0120150415
04-27-2017
Roy 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
Roy F.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150415
Hearing No. 550-2014-00138X
Agency No. 200P-0612-2013102700
DECISION
On November 9, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which adopted an Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing finding that Complainant did not establish that he was subjected to discrimination, harassment or a constructive discharge.
ISSUES PRESENTED
The issues presented in this case are whether the AJ correctly issued a decision without a hearing; and whether Complainant established that he was subjected to discrimination, harassment or a constructive discharge.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Temporary Materials Handler, WG-05 at the Agency's Mather Hospital in Sacramento, California. Complainant was employed by the Agency for approximately five months. During that time, a female employee filed an EEO complaint against him where she indicated that Complainant sexually harassed her. Complainant maintained that this was not true as the female employee took his telephone and entered her telephone number. He invited her to dinner at his house and when he turned down her sexual advancements she became upset. The following day at work she filed a sexual harassment complaint against him. Complainant asserted that he did not sexually harass anyone. Complainant also asserted that everyone seemed to know about the EEO complaint and he was not sure if the EEO Director had discussed it with others or if other employees had heard his discussion through the EEO Director's walls. In addition, Complainant maintained that he was subjected to sexual harassment by the Assistant Chief (AC). Complainant explained that the AC was a woman that he dated in 2011. After their relationship ended, she helped him get his current position but thereafter she expected him to resume their relationship. Complainant indicated that he reported AC to her supervisor but no action was taken.
Further, Complainant alleged that he was harassed when numerous complaints about his work performance and his attitude where made. He indicated that he was subjected to reprisal when a close friend of AC's started to complain about his package delivery to her department. She complained to his supervisor that he did not complete the department log when making his deliveries. Also, Complainant maintained that AC became upset when he asked her for information that had been filed against him in the EEO complaint. She became upset and refused to talk about the complaint. Complainant also maintained that he was spoken to in a rude manner by a coworker and he was required to assist an ill coworker.
On May 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (light complexion black), disability (back impairment), and reprisal for prior protected EEO activity when management:
1. initiated an investigation into his alleged misconduct and held him in a paid, off-duty status pending the conclusion of the investigation; and
2. subjected him to a hostile work environment during his five-month tenure, forcing him to resign from his temporary position, effective July 13, 2013.
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 Administrative Judge. Complainant timely requested a hearing. When Complainant did not object,2 the AJ assigned to the case granted the Agency's July 1, 2014, motion for a decision without a hearing and issued a decision without a hearing on October 10, 2014.
The AJ found undisputed that during Complainant's five-month tenure in his temporary position several employees reported that they witnessed him engage in threatening and inappropriate conduct on numerous occasions. The record showed that on March 20, 2013, a Medical Technician complained that Complainant sexually harassed her by engaging in inappropriate behavior after he had been communicating with her via text messages. On April 29, 2013, the Associate Chief of Nursing Services also witnessed Complainant engaged in inappropriate conduct. She reported that she witnessed Complainant engage in a loud and aggressive confrontation with one of her subordinates (AC). When she asked him to step into the hallway to obtain more information about the situation; Complainant indicated that "I am not at liberty to talk to other people's supervisors." He referred her to his supervisor. She then reported his conduct to his supervisor. It was also noted that on June 6, 2013, Complainant engaged in a verbal confrontation with a Lab Technician when she asked about a delivery issue. Complainant became confrontational and later told her to come and pick up her own mail. Shortly thereafter, two other employees reported that they witnessed Complainant engage in confrontational behavior. They observed Complainant yelling at a worker for leaving the mail in the mailbox. On June 25, 2013, a System Analyst reported to management that Complainant engaged in egregious misconduct when she questioned him about his practice of picking up the packages before the normal 3:00 p.m. pick-up time. Complainant responded to her by saying, "F*** you, f*** all you bitches, you're nothing but a f****** bitch." According to the System Analyst, he walked away shouting the same words with his middle finger raised at her.
On June 28, 2013, Complainant was informed that the Agency was immediately initiating an internal investigation into reports that he had engaged in a pattern of disruptive, unprofessional and threatening behavior towards numerous employees. He was advised that he would be held in a paid, off-duty status pending completion of the investigation. On July 12, 2013, Complainant resigned from his temporary position, citing his apprehension that the Agency's internal investigation would result in termination and his belief that he had been subjected to harassment.
The AJ found that there were no material facts at issue as Complainant failed to identify any factual evidence which demonstrated that he was subjected to any discrimination or retaliation. The AJ determined that Complainant did not present any evidence that he was forced to resign because of any discriminatory or retaliatory factors. The AJ found that management's decision to investigate the complaints against him could not be construed as discriminatory harassment forcing his resignation. Further, the AJ found that Complainant did not present any evidence whatsoever that the behavior of the employees that he claimed offended him could be found to have been so offensive as to constitute a hostile work environment based on discrimination or retaliation. This behavior involved, questioning him about the mail, the mail log, or packages.
Likewise, the AJ found that Complainant did not show that he was subjected to unlawful harassment when he was asked to assist a coworker who was very frail because he was dying from cancer. Complainant asserted that he should not have been allowed to work in the mailroom. The AJ found that an instruction to extend kindness to a dying coworker was not harassment. Moreover, management indicated that it was explained to Complainant at the outset that there would be times when he would have to help his coworker. The AJ also found that Complainant did not show that he was subjected to harassment when an Administrative Assistant attempted to have Complainant follow proper delivery protocol.
Additionally, the AJ determined that because there was no persuasive evidence that Complainant was subjected to any unlawful harassment, his allegation that he was forced to resign failed. The AJ found that, at most, Complainant experienced interpersonal conflicts with numerous employees, management launched an investigation into this reported pattern of inappropriate and threatening behavior, and Complainant decided to resign rather than face the possibility of an eventual termination from his temporary position after the investigation. The AJ found that the evidence was therefore insufficient to sustain a claim of unlawful constructive discharge.
Finally, the AJ found that Complainant's ongoing consensual personal relationship was not evidence of sexual harassment. Complainant alleged that the Agency unlawfully discriminated against him by allowing him to be subjected to unlawful sexual harassment by AC. Specifically, Complainant alleged that she sexually harassed him March through April 2013, by sending him poems, expressing her love for him, and requesting a sexual relationship. The AJ found that based on her review of the record, such conduct was not welcomed. The AJ found that it was undisputed that Complainant and AC had previously engaged in a consensual relationship that ended in 2012. The record showed, however, that during the relevant time both Complainant and AC exchanged text messages and other communications of a personal, romantic, and sometimes sexual nature. The AJ found that Complainant sent Complainant numerous personal and sexual messages including a photo of his genitalia during the time period that he said he was being sexually harassed which showed that he voluntarily continued a consensual personal relationship with her. Accordingly, the AJ determined that Complainant failed to demonstrate that the Agency discriminated against him or subjected him to harassment.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant did not demonstrate that the Agency subjected him to discrimination or harassment as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).3
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ incorrectly found that he did not submit a response to the Agency's motion for summary judgment. He maintains that he submitted a response on July 10, 2014 to both the AJ and the Agency but their staff would not sign for the certified mail.
Complainant also asserts that his complaint involves his being sexually harassed by a coworker who came to his house for dinner and sex and when he refused she filed an EEO complaint against him the next day. He also maintains that he was sexually harassed by AC. According to Complainant, AC had a history of sexual harassment against African Americans and management failed to take action and has been covering it up.
In response, the Agency maintains that the AJ correctly determined that the evidence did not show that Complainant was subjected to discrimination or harassment.
STANDARD OF REVIEW
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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Upon review, we find that the requirements for summary judgment have been followed. We find that no material facts are at issue and that the AJ properly issued a decision without a hearing.
Disparate Treatment
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal and discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. There was an investigation into allegations of misconduct by Complainant. During the investigation, Complainant was in a paid, off-duty status. The investigation was initiated due to numerous complaints made by Complainant's coworkers regarding his confrontational behavior. Complainant explained his behavior by indicating that he was an "Alpha-male." We find that this statement does not indicate that the Agency's legitimate, nondiscriminatory reason were a pretext for discrimination. In fact, we find no persuasive evidence that revealed that discriminatory animus was at play regarding the decision to place him on off-duty status and to conduct an investigation into his actions. The Agency had an obligation to foster a culture whereby its employees could bring such misconduct to the attention of management and have confidence that such complaints would be addressed appropriately.4
Hostile work environment
Harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance No on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) that 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 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. By way of contrast, in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Upon review, we find that the preponderance of the evidence and the totality of the circumstances do not indicate that Complainant established his claim that he was subjected to a hostile work environment based on disability, sex, color, race, or reprisal. With regard to Complainant's claim of hostile work environment, we make the following determinations:
I. Elements 1, 2, and 3 - Unwelcome Conduct based on Disability, Sex, Race, Color, and Reprisal
Regarding element 1, the record is undisputed that Complainant is a member of statutorily protected classes. Regarding elements 2 and 3, we find that the record does not indicate that he was subjected to unwelcome verbal or physical conduct involving his protected classes or that any references were made to them.
II. Element 4 - Unwelcome Conduct Sufficiently Severe or Pervasive
Regarding element 4, in determining whether an objectively hostile or abusive environment existed, the trier of fact should consider whether a reasonable person in the Complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris, 510 U.S. at 21. Also, the trier of fact must consider all the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
In the instant case, we find that Complainant's allegation that others asking him questions about his mail delivery, requesting that he log the mail in properly, being questioned about the mail delivery times, and being asked to show kindness to a coworker were incidents that were sufficiently severe, as a matter of law, to establish a claim of hostile work environment harassment. We find that Complainant has presented no evidence that he was subjected to a hostile work environment. In fact, the evidence shows that Complainant was the one accused of acting in an unprofessional and hostile manner. We find the incidents raised by Complainant to be work related incidents that do not rise to the level of a hostile work environment.
Regarding Complainant's contentions on appeal, we find that other than his conclusory statements he has presented no persuasive evidence that he was subjected to sexual harassment either by his co-worker or by a management official. With respect to his co-worker, the record indicates that after allegations were made against Complainant, he became so upset that he yelled and screamed at the EEO personnel regarding the matter. Complainant left his position prior to a determination by the Agency of any wrong doing.
Further, with regard to his complaint of sexual harassment by AC, we find that Complainant did not demonstrate that her behavior was unwelcomed based on the documentation contained in the record of his participation in emails, telephone calls, and explicit text messages with explicit photos during the same time that he alleges he was being sexually harassed. Moreover, the record shows that when Complainant complained to management that he was being sexually harassed by AC, management immediately went to HR and EEO to determine how to handle the situation. AC was told to stay away from Complainant. She was not in his chain of command. Before anything else could be done, Complainant was placed on off-duty status because of his behavior with his coworkers and management as outlined above. The record does not show that Complainant filed an EEO complaint regarding his allegations concerning AC. Finally, we find that Complainant did not provide any evidence that AC had habitually sexually harassed African Americans.
Constructive Discharge
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17. 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant failed to establish that his resignation was the result of discriminatory conduct that created working conditions that a reasonable person in his position would have found intolerable. As such, we find that Complainant did not establish that his resignation constituted a constructive discharge.
CONCLUSION
Accordingly, we AFFIRM the AJ's finding that Complainant did not demonstrate that he was subjected to discrimination, harassment, or a constructive discharge.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
__4/27/17________________
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.
2 Complainant maintained that he submitted a response to the Agency's motion for summary judgment on July 10, 2014 but maintained that both the AJ's staff and the Agency's staff refused to sign for the certified mail.
3 The Agency asserts that a final order was issued but it did not produce a copy for the record.
4See Rogers v. Department of Defense, EEOC Request NO. 05940157 (February 24, 1995)(the Commission found that a claim which arose from the agency's investigation of a complaint of harassment, failed to state a claim, since the agency was legally obligated to investigate a complaint of harassment).
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