Cleveland C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 29, 2020

2019001708 (E.E.O.C. Jul. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleveland C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001708 Hearing No. 550-2015-0027X Agency No. 200P-0640-2014101370 DECISION On December 26, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 28, 2018 final order 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. BACKGROUND On March 18, 2014, Complainant, a former part-time Staff Endodontist with an excepted appointment not-to-exceed April 9, 2013, at the Agency’s VA Palo Alto Healthcare System in Palo Alto, California, filed a formal EEO complaint. Complainant claimed that he was subjected to harassment/a hostile work environment based on race (Asian) and sex when: 1. On April 8, 2013, Complainant’s former supervisor (“supervisor”) assigned him unobtainable performance goals/measures; 2. On June 27, 2013, the supervisor excluded him from a mandatory staff meeting; 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 2019001708 3. From June 2013 through February 20, 2014, the supervisor excluded him from office lunches; 4. On August 8, 2013, the supervisor failed to properly determine his performance pay rate; 5. On August 8, 2013, the supervisor unfairly assessed his performance, speed, and supervision/assignment of residents; 6. On September 19, 2013, the supervisor excluded him from a mandatory staff meeting; 7. On October 3, 2013, the supervisor “yelled” at him in a hallway in front of his colleagues, about problems with endodontic care and/or coverage in the clinic; 8. On October 15,2 013, the supervisor failed to provide him an internal promotion announcement which possibly precluded him (Complainant) from a promotion opportunity; 9. On October 17, 2013, the supervisor excluded him from a mandatory staff meeting; 10. On November 6, 2013, the supervisor failed to take corrective action regarding Complainant’s concerns about patient, staff safety, and staff overtime; 11. On December 12, 2013, Complainant learned that the supervisor asked a colleague to obtain Complainant’s official name and Social Security number while he was with a patient; 12. On December 18, 2013, the supervisor failed to take corrective action regarding Complainant’s concerns about patient and staff safety; 13. On January 13, 2014 the supervisor failed to take corrective action when Complainant told her that she was subjecting him to a hostile work environment, she responded by yelling “Are you telling me what to do now? We are done;” 14. On January 13 and 28, 2014, the supervisor failed to take corrective action regarding Complainant’s concerns about patient and staff safety; 15. On January 13 and 28, 2014, the supervisor failed to open Complainant’s schedule for April 2014, so that patients could start booking their endodontic appointments from the wait list; 16. On January 13, 2014, the supervisor spoked to him in an aggressive and rude manner; 3 2019001708 17. On January 15, 2014, Complainant learned from administrative staff that the supervisor instructed them to interfere and/or block his schedule for January 27, 2014, and subsequently, encouraged staff to schedule new appointments with the part-time endodontic staff instead of Complainant; 18. On February 6, 2014, the supervisor issued Complainant a written counseling for inappropriate behavior even though Complainant had patients waiting for treatment; 19. On February 20, 2014, the supervisor excluded him from a mandatory staff meeting; 20. On March 6, 2014, the supervisor instructed a Dentist to terminate Complainant from his temporary appointment as an Endodontic; 21. On March 6, 2014, the supervisor excluded Complainant from a staff retreat, scheduled for March 2014; 22. On March 20, 25, and 26, 2014, the supervisor refused to meet with Complainant about converting him to a “WOC” position; 23. On April 1, 2014, the supervisor spoke to him in an aggressive and rude manner; 24. On April 1, 2014, Complainant learned that the supervisor instructed staff members to interfere and/or block his schedule for April 3, 2014, and subsequently, encouraged staff to schedule new appointments with the Dentist or another Dentist instead of Complainant; 25. On April 1, 2014, the supervisor stated to him “you need to respect my time, as I am currently working on a report;” 26. On April 4, 2014, the supervisor stated in an email to Complainant “First, I would like to thank you for your multiple years of service to veterans and the VA community. I hope that you enjoy your Certificate of Appreciation;” and 27. On April 4, 2014, the supervisor refused to meet with Complainant about his offer to help with resident training and provided treatment to veterans. After its investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the AJ filed a Motion for a Summary Judgment. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. 4 2019001708 The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). 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 did not establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. On April 10, 2011, Complainant was hired as a part-time staff dentist with an Excepted Appointment Not-to-Exceed (NTE) April 9, 2013. Complainant was later hired as a Staff Endodontist after receiving additional training in the specialty of Endodontics. His duties included providing clinical care to veterans in the Dental Clinic. During calendar years 2012 to 2014, Complainant held a 0.1 Full-Time Employment Equivalency (FTEE) position as a Staff Endodontist. He worked 8 hours on one Thursday every pay period. On November 18, 2012, the supervisor (Asian-American, female) became the new Chief of the Dental Service. After assessing the endodontic needs in the Dental Service from January 2013 through October 2013, the supervisor offered to increase Complainant’s hours from 0.1 to 0.4, specifically requesting that he consider working 2 full days every week instead of working 8 hours or 1 day on Thursday every other week, to help with the months’ long backlog in patient dental care. 5 2019001708 On April 7, 2013, Complainant’s part-time excepted appointment was renewed with NTE date of April 6, 2014. The AJ noted that on April 8, 2013, the supervisor gave Complainant his performance goals. According to the supervisor, she stated that her own supervisor directed her “to create performance pay goals for all the providers. I was the newcomer at that point, so his guidance was to try to make four goals , which are the same for all the dentists… we have like 12 or 13 dentists, and make one goal which is specific to each dentist according to his role. So, in following that direction, I created a set of four goals and I met with each and every one of the providers.” The supervisor stated that when she met with Complainant, she presented him the same four goals “which were across the board similar to all.” The AJ further noted that in August 2013, the supervisor assessed Complainant’s performance pay on a system that assessed points for “resident supervision,” an element of his new performance goals. According to Complainant, he was provided with no time for resident supervision and as a result, his pay decreased. The supervisor explained that because she was a newcomer and was not aware that Complainant was not being allocated time for resident supervision. She asserted that if Complainant had let her know about the issue, they could have worked something out. On August 30, 2013, the supervisor notified her staff, including Complainant, that the Dental Service had posted a vacancy announcement on USAJobs website for a staff dentist position, full- time or otherwise, with a focus on the specialties of Prosthodontics, Endodontics, and Periodontics. On October 3, 2013, the supervisor and Complainant engaged in an exchange in a public area in the Dental Clinic, primarily about his uncompromising stance with respect to increasing his FTEE time from 0.1 to 0.4 in order to fill the urgent need to treat more patients. During the discussion which, at times became acrimonious, the supervisor reminded Complainant that she had given him the first option of increasing his work hours. Her request was that Complainant work every Thursday and/or for every other Wednesday and later increase his part-time hours to 2 full days per week. The supervisor also wanted Complainant to be an active part of the dental residency program. Although the supervisor understood that Complainant had outside work commitments, the supervisor nevertheless informed Complainant that she had to consider VA interest and had proceeds to explore other options including finding another Endodontist. Further, the supervisor noted that Complainant was upset that “I implied to him that, well, if you’re not able to give me the time I need for the dental service, I will have to find an alternate. So he stated to the fact that, you’re never going to find an endodontist who wants to work here for so much time, some things to that effect…I reminded him that it’s not my personal choice. I need to do this because we have so many patients waiting. That was one of the biggest needs we had. We needed more of the endodontist time and we needed more of the prosthodontist time.” 6 2019001708 The supervisor noted that during the relevant period, Complainant did not raise the performance pay rate. With respect to Complainant’s allegation that because the supervisor assigned the duties that were unattainable to his performance pay was negatively affected, the supervisor stated “I feel the Complainant should have informed me at the outset that considering the limited time that he’s here that he will not be able to attain those goals and he should have worked with me in the very beginning to state that we need to modify these goals. He brought it up to my attention when the fiscal year had already closed.” On October 17, 2013, during the Thursday staff meeting which the Complainant attended, it was announced that the selectee had been hired as a new staff dentist with a specialty in Endodontics in a 0.5 FTEE position. With the hiring of the selectee as a Staff Endodontist, the Dental Service met its endodontic FTEE needs. In late October 2013 to early July 2014, in anticipation of the Dentist’s entry on duty, the supervisor decided that Complainant’s endodontic services would no longer be needed because she now had an Endodontics who would be working more hours and more days. The AJ determined that there was no evidence that the supervisor was aware that Complainant was gay. Specifically, in her affidavit, the supervisor stated during the relevant period she was not aware of Complainant’s sexual orientation. She stated that in January 2014, she learned of Complainant’s sexual orientation when she received a notice of his EEO complaint. The AJ also noted that during the relevant period, the supervisor was not aware of Complainant’s prior protected activity. By letter dated April 6, 2014, that was handed to Complainant, he was notified that his part-time, time-limited appointment was expiring on April 6, 2014, and would not be renewed. He also received a Certificate of Appreciation that was signed by the supervisor and the Assistant Dental Chief. The AJ noted that the supervisor was not aware of Complainant’s prior protected activity. By the time that the supervisor, with her supervisor’s concurrence, had already decided not to renew Complainant’s appointment. With regard to Complainant’s other allegations, the AJ determined that the evidence does not support his contention that the supervisor “excluded him from staff meetings or lunches, deliberately failed to properly determine his performance pay, or otherwise treated him differently because, like [supervisor, he was of Asian heritage.” The supervisor denied excluding Complainant from staff meetings. With respect to Complainant’s allegation that on June 27, 2013, the supervisor excluded him from the staff meeting, the supervisor stated “that is totally incorrect. It is tied back to the fact that we had such poor access to his time. He was available only for such a limited time; two days a month and we had patients waiting for months and months to receive the specialty service, which [Complainant] provided.” Regarding Complainant’s allegation that from June 2013 through February 20, 2014, the supervisor excluded him from office lunches, the supervisor stated “in fact, the opposite is true. 7 2019001708 Despite our having, you know, some interactions in the past few months, I invited him to the office lunch, which I had arranged. I had specifically gone out to buy pizzas and stuff because we had two new providers joining in January and February and I thought it would be a nice way for the newcomers to meet all the staff…Complainant was working, was on the floor that day and I went and invited him and I said, [Complainant], you should come and join us for lunch and he was present and he met the new dentists who had joined. So, it’s not true that I excluded him from any office lunches. With respect to Complainant’s allegation that the supervisor failed to take corrective action regarding Complainant’s concerns about patient, staff safety, and staff overtime, the supervisor stated that on November 6, 2013, she did not meet with Complainant “but he sent me an email. He’s referencing to an email that he sent to me and I responded to him via email in which I acknowledged his safety concerns that he had brought forth. He had stated the problem that was happening with the endo room chair, which I acknowledged that we need to work on. So, it’s not that corrective action can be taken away instantly.” The supervisor further stated that she informed Complainant that his concerns for patient safety had been noted that “then we will take action over it because by the time we put in a work order to biomed or to engineering, by the time engineering assigns support stuff of a technician to come in, take a look, they order the part. By the time the order has come in and then they resubmit another repeat work order for them to come and repair the chair, all of it takes time.” 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 a protected bases - in this case, his race, sex, and/or sex orientation. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. After careful consideration of all Complainant’s claims and the evidence of record, there is adequate support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, sex, and/or sexual orientation. A case of discriminatory hostile work environment 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 basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 8 2019001708 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 9 2019001708 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 July 29, 2020 Date