evidence Complainant submitted of his attempt to contact one of his coworkers about his leave is acceptable, Complainant did not follow the Agency’s policies on requesting leave and whatever attempts he made were not successful. See Agency’s Motion for Summary Judgment, Ex. 8; ROI at 88-92. Moreover, the evidence indicates that Complainant voluntarily decided to resign due to his own disagreement with the Agency’s decision to punish him for being AWOL. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See 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). Hostile Work Environment To establish a claim of hostile work 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 (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 conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021004383 5 Constructive Discharge The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. See Complainant v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). 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) 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. See Complainant v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). We conclude that a finding of constructive discharge is precluded by our finding that Complainant was not subjected to a discriminatory hostile work environment. See Terrence F. v. Nat’l Aeronautics and Space Admin., EEOC Appeal No. 2021001419 (Nov. 22, 2021). Complainant’s subjective assertion that Agency leadership made false allegations against him and subjected him to harassment, which is unsupported by any evidence in the record, is not enough to meet the objective standard required to establish a constructive discharge claim. See Isabel F. v. Dep’t of Labor, EEOC Appeal No. 2021002656 (Aug. 8, 2022); James v. Dep’t of the Navy, EEOC Appeal No. 01842127 (April 1, 1986) (“The law does not permit an employee’s subjective perceptions to govern a claim of constructive discharge.”). 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 action finding that Complainant did not establish that he was subjected to 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. 2021004383 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. 2021004383 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 23, 2023 Date