Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20140120141713 (E.E.O.C. Dec. 4, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141713 Hearing No. 520-2013-00214X Agency No. 200H-0523-2012102537 DECISION On March 31, 2014, Complainant filed an appeal from the Agency’s March 14, 2014 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a probationary Air Conditioning Equipment Mechanic at the West Roxbury Campus of the Agency’s health care complex in Boston, Massachusetts. On July 2, 2012, he filed a complaint in which he alleged that the Air Conditioning equipment mechanic supervisor, his immediate supervisor (S1) and the Supervisory General Engineer, his second- line supervisor (S2) harassed him between January 30 and March 21, 2013, because of his disability and previous EEO activity. He identified four incidents,1 1 In his complaint, Complainant set forth six incidents. The EEO investigator assigned to the case consolidated her inquiry regarding incidents (4) through (6) into a single occurrence, which we will identify in this decision as incident (4). the details of which are described below. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 31, 2013 motion for summary judgment and issued a decision on February 27, 2014. The Agency 0120141713 2 subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Incident (1) – Reassignment to groundskeeping detail on January 30, 2012: S1 cited Complainant in a counseling memorandum for failure to follow instructions and endangering the safety of himself and another employee. Complainant was instructed to prepare three air conditioning units for freon recovery, but proceeded to charge the units himself. In so doing, he pierced the freon line, exposing himself and another mechanic to freon gas within a closed environment. In consideration of this incident, as well as a previous letter of counseling and an unsatisfactory mid-term probationary progress report, S2 placed Complainant on a 60-day detail to the groundskeeping crew. Investigative Report (IR) 112, 120, 126-27,167, 181, Incident (2) – Verbal abuse by S1 during probationary period: Complainant averred that S1 verbally abused him since he began his employment on April 11, 2011. He maintained that S1 used foul and demeaning language and constantly told him that he was “dumb” or “stupid.” S1 denied that he used foul language when addressing his subordinates, but acknowledged that he pointed out Complainant’s ongoing performance deficiencies. In a counseling memorandum dated July 28, 2011, S1 noted that after six weeks of training, Complainant’s knowledge of air conditioning equipment was not adequate to allow him to be placed on a shift on his own, and that his trouble-shooting skills were flawed and needed improvement. S1 averred that he wanted to terminate Complainant in August 2011, but was told by S2 to retrain him. IR 112- 13, 121-23. Incident (3) – Deliberate exposure to poison sumac by management on March 8, 2012: Complainant contended that while he was assigned to groundskeeping, the crew supervisor ordered him to clean an area infested with poison sumac. As a result of the exposure, Complainant developed a rash so severe that he had to be hospitalized for four days and kept out of work for another week. The Grounds-keeping Supervisor averred that he specifically instructed him not to venture into the overgrowth where the poison sumac was located, and that Complainant disregarded those instructions. IR 113-114, 129, 136-37. Incident (4) – Termination during probation, March 21, 2012: Complainant had been hospitalized for his rash on March 10th. The treating physician recommended that he return to work on March 22nd. On March 19th, the Grounds-keeping Supervisor called Complainant and asked him how he was feeling. The following day, Complainant returned to work and attempted to resume his duties, but the rash was still too severe. The Grounds-keeping Supervisor suggested that he claim workers’ compensation and accompanied him to S2’s office to discuss the matter. Shortly after he arrived at S2’s office, S1 walked in and together, S1 and S2 presented Complainant with a notice of termination that had been dated March 14th. S2 averred that the notice had also been sent to Complainant’s home address. According to the notice, the Chief of Engineering Services, S2’s supervisor, had recommended that Complainant be terminated for unacceptable performance during his probationary period. The notice cited the counseling memo issued in July 2011, the unsatisfactory performance 0120141713 3 appraisal, and the safety incident that occurred in January 2012. IR 115-16, 122-23, 129-30, 138-39, 144-46, 149, 154-55, 168, 170-78, 199 ANALYSIS AND FINDINGS To warrant a hearing on his harassment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether, because of his disability or previous EEO activity, S1 or S2 subjected him to conduct so severe or pervasive that a reasonable person in his position would have found that conduct to be hostile or abusive. See 29 C.F.R. § 1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). The motives of these officials for their actions, not their business judgment, are the focus of our inquiry. Glass v. United States Postal Serv. , EEOC Appeal No. 07A50068 (June 15, 2006). The affidavits of S1, S2, and the groundskeeping supervisor, together with the counseling memoranda, the mid-term performance appraisal, and the notice of termination, paint a compelling picture of Complainant’s performance deficiencies throughout his probationary period. While Complainant expressed his belief that the conduct of S1 and S2 in the foregoing incidents constituted discriminatory and retaliatory harassment, he has not presented sworn statements from other witnesses, documents, or any other evidence that contradicts the affidavit testimony given by S1, S2, and the Grounds-keeping Supervisor during the investigation. We therefore find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to whether S1 or S2 were motivated by unlawful considerations of his disability or previous EEO activity when they took the actions at issue in the instant complaint. We discern no basis to disturb the AJ’s decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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. 0120141713 4 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and 0120141713 5 the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date December 4, 2014 Copy with citationCopy as parenthetical citation