[Redacted], Todd P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2021005039 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Todd P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021005039 Hearing No. 440-2020-00111X Agency No. 200J-0537-2019103672 DECISION On September 14, 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 August 19, 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 Facility Chief Logistics Officer at the Agency’s Jesse Brown VA Medical Center in Chicago, Illinois. On June 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his race (African American) 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. 2021005039 2 1. He was subjected to a hostile work environment when: a. in 2017 and continuing, his personal records were accessed; b. In October 2018, and continuing, he was verbally reprimanded, his work attendance monitored, and his timecard mismanaged; c. In November 2018, he was threatened with Absent Without Leave (AWOL); d. In February or March 2019, he was falsely accused on changing an employee’s evaluation; and e. Since June 2019, he has had little direct supervisor contact. 2. On January 17, 2018, he was found qualified, but was not interviewed for the position of Deputy Director. 3. On June 19, 2018, he was reassigned and banned from the Logistics Department and was required to report to a subordinate.2 The Agency accepted the complaint and conducted an investigation into its claims. During the investigation, Complainant asserted that after returning from leave in October 2018, he was told to report to Engineering and when he went to Logistics to retrieve some records, he was told by the Chief Engineer that the Medical Center Director (Director) had told him that Complainant was not supposed to be in the Logistics area. See Report of Investigation (ROI) at 124. Complainant further stated that the Director told him that the Director would now be certifying Complainant’s timecard as timekeepers were being realigned to better reflect the supervisory chain of command. See ROI at 124-25. Complainant stated that he was told by the Director’s office that he would be marked AWOL if he did not provide more medical information. See ROI at 126. He further stated that in June 2018, he was falsely accused of improper possession of government equipment and on June 19, 2018, he received a memorandum detailing him to the Office of the Director until further notice and restricted from performing any logistics/supply chain operational duties unless authorized by the Chief Engineer. See ROI at 128; 186. Complainant stated that he was highly qualified for the position of Deputy Director as he had previously “[run] the Medical Center for close to two years,” but that he was not interviewed. See ROI at 133-34. He asserted that the Director told him that he rated 10 out of 72 candidates and Complainant believes that the Director pre-selected the Selectee because she had previously worked with the Director at another duty station. See ROI at 133-34. 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 EEOC Administrative Judge (AJ). 2 Claims 2 and 3 were accepted as discrete incidents of discrimination. 2021005039 3 Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not submit any evidence to support his assertions of pretext. The decision further found that the alleged incidents of harassment taken together were not severe or pervasive enough to constitute an unlawful hostile work environment and therefore concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the Agency’s decision. On appeal, Complainant requests the case be remanded for a hearing and, on the merits, challenges the Agency’s finding of no discrimination based on additional unsworn witness statements.3 The Agency did not file a brief in response. ANALYSIS AND FINDINGS 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 Chapter 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”). Hearing Request on Appeal While Complainant initially requested a hearing following the Agency’s investigation into his complaint, he subsequently withdrew that request. He now requests a new hearing on appeal based, at least in part, on his assertion that the Agency’s final decision was untimely issued. In this case, after Complainant withdrew his request for a hearing and the AJ instructed the Agency to issue its final decision within 60 days as required by 29 C.F.R. § 1614.110(b), the Agency did not issue its decision for approximately six months. 3 To the extent Complainant bases his arguments on the additional witness statements attached to his brief, we note that generally no new evidence is accepted on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See Sunday S. v. Dep’t of Homeland Sec’y, EEOC Appeal No. 2019005172 (Sept. 3, 2020). Complainant does not provide any explanation for why the evidence was not available earlier and as such, the additional evidence will not be considered on appeal. See Giselle L. v. Nat’l Labor Relations Bd., EEOC Appeal No. 2019005170 (March 10, 2020); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). 2021005039 4 To the extent that Complainant appears to base his request that his case be remanded for a hearing on the fact that the Agency’s decision was untimely, issued approximately six months after the AJ remanded the complaint for a decision, we reject Complainant’s argument. Complainant voluntarily withdrew his request for a hearing and cannot now retract the withdrawal after the Agency issued its decision merely because he is dissatisfied with the Agency’s decision. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Director explained that Complainant was reassigned from Logistics to the Engineering department and further was not permitted to go into the Logistics office during that time because of the pending OIG investigation and the related administrative action. See ROI at 140-41, 146. The HR Officer further clarified that the OIG investigation found theft of government property and inappropriate relationships with female staff. See ROI at 149-50. The Director explained that Complainant was not interviewed for the Deputy Director position because he was not within the highest qualified group of applicants while the Selectee was recommended as the highest qualified applicant. See ROI at 145. 2021005039 5 We further find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. We emphasize that there is no evidence in the record to support Complainant’s assertions. The Commission has repeatedly stated that a complainant’s generalized testimony that an Agency’s actions are motivated by discrimination is not sufficient to show pretext. See Mirtha H. v. Dep’t of the Navy, EEOC Appeal No. 2022002695. Moreover, to the extent Complainant argues that the Selectee was selected due to her prior relationship with the Director, we note that there is no evidence to support his assertions and, in any event, employment decisions based on friendship or favoritism, while potentially unfair, are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. See Billie M. v. Dep’t of the Navy, EEOC Appeal No. 2022002994 (Nov. 10, 2022). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). In this case, we find that Complainant’s hostile work environment claim fails because there is no evidence to support his assertions that any of the alleged incidents of harassment are due to his race. See Malekpour v. Dep’t of Transp., EEOC Appeal No. 0120113988 (Feb. 14, 2012). We further note that to the extent alleges a violation of his privacy, violations of the Privacy Act may not be challenged through the EEO complaint process. See Shondra S. v. Dep’t of Veterans Affs., EEOC Appeal No. 2021003035 (July 12, 2021). Moreover, the record indicates that all of the alleged incidents of harassment consist of routine supervision and managerial discipline or personality conflicts and general workplace disputes unrelated to a protected basis, which we have held are insufficient to establish a hostile work environment claim. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120131234 (December 3, 2015). 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 as alleged. 2021005039 6 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). 2021005039 7 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 February 2, 2023 Date