0120152327
11-07-2017
Garrett M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garrett M.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152327
Agency No. 200P06492014103368
DECISION
On June 23, 2015, 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 June 11, 2015, final decision (FAD) 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., 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
At the time of events giving rise to this complaint, Complainant worked as a Chief, Environmental Management Service at the Agency's Northern Arizona Veterans Affairs Health Care System facility in Prescott, Arizona.
On July 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability2 (depression, hip replacement), age (57), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when he was subjected to harassment since August 2011 when:
1. The division where Complainant works has been chronically understaffed;
2. On February 8, 2013, Complainant was issued a letter of reprimand for careless or negligent workmanship;
3. On unspecified dates in 2013, Complainant's supervisor yelled at him; and
4. On June 6, 2014, Complainant was issued a 1-day suspension for failure to supervise.
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). 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. Specifically, the Agency found that the actions complained of were insufficiently severe or pervasive to constitute harassment and were not based on Complainant's protected bases. The Agency further found that it articulated a legitimate nondiscriminatory reason for the 1-day suspension and that Complainant failed to demonstrate pretext. The Agency did not analyze claim 2 under a disparate treatment theory.
ANALYSIS AND FINDINGS
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. (Aug. 5, 2015) (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").
Letter of Reprimand and One-Day Suspension.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie cases of discrimination with respect to claims 2 and 4.
With regard to claim 2, we find that a legitimate nondiscriminatory reason for the Agency's action is provided by the letter of reprimand which states that it was issued due to "careless or negligent workmanship" by Complainant. Specifically, the letter listed nine specifications where Complainant's performance needed improvement:
SPECIFICATION 1: There have been multiple interpersonal issues within EMS, both between House Keeping staff and supervisor's [sic] that you have never addressed or resolved.
SPECIFICATION 2: You're [sic] written communication is good, but your oral communication skills are lacking. Your staff reported you were condescending and non-empathetic to them when they were expressing their issues and concerns.
SPECIFICATION 3: You have limited participation in medical center committees.
SPECIFICATION 4: You have not been actively engaged within the organization, and quite often have not gone out into the field to monitor the program or staff.
SPECIFICATION 5: You have not been visible with staff or front line supervisors, nor provided proper guidance or training. �
SPECIFICATION 6: On various occasions' when VA staff members outside of Facilities Management have brought concerns forward about your attitude toward issues they were dealing with (i.e. bed care management) they have not been addressed in a professional manner.
SPECIFICATION 7: You are struggling with handling multiple tasks and adapting to new issues as they arise. In addition, you do not have good relationships with many of your frontline staff members; there is a definite lack of trust with many of the staff.
SPECIFICATION 8: Your employees do not trust in you, and you stated you are not sure if you trust your employees, Leadership has acknowledged you do not empower your employees.
SPECIFICATION 9: You have a lot of uncooperative staffing challenges and complaints. Leadership has concerns that you have not put processes in place to address these issues, nor you have a clear understanding of how to deal with them. Your follow-up has been a problem, particularly with staff complaints and issues.
Report of Investigation (ROI) Exhibit C1.
With regard to claim 4, the legitimate nondiscriminatory reason for the Agency's action was provided in the Suspension notice reducing his proposed seven-day suspension to a one-day suspension. The notice stated that the suspension was being issued for "Failure to Supervise." Exhibit C2. The Chief of Facilities Management (C1: male, unspecified disability, age 60) averred that he issued the suspension due to Complainant's failure to act when made aware of "confrontations, potential EEO problems" among the employees Complainant supervised. See Affidavit B3, p. 21. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden with regard to both claims 2 & 4.
Complainant denies some of the specifications listed in claim 2 and argued that his management of his staff might have been affected by the fact that he was suffering from depression because his wife was undergoing severe health problems at the time. See Affidavit B1, p. 56. Complainant, however, has not shown, by a preponderance of the evidence, that the Agency's articulated reason is a pretext for discrimination or reprisal. Complainant averred that others outside of his protected bases were treated differently when they did not receive letters of reprimand or suspensions but Complainant has not shown he was similarly situated with the comparators he has identified. Nor has Complainant shown that Agency officials harbored any animus towards his protected bases. With regard to discrimination based on age, Complainant averred that he believed Agency management was trying to get rid of "all of the management in Facilities Management" and hired a Chief Engineer (C2: male, no claimed disability, age 55) "to do the dirty work." Complainant testified that C2 once said "I'm going to get rid of all you old fucks," id., p. 16, but C2 denied making such a comment, stating "No. You know, I'm probably older than most everyone there, so I don't -- I don't -- I'm not in the habit of -- of showing that side professionally. I don't use that type of language, you know." Affidavit B2, p. 38.
Harassment
We note initially that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant may not include claims 2 and 4 as part of a hostile work environment claim based on our finding that he failed to establish that any of the actions taken by the agency with regard to those claims were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant alleges that his work division where has been chronically understaffed and that on unspecified dates in 2013, C2 yelled at him. In considering whether any of these actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, 510 U.S. 17, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that 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 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the 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, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that 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. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we find that Complainant has not satisfied his burden of showing that any harassment was sufficiently severe or pervasive enough to alter the conditions of Complainant's employment. Nor has he shown that the harassment either involved or was based on his protected bases.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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.
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
November 7, 2017
__________________
Date
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 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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