0120151379
07-20-2017
Aron J.,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
Aron J.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151379
Agency No. 200P-0649-2013101838
DECISION
On February 28, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 5, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that he was subjected to discrimination, harassment, or denied a reasonable accommodation.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant was not subjected to discrimination, a hostile work environment, or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety Manager II, GS-12 at the Agency's Prescott VA Medical Center in Prescott, Arizona. On March 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (Caucasian), national origin (Native American), disability (physical and mental), and age (52) when:
Claim A:
1. On December 12, 2012, his supervisor, the Facility Manager (FM) issued him a Notice of Proposed Suspension.
2. On December 13, 2012, FM issued him a written direct order, detailing him to a non-supervisory position, after an allegation of work place violence, pending investigation into this incident.
3. On December 31, 2012, FM issued him a fourteen (14) day Suspension.
4. On February 4, 2013, FM issued him an admonishment charging him with three specifications of careless or negligent workmanship.
5. On February 19, 2013, FM issued him a letter placing him on sick leave certification for abuse of leave.
6. On April 2, 2013, FM issued him a letter of expectations regarding needed specific performance improvements.
7. On May 2, 2013, FM issued him a Notification of Unacceptable Performance/Opportunity to Improve.
8. On September 19, 2013, FM rated him as Unsuccessful.
Claim B:
Complainant alleged that he was subjected to a hostile work environment, based on his national origin (Native American), disability, and age (52) when, in addition to the above incidents set forth in Claim A, FM made repeated derogatory comments regarding his national origin and age between December 2012, and September 2013.
Claim C:
Complainant alleged that he was subjected to discrimination based on his disability (hearing loss) when the Agency failed to provide him a reasonable accommodation by requiring his supervisor to put all instructions in writing.
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. 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 discrimination, harassment, or denied a reasonable accommodation as alleged. Specifically, with respect to Claims A1 - A3 (proposed suspension, non-supervisory detail, 14-Day Suspension), management asserted that Complainant was disciplined solely for performance and conduct related issues. FM explained that Complainant's suspension, and removal of supervisory duties, was as a result of a fact-finding inquiry that concluded that Complainant was the aggressor in an incident between himself and a coworker. Complainant denied that he was the aggressor but three witnesses reported that Complainant escalated the altercation, and engaged in actions that attempted to engage in a physical altercation. FM maintained that he held Complainant to a higher standard given the fact that he was a supervisor. Additionally, FM noted that engaging in physical confrontations was especially inconsistent with Complainant's position as a Safety Manager. Further, due to the serious nature of the allegations, he stated he also suspended Complainant's supervisory authority.
With regard to Claims A4, A6, and A7 (admonishment, letter of expectations, and the PIP), the Agency maintained that Complainant had multiple performance problems which were documented beginning in February 2013. FM indicated that initially, Complainant was issued an admonishment, for failure to provide written reports on time and for failure to ensure those reports were properly edited. FM stated that performance issues regarding Complainant's primary duties were again documented on April 2, 2013. On May 2, 2013, he was placed on a PIP for the same issues. FM explained that the sole reason for issuing both of these notices, was Complainant's failure to meet critical elements of his job. Notably, Complainant failed to complete OSHA reports on time, and failed to maintain relationships with managers of other divisions. These actions affected the overall operations of the division.
Regarding Claim A5 (sick leave certification), the Agency maintained that Complainant had a pattern of using sick leave before or after annual leave or days off. FM stated that he believed that Complainant was calling in sick, instead of using annual leave, and that this was an abuse of sick leave policies. Therefore, FM indicated that he required Complainant to provide a doctor's note, documenting that he had an acceptable reason for using sick leave, before FM would approve Complainant's sick leave request.
The Agency found that Complainant failed to show that the stated nondiscriminatory reasons were pretext for discrimination.
With respect Complainant's claim that he was denied a reasonable accommodation, the Agency noted Complainant's allegation that he suffered from tinnitus and high frequency hearing loss. The Agency maintained that Complainant was unable to establish that he was a qualified individual with a disability, for the purposes of his reasonable accommodation claim. The Agency indicated that following an independent medical assessment, an audiologist found that Complainant's normal range of hearing was unaffected. She specifically stated that there was no need to provide an accommodation to Complainant, and that written instructions, specifically, were unnecessary. The audiologist reported that Complainant's ability to hear and converse in the workplace would be unaffected, although good communication skills, as with any employee, were always advised. The audiologist stated that Complainant's high frequency hearing loss and tinnitus did not impair his ability to engage in normal conversation, or perform his job.
Based on the evidence in the record, the FAD determined that Complainant failed to establish that he was wrongfully denied a reasonable accommodation, as alleged.
Finally, with respect to Complainant's harassment claim, Complainant alleged that he was subjected to harassment based on his age, race, disability and his national origin. In support of this allegation, Complainant recounted numerous incidents where FM made comments regarding his age, such as calling him an "old fart," an "old fuck," "worn out," and "weak," among other statements. FM also referred to "the tribe" as "drunk," and "incompetent." Complainant recounted that FM frequently involved attacks towards him based on his age and/or national origin. In support of Complainant's claims, a coworker indicated that FM on multiple occasions made statements about Complainant. The coworker indicated that on at least one occasion, FM's behavior towards Complainant was so severe that he was "fearful, uncomfortable and concerned" for Complainant. FM maintained that the coworker also filed a complaint against him and he believed that Complainant and several of his "buddies," were working together to lie about how he treated them. FM denied making any derogatory statements against Complainant, based on his age, race, disability or national origin. The Agency conducted an investigation but was unable to find evidence that FM made any statements that could be construed as discriminatory in nature.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he disagrees with the Agency's assessment that because of his Post Traumatic Stress Disorder (PTSD) he did not understand FM's jokes. Complainant contends that these jokes were offensive and FM was notified that they were. Complainant maintains that he is one of several employees that have filed discrimination complaints against FM for yelling, cursing and making threats. He contends that the Agency has not taken appropriate actions and nor have they responded to his requests. Complainant asserts that the executive leadership condoned FM's creation of a hostile work environment.
ANALYSIS AND FINDINGS
Standard of Review
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").
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 discrimination as to all bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as listed above and Complainant did not demonstrate that the nondiscriminatory reasons were pretext for discrimination. We find that Complainant does not deny that there were problems with his performance, that he engaged in an altercation with an employee, that he abused leave, or that he engaged in any of the other conduct for which he was accused. We also find no persuasive evidence demonstrating that his protected bases were considered regarding these incidents. Therefore, based on the record before us, we are not persuaded that Complainant has shown that FM's conduct was based on his race, national origin, age, disability or prior protected EEO activity.
With regard to Complainant's hostile work environment claim, we find that with respect to Claims A1 - A-8, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that Claims A1 - A8 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With respect to his assertion that FM made repeated derogatory comments regarding his national origin and age between December 2012, and September 2013, we note the conflict between Complainant and his co-worker who indicated that FM made comments regarding Complainant's age and national origin, and FM and the Agency's investigation indicating that no such comments were made. Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Assuming for purposes of this decision that age or national origin based comments were in fact made, we find no persuasive evidence that it rose to the level of severity or pervasiveness required to establish a hostile work environment. Title VII was not intended to be a general civility code, nor does it exist to police all impolite workplace exchanges. Rather, it exists to protect employees from treatment, based on their membership in a protected class that is so severe or pervasive that it alters the terms and conditions of their employment. We find that Complainant has not met this standard.
Finally, we find that even if we assume arguendo that Complainant is a qualified individual with a disability, he did not demonstrate that the accommodation that he requested was necessary for him to perform the essential functions of his position. An independent medical assessment by an audiologist found that Complainant's normal range of hearing was unaffected by his working conditions and that there was no need to provide an accommodation to Complainant. The audiologist reported that Complainant's ability to hear and converse in the workplace would be unaffected, and that written instructions were unnecessary. Complainant provided no evidence to contradict these medical findings.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination, harassment, or was denied a reasonable accommodation.
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
_7/20/17_________________
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.
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0120151379