0120152402
11-09-2017
Robby F,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Robby F,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152402
Agency No. 200P-0663-2014103288
DECISION
On July 9, 2015, 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 June 3, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Doctor of Diagnostic Imaging at the Agency's Puget Sound Healthcare System facility in Seattle, Washington.
On September 3, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Indian), age (64), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when he was subjected to harassment. In support of his claim, Complainant alleged that the following events occurred:
1. On February 19, 2014, the Chief of Staff (COS) offered Complainant the position of ACOS for Research and Development (Research and Development position), which Complainant declined.
2. On April 16, 2014, a Focused Provider Practice evaluation (FPPE) was imposed upon Complainant because of concerns regarding the timeliness of report verification.
3. On May 6, 2014, Complainant was contacted by COS and told he was not under pressure to make a decision immediately, however the acting role in the Research and Development position was available effective July 1, 2014.
4. On May 28, 2014, the Acting Chief of Staff (ACOS) wrote Complainant a "flurry" of emails placing intense pressure on him to take the Research and Development position.
5. On June 7, 2014, in an email to the ACOS, Complainant addressed his inappropriate manner of communicating matters of a sensitive nature and provided the ACOS with the reasons why Complainant was not a suitable candidate for the Research and Development position. However, his explanations were not accepted by the ACOS.
6. On June 9, 2014, Complainant reported the ACOS to the facility Director for a breach of confidentiality incident that occurred on June 5, 2014.
7. On June 23, 2014, Complainant was copied on an email in which the ACOS declined the then Acting ACOS for Research's offer to continue in that role until the year 2015.
8. On June 30, 2014, in an email, the ACOS told Complainant that his questions regarding the impact of the Acting ACOS position would continue to be addressed as warranted, "but none of them should preclude your transitioning to covering for your turn in the Research and Development position starting on Monday, July 14, 2014."
9. On July 8, 2014, the ACOS wrote Complainant an email warning him to be prepared to begin his turn at covering in the Research and Development position starting July 14, 2014.
10. On July 21, 2014, Complainant was involuntarily reassigned to the Acting ACOS for Research and Development position.
As an initial matter, the Agency noted that Complainant raised claims regarding the mediation process. The Agency found that those claims should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In addition, the Agency dismissed one claim regarding an event which occurred in 2012. The Agency noted that Complainant failed to raise that claim within 45 calendar days with the EEO Counselor. As such, the Agency dismissed that matter pursuant to 29 C.F.R. � 1614.107(a)(2)f for untimeliness. The Agency accepted the rest of the events for investigation.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to harassment as alleged.
This appeal followed. On appeal, Complainant asserted that the COS and ACOS applied different terms and conditions of employment on him compared to his peers. He argued that the Agency has ignored all the negative impact this position has had on him and the hardships he has experienced while still maintaining an exceptional level of service. Complainant indicated that he was not against the detail itself but only against the way in which it was carried out. For example, Complainant claimed that the proper documentation had not been done and it was extended without his consideration on the impact it would have on him personally. Complainant also raised the Agency's failure to investigate his 2012 claim of discrimination and his claims regarding mediation.
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").
Procedural Dismissal
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the Agency properly dismissed the instant issue. We note that Complainant alleged that he was subjected to discrimination when the Agency failed to mediate the matter. Complainant cannot bring a complaint regarding actions or statements made during mediation. See Nelson v. Dep't of Defense, EEOC Appeal No. 01A13907 (Sept. 25, 2001) (comments and actions made during a mediation session akin to actions during settlement negotiations). As such, we affirm the Agency's dismissal of this claim.
Complainant also alleged that the Agency improperly dismissed his claim of discrimination which occurred in 2012. EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Upon review, Complainant acknowledged that he did not raise this claim for fear of losing his employment with the Agency. Although he argued that the delay in contacting an EEO Counselor was due to his fear of retaliation, the Commission has previously held that fear of retaliation is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Simeone v. Dep't of the Navy, EEOC Request No. 05930973 (Jan. 25, 1994). Accordingly, the Agency's dismissal of Complainant's claim of discrimination in 2012 is affirmed.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As to claim (1), the COS explained that there had been an acting official to the Research and Development position since 2009 and they were informed that the person in that position intended to leave the position in a few months. The COS noted that Complainant had previously applied for the position but was not referred for further consideration. Based on strong recommendations, the COS met with Complainant to explain to him the opportunity. Complainant asserted that he was not interested in the position but the COS explained that the position was temporary and he would recommend a special monetary award.
In response to claim (2), the COS placed Complainant on a FPPE shortly before he went on detail. Complainant indicated that he was required to have an attending physician to sign off as the approver of reports dictated by any resident in diagnostic imaging. The COS noted that, over the course of two years, Complainant failed to complete reports in a timely fashion and was neglecting to channel the reports through the service committee as required. Because Complainant was failing to comply with an important criterion, the FPPE was put in place to ensure that Complainant completed the results to the COS's office. The COS noted that Complainant completed the evaluation while the COS was away on detail.
As to claim (3), the COS contacted Complainant to state that he did not want to pressure him into making a decision. However, the COS noted that Complainant needed to step up in order to serve in the Research and Development position. The COS stated that he could have directed Complainant to take on the position in question but preferred to wok collaboratively to get Complainant to fill the position without having to resort to a directed reassignment. As to claim (4), the ACOS sent Complainant multiple e-mails in order to clarify questions Complainant might have regarding the position in question. He wanted to make sure that Complainant would be able to make the assignment workable noting that Complainant was considered the best candidate for the Research and Development position. In the email exchanges with the ACOS, as alleged in claim (5), Complainant believed that he was not interested in the position and was concerned in the Agency changing its mind on him since he had previously applied for the position but was not selected. The ACOS denied Complainant's claim of breach of confidentiality raised in claim (6). The ACOS again tried to express to Complainant that he was viewed as the best candidate for the position. Then, on June 23, 2014, namely claim (7), Complainant received an email where the COS had declined the individual acting in the Research and Development position an extension to stay in that position until 2015. The COS noted that he was not allowed to keep research physicians beyond their temporary appointments because it could jeopardize ongoing research projects. In further email exchanges, Complainant asserted in claim (8) that the ACOS asserted that Complainant's questions about the position in question would preclude him from taking on the position on July 14, 2014. In claim (9), the ACOS emailed Complainant to prepare him to expect to assume the Research and Development position or he would face disciplinary action.
On July 21, 2014, Complainant was reassigned to the Research and Development position which was raised in claim (10). The Agency officials had shown that the acting individual's temporary assignment was coming to an end and that it was time to replace that individual. The COS and ACOS had explained to Complainant that he was the best qualified individual for the position in question and that all the service chiefs had taken turns in performing the Research and Development position on a temporary basis. Based on Complainant's previous application for the position in question, the Agency believed that the position was a good fit for him. Therefore, the Agency reassigned Complainant to the position in question.
Based on the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Therefore, we turn to Complainant to establish that the Agency's reasons constituted pretext for discrimination based on his national origin, age and/or prior EEO activity. Upon review of the record, we determine that Complainant has failed to do so. Complainant has provided no evidence to support his assertions that his protected bases were factors in the Agency's actions. Therefore, we conclude that Complainant has not established that he was subjected to disparate treatment in violation of Title VII and/or the ADEA.
Harassment
It is well-settled that harassment based on an individual's national origin, age, and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on national origin, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, to prove his harassment 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 national origin, age and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Upon review of the record, we find that Complainant has not shown that the alleged events occurred because of his national origin, age, and/or prior EEO activity. As such, we conclude that Complainant has not established that he was subjected to harassment in violation of Title VII or the ADEA.
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 no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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
November 9, 2017
__________________
Date
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.
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