0120130143
07-02-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130143
Agency No. 200J05502011104939
DECISION
On October 12, 2012, Complainant filed an appeal from the Agency's September 17, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency properly held that Complainant did not establish that he was subject to a hostile work environment based on age (over 40), national origin (Indian), Race (Asian), and sex (male) when:
1. On September 19, 2011, Complainant was only approved for probationary re-privileging for 90-days;
2. On September 21, 2011, Complainant was rated unsatisfactory in three categories on his proficiency rating; and
3. Effective December 6, 2011, Complainant was forced to retire from his position as a physician.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at the Agency's Danville VAMC facility in Danville, Illinois. On November 30, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (over 40), race (Asian), national origin (Indian), and sex (male) as articulated in the statement of "Issues Presented" above. 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. In accordance with Complainant's request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected him to discrimination or harassment as alleged.
Specifically, the FAD found that the Agency articulated legitimate, non-discriminatory reasons for the actions taken with respect to each of Complainants allegations. With respect to Claim 1, the FAD found that the record revealed that Complainant had encountered problems maintaining patient medical records in a timely manner and had been cited on several occasions for deficiencies in that area. Regarding Claim 2, the FAD referenced its findings on Claim 1, and added that Complainant continued to experience issues in patient care and follow up. Additionally, the Agency indicated that Customer Satisfaction Surveys, patient and staff memos, and interdisciplinary team members' complaints of perceived or actual care related issues all contributed to Complainant's low satisfactory rating in one of the categories. Finally, the FAD determined that Complainant did not offer credible evidence demonstrating that a reasonable person in his position would have found the working conditions so intolerable, that they would have been forced to retire, or that such conditions were created by conduct that constituted a violation of Title VII and the ADEA.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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 of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, national origin, race, and sex, we find that the Agency articulated legitimate, non-discriminatory reasons for each of the alleged discriminatory actions complained of in the instant matter, and that Complainant was unable to demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record reflects that Agency management had very specific reasons, as set forth above, explaining why Complainant was only approved for probationary re-privileging for 90-days, and was rated unsatisfactory in three categories on his proficiency rating. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In light of the evidence in the record, we find that Complainant did not establish that he was subjected to discrimination based on his age, national origin, race, or sex.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Overall, we find that the conduct which Complainant characterizes as discriminatory harassment in the instant matter was neither motivated by unlawful considerations of his age, national origin, race, or sex; nor severe or pervasive enough to be considered hostile or abusive by a reasonable person in his position. He has not presented any sworn statements, or documents that contradict the explanations provided by the Agency, or which calls their veracity into question. It is Complainant's burden to prove the existence of all the elements of his hostile work environment claim by a preponderance of the evidence, and more is required to meet that burden than merely expressing one's belief that a hostile work environment has occurred.
Constructive Discharge
As articulated above, to prevail on his claim of hostile work environment, Complainant had to prove, by a preponderance of the evidence, that because of her age, national origin, race, and sex, he was subjected to conduct so severe or pervasive that a reasonable person in his position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). To show that the hostile environment complained of had culminated in his constructive discharge, Complainant would have to prove, again by a preponderance of the evidence, that that same conduct gave rise to working conditions so intolerable as to force a reasonable person in his position to resign. Cullors v. Department of Defense, EEOC Appeal No. 01A41560 (June 27, 2006). Only if Complainant satisfies his burden of proof with respect to all three elements, motive, hostility, and intolerability, will the question of Agency liability for constructive discharge present itself. But even if he proves motive and hostility, his constructive discharge claim could still fail if he cannot establish that the working conditions to which he was subjected were so hostile or abusive as to be intolerable to a reasonable person.
We find that Complainant did not present sufficient evidence to establish that he was subjected to intolerable working conditions which compelled him to retire. We concur with the Agency's reasoning that Complainant's asserted reason for why he retired (his anticipation of a negative evaluation and loss of clinical privileges at the end of the 90-day probationary period) was the sole reason for his departure. Additionally, we concur that Complainant offered no evidence to refute the well-documented record of his ongoing performance issues in the unit that management proffered as the reasons for their actions. Since we find that even considering all the incidents together, they are not severe or pervasive enough to constitute a hostile work environment claim, we must conclude that Complainant cannot establish a claim for constructive discharge on the same facts.
Overall, we find that the conduct which Complainant characterizes as discriminatory harassment was neither motivated by unlawful considerations of his age, national origin, race, or sex; nor severe or pervasive enough to be considered hostile or abusive by a reasonable person in his position. We therefore agree with the Agency that Complainant has not shown that he had been discriminated against, as alleged.
CONCLUSION
Based on a thorough review of the record in its entirety, including considerations of all statements submitted on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD finding that Complainant cannot establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___7/2/15_______________
Date
2
0120130143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130143