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

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022002316 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shelton D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002316 Hearing No. 480-2022-00061X Agency No. 200P-0691-2021104461 DECISION On March 17, 2022, 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 17, 2022, 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., 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. 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 Program Support Clerk, 0303, GS-04 at the Agency’s Veterans Affairs Medical Center (VAMC) facility in Los Angeles, California. On August 3, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability, age (60), and in 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. 2022002316 2 1. On May 12, 2021, Complainant’s second-line supervisor shouted profanity at Complainant during a meeting, stating, “That’s your f**king problem, you don’t f**king listen. You’re trying to tell me how to f**king think, get the f**k out of my office,” and Complainant’s first-line supervisor and an Agency management official failed to address Complainant’s second-line supervisor using profanity towards Complainant; and on May 14, 2021, Complainant’s second-line supervisor told Complainant, “if you walk out the f**king door, I’m going to fire you,” or words to that effect; 2. On June 2, 2021, Complainant was rated as minimally satisfactory on an interim performance evaluation; 3. On June 20, 2021, a counseling memorandum was issued to Complainant; and 4. On June 22, 2021, Complainant’s employment was terminated. 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 requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s February 9, 2022, motion for a decision without a hearing and issued a decision without a hearing on March 11, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The record indicates that Complainant’s employment was subject to the completion of a two- year probationary period that commenced on August 2, 2020. Complainant’s first-line supervisor (Supervisor) had the role of Supervisory Voluntary Services Specialist for the Los Angeles VAMC. Complainant’s second-line supervisor (Supervisor-2) was the Chief, Center for Development and Civic Engagement, at the Los Angeles VAMC. The Assistant Chief, Voluntary Service, for the Los Angeles VAMC was an additional management official (Management Official) present during the events of claim 1 and the issuer of the letter of counseling that is the subject of claim 3. Regarding claim 1, Complainant participated in two meetings with Supervisor-2 in May 2021. Complainant reported that Supervisor-2 shouted profanity at him during both meetings and threatened to fire him if he left the second meeting. Supervisor-2 denied speaking to Complainant in the alleged manner. Supervisor-2 reported that the purpose of the initial meeting was to advise Complainant about complaints of intimidation related to his behavior and Complainant leaving assigned work duties without notice. Regarding claim 2, Supervisor gave Complainant an interim performance evaluation with the box for “minimally satisfactory” selected. The evaluation document did not have any other text or information. Supervisor stated that when he attempted to explain the reasoning for the rating, Complainant would not discuss the issues. Supervisor reported that the reasoning for the “minimally satisfactory” rating was Complainant’s conduct problems including outbursts and lack of professionalism. 2022002316 3 Regarding claim 3, Complainant stated that Management Official handed Complainant an envelope containing a letter of counseling (LOC). Complainant stated that the allegation on the LOC was that he was arriving late to work. Complainant stated that he refused to sign the counseling as the allegation was a lie. The LOC dated June 16, 2021, referenced issues of misconduct including Complainant being late for work on two separate dates. The LOC also documented instances of unacceptable behavior including Complainant raising his voice at colleagues, disregarding supervisor instructions, leaving meetings without permission, being absent from service without permission, and yelling at a female colleague, “why don’t you wear a bra?” Regarding claim 4, on June 22, 2021, Complainant was given a termination letter dated June 21, 2021, with the subject line “Termination during Probationary Period”. The letter was signed by a Human Resources Officer and indicated that Supervisor-2 recommended Complainant’s termination for failure to qualify during Complainant’s probationary period due to unacceptable conduct. Supervisor-2’s letter recommending Complainant’s termination included, in part, the following examples of misconduct: (a) Complainant had left storerooms unlocked and open throughout his employment in contradiction to his instructions; (b) numerous complaints from fellow employees that Complainant had been physically intimidating; and (c) Complainant had repeatedly left his post or designated work area without notice. 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). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. 2022002316 4 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material facts exists. 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022002316 5 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. After a review of the record, we find the record establishes the Agency’s legitimate nondiscriminatory reasons for the actions contained in claims 2 - 4. Regarding claim 2, Supervisor reported that Complainant’s conduct problems including outbursts and lack of professionalism provided the basis for the rating. Regarding claim 3, the foundation for the LOC was Complainant’s misconduct including Complainant being late for work, raising his voice at colleagues, disregarding supervisor instructions, leaving meetings without permission, and yelling at a female colleague, “why don’t you wear a bra?”. Regarding claim 4, Supervisor-2’s recommendation for termination documented the foregoing misconduct while also indicating that Complainant had left storerooms unlocked and open throughout his employment in contradiction to his instructions and that Complainant had been reported numerous times for being physically intimidating to colleagues. We find that the record does not contain evidence to show that the Agency’s articulated reasons were a mere pretext for discrimination. An Agency’s reasonable, but mistaken, belief that a complainant engaged in misconduct is not evidence of pretext. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. Regarding the claim of harassment, we find the record does not include evidence to show that that Complainant’s membership in a statutorily protected class was the basis for the conduct alleged in his claims. For instance, even assuming that Supervisor-2 conducted herself in the manner alleged in claim 1, the record does not contain evidence to demonstrate that the conduct occurred because of the alleged bases of discrimination or retaliation. Complainant relies solely on his asserted belief that the behavior alleged in claims 1 - 4 was discriminatory in nature. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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 2022002316 6 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). 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. 2022002316 7 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 December 12, 2022 Date