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

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2022000645 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000645 Hearing No. 480-2016-00034X Agency No. 200P-0664-2014103930 DECISION On November 5, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked as a Communications Specialist at the Agency’s Veterans Hospital in San Diego, California. Complainant’s supervisor was the Designated Learning Officer (DLO) and his second-level supervisor was the Associate Director, Patient Care Services. On October 1, 2014, Complainant alleged that the Agency discriminated against him based on race (African American), sex (male), age (69), and in reprisal for prior protected activity by subjecting him to a hostile work environment as evidenced by the following allegations: 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. 2022000645 2 1. On or about June 23, 2014, Complainant was ordered by the Designated Learning Officer (DLO) to dispose of office equipment and furniture to accommodate Complainant’s move to a smaller workspace. 2. On or about June 23, 2014, Complainant learned that his new workspace would not have sufficient room for him to perform his current job (photography) duties. 3. On or about June 30, 2014, Complainant was ordered to stop scanning photographs. 4. On or about June 30, 2014, Complainant learned that he would not be allowed to keep or have access to equipment he needed to perform his job duties once he was relocated. 5. On or about June 30, 2014, the DLO was hostile when discussing Complainant’s equipment needs. 6. On or about July 9, 2014, the DLO’s conduct toward Complainant led to Complainant having to leave work per medical advice. 7. On July 9, 2014, the DLO told Complainant that there was not enough room for the stand-alone computer in Complainant’s new location, that the DLO did not want any IT equipment placed in the studio area where photographs were taken, and Complainant should have all the programs taken off of the computer and re-installed on the other computer going into Complainant’s office; 8. On July 9, 2014, the DLO demanded to know where Complainant had been, became upset and was within six inches of Complainant’s personal space. 9. On July 14, 2014, the DLO registered Complainant for an “Emotional Intelligence” class. 10. In August 2014, the DLO forced Complainant to take a class (Emotional Intelligence) allegedly for Complainant’s stress. 11. On or about August 6, 2014, the DLO was hostile when questioning and/or counseling Complainant in front of a patient. 12. Around August 2014, the DLO refused Complainant’s request to be removed from the Approving Official list. 13. On an ongoing basis through August 2014, the DLO has ceased talking to Complainant for long periods of time. 2022000645 3 14. On September 17, 2014, Complainant met with the Associate Director, Patient Care Services, and reported that he was being harassed and discriminated against by the DLO. The Associate Director, Patient Care Services never responded to, or ignored Complainant’s reports. 15. The Associate Director, Patient Care Services ignored Complainant’s report that he was suffering from PTSD due to the DLO’s harassment. 16. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO was using his authority to bully and harass Complainant and was setting him up to be terminated. 17. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had ordered him to stop taking medical photographs. 18. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO caused the removal of equipment needed by Complainant to print and edit posters. 19. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had removed his second computer, which he used for scanning and digitizing film. 20. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had refused to give him additional training on making posters and that the Agency had paid for Caucasian employees to do the job Complainant had been doing. 21. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had ordered him to find classes to learn how to make videos, and when Complainant presented the information, the DLO told him the Agency would not pay for the classes. 22. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had allowed him to create a photography clinic for veterans, and then told him he could not do it because he was not a therapist. 23. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO would order him to undertake various tasks and then change his mind, telling Complainant it was a miscommunication. 24. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO forced him to use sick leave when he was trying to save that leave for upcoming surgery. 2022000645 4 25. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO had stopped him from playing music for patients as part of the Music Wellness Team. 26. The Associate Director, Patient Care Services ignored Complainant’s report that the DLO was isolating and intimidating him and not letting him use his abilities and talents. 27. On or about February 24, 2015, the DLO did not acquiesce to Complainant’s request that DLO talk to a co-worker about making false statements. 28. On or about March 2, 2015, the DLO told Complainant to let him know if he had a shoot that would require Complainant to stay at the shoot all day. 29. On March 10, 2015, the DLO falsely represented in an email that he had told Complainant to notify him if he was going to “away from the workplace” for more than an hour. In that email, the DLO falsely accused Complainant of failing to follow this order. 30. On March 13, 2015, the DLO told Complainant that he wanted Complainant to tell him every time he had a shoot that would take him away from his office for over an hour and any time Complainant had to go off station to pick up or drop off materials at the printer. 31. On March 13, 2015, the DLO told Complainant that he had to notify the DLO when he had a shoot at the Mission Valley facility. 32. On March 13, 2015, the DLO told Complainant that he had to tell him every time he was out of his office. 33. On March 13, 2015, the DLO interrupted conversations between Complainant and a co-worker to find out what they were talking about. 34. From January 2012 to the present, the DLO deprived Complainant of adequate training for shooting videos. 35. On March 25, 2015, Complainant was given a video assignment even though he had never shot a video during his career. 36. On March 25, 2015, Complainant was given a video assignment even through Agency facilities in VISN 22 get their videos done by Agency employees in Loma Linda, California. 2022000645 5 37. On or about April 1, 2015, Complainant’s office and file cabinet were searched and the lock on one of his file cabinets was changed while he was on sick leave. 38. On April 2, 2015, the DLO gave Complainant training which the DLO was not qualified to conduct. 39. On or about April 3, 2015, Complainant notified the Associate Director, Patient Care Services that the DLO was harassing him, and she never responded. 40. On April 9, 2015, the DLO gave Complainant a letter stating that he was in jeopardy of losing his job due to alleged unsatisfactory performance. 41. On April 9, 2015, the DLO falsely accused Complainant of unsatisfactory performance. 42. On April 9, 2015, the DLO changed Complainant’s performance standards to include the following language: “utilizes video functions of various types of camera equipment to capture video as requested by customers. Video footage will be of a professional aesthetic quality.” 43. From April 14, 2015 until the present, during Performance Improvement Plan (PIP) meetings, the DLO has looked at Complainant with hatred and disgust. 44. From April 14, 2015 until the present, the DLO gave Complainant verbal instructions and/or assignments that he later changed with different and conflicting instructions. 45. In April 2015, May 2015, June 2015, November 2013, July 2013, and August 2013, Complainant objected to harassment, and the Agency has not investigated or taken any actions to protect Complainant. 46. From April 14, 2015 until the present, the DLO created inaccurate and/or incomplete weekly summaries of weekly meetings with Complainant. 47. From 2014 until the present, the DLO demanded that Complainant visit Employee Health as a condition for granting Complainant sick leave. 48. Around April 2015, the DLO asked Complainant “Do you want to go to employee health?” 49. From 2014 until the present, the DLO refused to grant Complainant annual leave for doctor’s appointments, and when Complainant requested annual leave at or around the beginning of his tour of duty, the DLO granted sick leave. 2022000645 6 50. On March 18, 2015 and April 14, 2015, the DLO falsely accused Complainant of being absent without leave. 51. Around December 2014 and during 2013, the DLO informed employees that Complainant did not “do photography,” or words to that effect. 52. From April 14, 2015 until the present, the DLO ordered Complainant to put photographs of employees and hospital events on CD’s and then give them to employees requesting the photography coverage. 53. From April 14, 2015 until the present, the DLO ordered Complainant to place scanned photographic slides with patient images from research studies and/or lectures onto the “S” drive. 54. From May 2015 until June 2015, the DLO refused to tell Complainant whether he was passing or failing a Performance Improvement Plane (PIP). 55. From April 14, 2015 until the present, the DLO sabotaged Complainant’s work assignment.; 56. From April 14, 2015, until the present, the DLO refused to put Complainant’s work assignments in writing. 57. From April 14, 2015 until the present, the DLO refused to put his work instructions in writing. 58. From May-June 2015, the DLO refused to give Complainant documents concerning the PIP and his performance. 59. Around January-February 2015, the DLO attempted to eavesdrop on Complainant’s conversation with another employee. 60. From 2012 to the present, the DLO looks at Complainant as if he were lying, and talks down to Complainant. 61. Around June 28, 2015, Complainant received a letter from the VISN 22 Network Director stating that the Agency had a record of five EEO complaints filed by Complainant that were adjudicated or pending before the Commission and denying Complainant’s request that she take action to protect him. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. 2022000645 7 On August 15, 2017, the Agency filed a Motion for Summary Judgment. Complainant responded to the motion. On September 30, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in factor of Complainant, a reasonable fact-finder could not find for Complainant. Hostile Work Environment To prove his overall harassment/hostile work environment 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 the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex, age, or engagement in prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The image which emerges from considering the totality of the record is that there were many conflicts and tensions with DLO’s management style that left Complainant feeling aggrieved. 2022000645 8 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. 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 their protected bases. Here, the preponderance of the evidence does not establish that DLO was motivated by discriminatory or retaliatory animus. Complainant’s claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the disputed actions were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). The AJ’s decision discusses in significant detail management’s testimony providing legitimate, non-discriminatory reasons for many of the actions complained of by Complainant. We will not address each analysis individually but will briefly address the AJ’s treatment of several claims, as representative of his analysis of the allegations in their entirety. Regarding allegations 29-32, the record reflects that DLO expresses a legitimate supervisory need to know the whereabouts of Complainant, as well as other employees, to track their activities when they went offsite, and to track productivity. Regarding allegation 34, DLO explained that Complainant’s requested training was more advanced than was necessary for his performance expectations. Regarding allegation 35, we note that producing videos was one of the duties identified in Complainant’s position description. We also note that Complainant asserted that co-workers were treated more favorably because they were permitted to take equipment necessary to perform their duties. The AJ correctly found, however, that the duties which Complainant asserted he was unable to perform after a relocation had already been assigned to the employees long before the relocation. As such, the AJ did not err in concluding that Complainant was not able to demonstrate that Complainant was similarly situated with other staff members regarding these claims. In addition, the AJ also properly found that many of the incidents (for example, allegations 5, 6, 8, 11, 13, 27, 33, 43, and 60) identified by Complainant involved remarks and comments that involved common workplace occurrences or slights. The Commission has long held that allegations describing “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, do not rise to the level of hostility necessary to constitute harassment in violation of Title VII. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). The Commission has stated that ordinary supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep't of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Even if done in a confrontational manner, a supervisor assigning work duties or questioning an employee about their work duties is a “common workplace occurrence.” See Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). 2022000645 9 Finally, the AJ properly found that the focus of allegations 14-16, 21-26, 39, 45 and 61 concerned upper-level management’s purported failure to respond to harassment claims. The AJ correctly found that claims of “failure to respond” addresses the issue of Agency liability, and that because Complainant had not established that he was subjected to unlawful harassment, there can be no liability for the Agency “failure to respond” in such circumstances. Allegation 61: Reprisal Claim The AJ properly determined that contrary to Complainant’s contention, claim 61 did not constitute unlawful retaliation. The AJ noted that the letter from the Network Director reflected that no action was taken against Complainant because of Complainant’s pursuit of the EEO complaint process. Rather the letter merely identified various forums available to address Complainant’s grievances, such as the EEO complaint process, the collective bargaining process, and the reasonable accommodation process. The Agency did not purport to take any action, or refraining to take any action, due to Complainant’s election to pursue any of these forums. CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation was established for the reasons discussed above. 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 2022000645 10 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. 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. 2022000645 11 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 March 16, 2023 Date