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

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2021002696 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hung P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002696 Agency No. 200J-0506-2020103098 DECISION 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 March 9, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse at the Agency’s Medical Center in Ann Arbor, Michigan. On June 8, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on national origin (Asian) when: 1. Complainant was subjected to harassment when: a. on March 4, 2020, a Charge Nurse (CN) told Complainant to not touch her patient roster; slapped his hand away; and yelled loudly, “Oh, you’re sniffing. You have Coronavirus. You’re from Asia. You are Asian,” and then elbowed him “so hard”; 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. 2021002696 2 b. after reporting this harassment and physical assault to management, a Nurse Manager (NM), told Complainant on March 24, 2020, that he was being, “written up for inappropriate conduct for touching [CN’s] papers”; and c. on March 24, 2020, Complainant received a Proposed Admonishment for disruptive behavior in connection with the March 4, 2020 incident; 2. on April 8, 2020, Complainant was given a Written Admonishment; 3. on July 29, 2020, he was given a Written Reprimand; and 4. on September 28, 2020, he was issued a 7-Day Suspension letter. The Agency accepted the above claims for investigation but dismissed Complainant’s claim for a December 11, 2019, Written Counseling because Complainant failed to raise the issue during EEO counseling. The Agency also dismissed allegations related to a temporary detail assignment used to facilitate an internal investigation for failure to state a claim as a collateral attack on the internal investigation.2 Report of Investigation (ROI) at 46-8. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI 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 pursuant to 29 C.F.R. § 1614.110(b). For claims 2, 3, and 4, the Agency bypassed the prima facie analysis and found that management officials provided legitimate, nondiscriminatory reasons for the actions. The Agency then found that Complainant only provided his subjective beliefs that he was discriminated against due to his Asian heritage, and that he failed to present evidence to prove that the reasons were pretexts for discrimination. The Agency then determined that Complainant did not prove that the alleged harassment was based on his national origin. The Agency noted that CN denied making any comments about Complainant’s nationality, and she testified that she was only concerned about anyone touching her roster, regardless of national origin. The Agency found that Complainant did not provide any evidence to refute CN’s testimony, and that the evidence showed that management officials investigated the incident and found that Complainant reacted improperly to CN’s position that social distancing was appropriate due to concerns about COVID-19. The Agency concluded that Complainant failed to prove that he was subjected to discrimination or harassment as alleged. 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissals of these claims; as such, we will not address them in the instant decision. 2021002696 3 The instant appeal followed, and Complainant provided a brief in support of his appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS 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 Chap. 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”). Harassment (Claim 1) Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, 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. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to a protected class based on his national origin, and that he was subjected to unwanted conduct by CN (incident 1(a)). Complainant testified that, when he initially touched CN’s assignment sheet, CN instructed him to not touch her paper. Complainant stated that he put his hands near his face and touched CN’s paper a second time, and then CN shoved him. ROI at 102. The record shows that management officials conducted an investigation and obtained statements from multiple witnesses; and one witness corroborated that CN made a comment about “Asia” during the incident on March 4, 2020. ROI at 170. However, even crediting Complainant’s version of events, we find that this isolated incident was not severe to rise to the level of unlawful harassment. 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 2021002696 4 Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Dep’t 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. U.S. Postal Serv., EEOC Appeal No. 01A63021 (Aug. 23, 2006); Battle v. U.S. Postal Serv., EEOC Appeal 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. It is undisputed that any comment about “Asia” was in the context of CN’s concerns over catching the coronavirus. CN testified that she was “very careful about avoiding germs,” and that she told Complainant that she did not want anyone touching her paper. ROI at 147. We also note that it is undisputed that Complainant put his hands near his face and then touched CN’s paper again, contrary to CN’s instruction. One witness reported to management officials that Complainant pretended to lick his hand. ROI at 169. While Complainant asserts that two other employees, who were outside of his protected class, also touched CN’s paper, CN responded that she was not aware that others had touched her sheet. ROI at 150. In looking at the totality of the circumstances, we find that CN’s conduct on March 4, 2020, was a one-time incident that did not unreasonably interfere with Complainant’s work performance or create an intimidating, hostile, or offensive work environment. For incidents 1(b) and 1(c), we find that the Agency’s actions were based on Complainant’s admitted conduct on March 4, 2020. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Vet. Aff., EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, we do not find that NM informing Complainant that he was being “written up,” and issuing him a proposed admonishment, was abusive or offensive, or taken in order to harass Complainant based on his national origin. As such, we find that Complainant did not establish that he was subjected to harassment based on national origin. 2021002696 5 Disparate Treatment (Claims 2-4) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Vet. Aff., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 2, the record shows that an Associate Chief Nurse issued Complainant the admonishment for inappropriate conduct when CN told him not to touch the assignment sheet, and Complainant made a gesture of touching his face and then touched CN’s sheet again. The Associate Chief Nurse explained that the factfinding showed that Complainant committed the infraction. ROI at 155-56, 131. Regarding claim 3, Complainant was initially issued a proposed suspension for five specifications of Conduct Unbecoming a Federal Employee. The Medical Center Director mitigated the suspension to a reprimand, finding that two of the five specifications were sustained. Specifically, on April 25, 2020, Complainant interrupted a conversation between two employees and yelled something to the effect of, “no one is fixing her charting and you don’t care about her chart”; and on May 8, 2020, a coworker informed Complainant that she wrote a statement about the April 25th incident and Complainant responded, if NM was making the coworker write the statement, he was “going to get her.” The Medical Center Director averred that Complainant provided an oral response, and she sustained the charges in the reprimand. ROI at 182-3, 136. For claim 4, the Medical Center Director asserted that she issued the seven-day suspension because she believed that discipline was warranted. Complainant was suspended for Conduct Unbecoming a Federal Employee when on August 11, 2020, he took a call on his personal telephone; walked away from his assigned post; and asked an unqualified employee to monitor the cameras. ROI at 136, 222-4. A Human Resources Specialist averred that Complainant violated the employee code of conduct when he responded to CN’s instruction to not touch her sheet by gesturing to touch his face and touching the paper again, and that Complainant was appropriately subjected to progressive discipline based on his conduct history. ROI at 140, 144. 2021002696 6 We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), req. for recon. den’d, EEOC Request No. 0520080211 (May 30, 2008). For claim 2, we note that Complainant admitted to putting his hands near his face and touching CN’s paper a second time, as discussed above. On appeal, Complainant denies the “emotional outburst” for claim 3. However, the record contains the initial written complaint about Complainant’s conduct and the interview notes of the witnesses to the April 25, 2020, incident, with multiple witnesses confirming that Complainant was yelling when he interrupted a conversation. Witnesses described Complainant’s voice as threatening, demeaning, and belligerent. ROI at 188-95. Complainant also argues that the suspension (claim 4) was motivated by his “racial origin” because a White Nurse was observed watching a video and texting while assigned to camera monitoring duties yet was never written up. However, Complainant did not provide any evidence to support his assertion. We also note that, in his appeal, Complainant admits that the guidelines call for trained staff to watch the cameras and the clerk he asked to watch the cameras was not “officially trained.” Complainant did not show that the proffered reasons are not worthy of belief and his bare assertions that management officials discriminated against him are insufficient to prove pretext or that their actions were discriminatory. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on national origin for claims 2-4. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was subjected to discrimination or harassment based on his national origin. 2021002696 7 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). 2021002696 8 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 August 10, 2022 Date