[Redacted], Allen M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 29, 2022

Appeal No. 2021001152 (E.E.O.C. Jun. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allen M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001152 Agency No. 2003-0629-2018106311 DECISION On December 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 4, 2020 final decision 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., 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 During the period at issue, Complainant worked as a Psychology Technician, GS-9, at the Agency’s VA Medical Center in New Orleans, Louisiana. On October 16, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him based on national origin (Chinese), disability (generalized anxiety disorder), age (59), and in reprisal for prior protected EEO activity (six previous EEO complaints with his first level supervisor named in two of them) when: 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. 2021001152 2 1. From March 16, 2018 through September 30, 2018, Complainant did not receive a single job duty of his own, which was reflected in his most recent annual performance appraisal. 2. On August 23, 2018, Complainant’s supervisor (RMO1) disclosed that Chief, Research Service (RMO2) stated that Complainant was not eligible to do independent research at the GS-9 level. 3. On August 23, 2018, Complainant mentioned during the meeting that from the information he received, RMO2 made his decision about Complainant’s job duty assignments after he consulted with HR Supervisor (HRS) and EEO Manager (EEOM1). 4. From September 4, 2018 to October 2, 2018, management failed to respond to Complainant’s request for meetings and information. 5. On November 29, 2018, the Chief of Staff (RMO3) visited Complainant’s office and gave Complainant a direct order to sign a memorandum he created without giving Complainant an opportunity to read the memo first. 6. On January 3, 2019, the Acting Chief of Psychology (RMO4) and RMO1 admitted during a meeting that they had been working on changing Complainant’s position description for about three months.2 The record reflects that during the investigation, Complainant informed the investigator that he was not going to provide answers to the disability portion of his written affidavit. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. However, Complainant did not request a hearing or a final agency decision. Thereafter, the Agency issued a final decision on November 4, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Complainant has alleged that Agency management created a discriminatory and retaliatory hostile work environment as evidenced by the incidents reference in his complaint. 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 2 The record reflects that claims 5 and 6 were later amended to the instant formal complaint. 2021001152 3 the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases - in this case, his national origin, age and/or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our independent review of the evidence shows that, during the investigation, the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding allegation 1, Complainant asserted that from March 16, 2018 through September 30, 2018, he did not receive a single job duty of his own, which was reflected in his most recent annual performance appraisal. Specifically, Complainant stated that the Acting Psychology Chief and his newly assigned supervisor failed to assign Complainant’s job duties. An Agency Psychologist (RMO1) (Caucasian American, born 1960), also Complainant’s first line supervisor, stated that Complainant joined her team as a Psychology Technician in January 2018 and had an objection to his duties from the start. While RMO1’s team primarily does psychological testing, Complainant was informed of his duties in an initial meeting with the supervisor and other management officials. She stated that Complainant frequently argued and asked for deferments on his duties and assignments. Complainant refused to do his tasks by not responding to her. When given a direct order, he would call in sick. Regarding allegation 2, Complainant alleged that on August 23, 2018, RMO1 disclosed that Chief, Research Service (RMO2) (American, born 1963) stated that Complainant was not eligible to do independent research at the GS-9 level. RMO1 noted in Complainant’s previous position he looked at measures and pulled numbers and considered that “research.” Complainant wanted to conduct research while on her team as a Psychology Technician. However, he was not authorized to conduct independent research. Furthermore, RMO1 gave Complainant an opportunity to participate in a program evaluation, but Complainant declined the opportunity. Regarding allegation 3, Complainant stated during a meeting to discuss his EEO complaint that he had not been assigned a single job duty of his own since March 16, 2018, and that RMO2 made the decision about his job and assignments in January 2018 after consulting with Human Resources and the EEO Manager. RMO2 testified that Complainant was not eligible to do research at the GS-9 level based on Agency policy for Psychology Technicians. He averred he did consult with HR when Complainant’s position description was being updated, but said he only spoke with the EEO Manager only with respect to arranging possible mediation of Complainant’s concerns. Regarding allegation 4, Complainant claimed that from September 4, 2018 to October 2, 2018, management failed to respond to Complainant’s request for meetings and information. RMO1 asserted that she has never denied meeting with Complainant. In addition, other Agency management official indicated they also had met with Complainant regularly. 2021001152 4 Regarding allegation 5, Complainant alleged that on November 29, 2018, the Chief of Staff (RMO3) visited Complainant’s office and gave Complainant a direct order to sign a memorandum without giving Complainant an opportunity to read the memorandum first. Complainant claimed that he informed RMO3 that he had not an opportunity to read the memorandum after he was told to sign it and RMO3’s response was “just sign it.” Thereafter, Complainant reported the matter to the EEO Program Manager who has since retired from Agency employment. He then wrote the Network Director who informed him to contact the Acting EEO Manager, but he did not find her helpful. Regarding allegation 6, Complainant asserted that on January 3, 2019, the Acting Chief of Psychology (RMO4) (American, born 1971) and RMO1 admitted during a meeting that they had been working on changing Complainant’s position description for about three months. RMO1 recalled a meeting with Human Resources (HR) and Complainant in which he complained about his job description and duties. Following a review of Complainant’s position description, she determined it needed to be updated and was advised by HR to update it. RMO1 invited Complainant to work with her on developing his new position description, but Complainant declined it. The record reflects that a new position description was created that more accurately articulated Complainant’s duties. In addition, Agency management provided Complainant a private office although none of the clinicians have a private office. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the incidents supporting his harassment/hostile work environment claim were in any way motivated by his national origin, age or prior EEO complaint. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality, autocratic attitude, or lack of perceived responsiveness. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, there is simply no evidence, beyond Complainant’s bare assertions, that the responsible management officials were motivated in any way by discriminatory or retaliatory animus. As such, Complainant’s claim of discriminatory harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 2021001152 5 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. 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). 2021001152 6 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 June 29, 2022 Date