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

Equal Employment Opportunity Commission

Aug 18, 2022

Appeal No. 2021004466 (E.E.O.C. Aug. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caleb M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004466 Hearing No. 532-2020-00070X Agency No. 200H-0325 2019 10221 DECISION On August 5, 2021, 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 July 21, 2021, final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist at the Agency’s Regional Office, National Call Center in Cleveland, Ohio. On March 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (physical/mental), and reprisal for prior protected EEO activity 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. 2021004466 2 1. he was subjected to a hostile work environment with respect to (a) false accusations, (b) laughing, (c) mocking, (d) name calling, (e) hands being put in his face, (f) not responding properly to complaints of harassment, (g) micro management, (h) harassing comments, (i) intimidation, and 2. in February 2019, he was not selected to a Veterans Service Representative (VSR) position; and 3. On August 5, 2019, his duties were restricted so that he was no longer permitted to handle phone calls or give advice to veterans. Thereafter, on September 5, 2019, Complainant was issued a Notice of Proposed Removal for misconduct including releasing non-public phone numbers of Agency employees, inappropriately handling non-Change Address Direct Deposit (CADD) calls even after being directed not to do so, and getting into an altercation with a coworker. See Report of Investigation (ROI) at 173-176. The removal was placed on hold while whistleblower allegations made by Complainant were investigated. After the hold was released, Complainant received a Decision on the Removal on March 10, 2020, which was effective on March 16, 2020.2 See ROI at 179-81. 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). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s June 21, 2021, motion for a decision without a hearing and issued a decision without a hearing on July 14, 2021. The AJ found that Complainant did not establish a prima facie case of disparate treatment due to any of his protected bases because there was no evidence in the record indicating any similarly-situated employees who were not members of his protected classes were treated differently under similar circumstances. The AJ further found that, even assuming arguendo Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for all of its actions and Complainant did not establish that the Agency’s reasons were a pretext for discrimination. The AJ therefore concluded that Complainant failed to establish that he was subjected to either disparate treatment or a hostile work environment as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 2 Complainant amended his complaint to include his removal but the Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(4) because Complainant had already raised the matter in a complaint before the Merit Systems Protection Board (MSPB). The MSPB issued a decision on Complainant’s case on September 30, 2019. See Ware v. Dep’t of Veterans Affairs, MSPB Docket No.: CH-1221-19-0481-W-1. 2021004466 3 ANALYSIS AND FINDINGS 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. (Aug. 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). We find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed and that Complainant failed to establish a genuine dispute of material fact. On appeal, complainant contends that the AJ failed to consider all the evidence. We reject Complainant’s argument as none of the additional matters to which Complainant refers, such as a bargaining unit dispute, are relevant to the issue of whether Complainant established that he was subjected to discrimination due to a protected basis under the EEO laws. We therefore find that the AJ’s issuance of a decision without a hearing was proper. We also find that the AJ’s decision correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment based on his sex, race, disability, and reprisal.3 We find that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Selecting Official for the VSR position stated that, among the interviewed candidates, Complainant was rated the last out of all the applicants and the Agency Management Team also explained that Complainant did not interview well, did not fully answer all the questions on the application, and his application contained spelling and grammatical errors. See ROI at 172; 303. Moreover, Complainant’s then-supervisor, the Supervisory Legal Administrative Specialist (SLAS) explained that Complainant was reassigned to non-call duties due to his own misconduct including knowingly releasing non-public phone numbers as well as making comments on calls which undermined the integrity of the Agency. See Agency’s Motion for Summary Judgment, Ex. 9. 3 As an initial matter, we note that, to the extent Complainant argues that the Agency violated his veterans’ status rights and subjected him to reprisal for prior union activity and whistleblower activities, none of these are protected bases under any of the EEO statutes and therefore are outside the purview of the Commission. See Mac O. v. Consumer Financial Protection Bureau, EEOC Appeal No. 2021004284 (Nov. 10, 2021) (stating that veteran preference or status and union activity are not protected bases under the EEO laws); Johnnie C. v. Dep’t of Transp., EEOC Appeal No. 0120172670 (Oct. 4, 2017) (noting that reprisal based on whistleblower activities is outside the purview of the Commission). There is no evidence in the record that Complainant engaged in prior EEO activities and as such, his reprisal claim must fail. See Gruning v. U.S. Postal Serv., EEOC Appeal No. 0120103260 (Nov. 19, 2010). 2021004466 4 We conclude that the AJ correctly found that Complainant failed to establish that the Agency’s reasons were a pretext for discrimination. Significantly, Complainant did not submit any evidence to support his assertions. Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). The mere fact that Complainant disagrees with the Agency’s decision to investigate and punish his own misconduct does not establish that the Agency’s actions were a pretext for discrimination. See Morin v. Dep’t of Health and Human Services, EEOC Appeal No. 020073357 (Sept. 16, 2009). The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We further find that the AJ correctly found that Complainant failed to establish that he was subjected to a hostile work environment. There is no evidence in the record to indicate that any of the alleged incidents of harassment were due to any of Complainant’s protected bases. Complainant’s subjective assertion that he felt it to be belittling when one of his training coaches called him a “newbie” or his co-workers’ commented on his training status is not sufficient to meet the objectively offensive standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2021004466 5 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). 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. 2021004466 6 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 August 18, 2022 Date