Barrett V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 9, 2020

2020005351 (E.E.O.C. Nov. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barrett V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005351 Agency No. 200J-0657-2020100594 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s October 1, 2020 appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 15, 2020 final decision 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 During the period at issue, Complainant worked as an Environmental Management Service (EMS) at the Agency’s Veterans Affairs Medical Center (VAMC) in St. Louis, Missouri. On December 17, 2019, Complainant filed a formal complaint. Complainant alleging that he was subjected to discrimination/a hostile work environment based on race (African-American) and in reprisal for prior protected EEO activity when: 1. On July 11, 2019, Complainant was issued a gag order and told to “shut up” about the investigation against him. 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. 2 2020005351 2. Since July 11, 2019, managers leaked the nature of his temporary reassignment. 3. On October 31, 2019, Complainant received an annual performance evaluation rating of Unacceptable. 4. On December 12, 2019, Complainant was removed from employment with the Agency. After the investigation of the accepted claims, 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency provided appeal rights to the Commission regarding claims 1 -3, and the harassment claim. The Agency provided appeal rights to the Merits Systems Protection Board, regarding claim 4. The instant appeal followed. Complainant does not make any statements or submit any briefs on appeal. ANALYSIS AND FINDINGS Claim 4: Termination from Agency Employment A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the Merits Systems Protection Board (MSPB). See 29 C.F.R. § 1614.302(a)(1). When a complaint contains both appealable and non- appealable matters, the non-appealable issues should be processed separately from issues appealable to the MSPB. See Lethridge v. U.S. Postal Serv., EEOC Appeal No. 07A40076 (Nov. 29, 2004), req. for recon. denied, EEOC Request No. 05A50399 (Feb. 9, 2005) (citing, Caldwell v. Office of Pers. Mgmt., EEOC Request No. 05910649 (Sep. 6, 1991)). Here, we determine that the Agency correctly provided appeal rights to the MSPB for this claim. See 29 C.F.R. § 1614.302(d)(3) (“At the time that the agency issues its final decision on a mixed case complaint, the agency shall advise the complainant of the right to appeal the matter to the MSPB (not EEOC), within 30 days of receipt and of the right to file a civil action as provided at 29 C.F.R. § 1614.310(a)”). Moreover, the Agency properly separately processed the non-appealable issues (claims 1 - 3), from the issue appealable to the MSPB (claim 4). See, e.g. Chasity C. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120140557 (November 4, 2016) (advising that the agency should have bifurcated the complainant’s non-mixed claims from her mixed claims and issued a final decision with appeal rights to the mixed claim, providing the option for an EEOC hearing for the non-mixed claims). 3 2020005351 We therefore determine that the Agency properly bifurcated the non-appealable actions from the appealable action, with appeal rights to the MSPB only for the termination. See Roxana v. Dep’t of Homeland Sec., EEOC Appeal No. 0120150209 (January 3, 2017 (finding that the non- appealable actions should have been bifurcated from the appealable action, with appeal rights to the MSPB only for the appealable actions). Given these circumstances, we will not address further claim 4. We proceed to address the Agency’s disposition of claims 1 - 3, as well as the claim of ongoing harassment, as follows. Disparate Treatment 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 complainant to prevail, 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, nondiscriminatory 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 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). Claim 1 Here, Complainant alleged that, on July 11, 2019, he was issued a gag order and told to “shut up” about an investigation against him initiated as a result of allegations of misconduct. Complainant stated that he approached his first and second-level supervisors (S1 and S2, respectively, both Caucasian) regarding the investigation and asked that the investigation be handled by someone other than S1 and S2.2 2 Complainant bases his retaliation claim on his July 11, 2019 request concerning who would conduct the investigation, characterizing this as protected activity. 4 2020005351 The Agency articulated its legitimate, non-discriminatory rationale for its actions. S1 testified that there were allegations against Complainant for misconduct. As a result, S1 removed Complainant from the area where Complainant was being accused of that misconduct. S2 testified that a meeting was held on July 11, 2019, and in that meeting the Agency issued Complainant a tour change memorandum. S2 explained that the memorandum was to change Complainant’s duty station so that the fact-finding investigation could proceed. S1 and S2 denied telling Complainant to “shut up” at any point. Both S1 and S2 testified that they were unaware of Complainant having previously participated in the EEO process. Complainant has not provided evidence that the Agency’s articulated legitimate, nondiscriminatory rationale is pretext for discrimination. The record does not provide corroboration for Complainant’s allegation that S1 and/or S2 told him to “shut up.” Moreover, while Complainant may assert that he had not engaged in misconduct, he has not contested the fact that the investigation resulted from these allegations. Complainant has provided no proof that the investigation was initiated for discriminatory reasons or that he was told to “shut up” about it. Claim 2 Complainant alleged that his managers leaked the nature of his temporary reassignment. S2 confirmed that he advised Complainant’s new supervisor that Complainant was being reassigned to him, but S2 denied that he advised the new supervisor of the reason why Complainant was being reassigned. S1 denied leaking Complainant’s reassignment. The supervisor to whom Complainant was reassigned (NS) (African-American) confirmed that he was unaware of why Complainant was reassigned to him. NS also testified that he was unaware of the investigation that was conducted against Complainant. NS stated that some female employees submitted reports of contact (ROC) against Complainant. NS stated that he was unaware of Complainant’s prior EEO activity. Complainant does not present evidence to demonstrate that the Agency’s articulated legitimate, non-discriminatory reason is pretext for discrimination. Claim 3 On October 31, 2019, Complainant received a rating of “Unacceptable” in his annual performance review. S1 testified that he conducted Complainant’s annual performance review and rated him. S1 explained that Complainant was rated unsatisfactory on critical elements, and explained what would be considered a “fully successful” rating. S1 testified that a fully successful rating would occur if an employee did not receive any major complaints resulting from formal complaints from patients, visitors, or staff. S1 stated that Complainant received a major complaint, which rendered him “unsuccessful.” S1 stated that Complainant was “unsuccessful” in one critical element, and had been either “fully successful” or “exceptional” in prior annual performance reviews. S1 and S2 both testified that there were numerous allegations of sexual harassment by Complainant by fellow employees. Complainant does not present evidence to demonstrate that the Agency’s articulated legitimate nondiscriminatory reasons for giving Complainant an “unacceptable” is pretext for discrimination based on Complainant’s race. 5 2020005351 Complainant does not present evidence to support an inference of discrimination based on his race or reprisal. Each responsible management official denied being aware of any prior EEO activity by Complainant. Moreover, there is nothing to confirm that Complainant’s July 11, 2019 request not to have the investigation conducted by S1 or S2 amounted to protected activity within the meaning of Title VII. While each management official was aware of Complainant’s race, it was the ongoing allegations of sexual harassment against Complainant, and the evidence of record establishes that neither his race nor unlawful retaliatory animus led to the actions in Claims 1-3. Harassment Finally, to the extent that Complainant is also alleging that he was subjected to a discriminatory hostile work environment with respect to the actions in Claims 1-3, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our findings, discussed above, that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or unlawful retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision, regarding claims 1 - 3, and the harassment claim, because the preponderance of the evidence of record does not establish that discrimination and/or unlawful retaliation occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 6 2020005351 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, 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. 7 2020005351 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 November 9, 2020 Date