Edmond F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 7, 2019

2019000145 (E.E.O.C. Jun. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Edmond F.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019000145

Hearing No. 510-2017-00325X

Agency No. 200I-0573-2015105138

DECISION

On August 13, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the July 19,
2018 decision of an EEOC (AJ), concerning an 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. 2

BACKGROUND

During the period at issue, Complainant worked as an Advanced Medical Support Assistant at
the Agency’s Villages Outpatient Clinic in Gainesville, Florida.

On November 25, 2015, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected him to a hostile work environment and discriminated against him based on
disability (insulin-dependent diabetic) 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.

2 The Agency did not issue a final decision following the AJ’s decision. The AJ’s decision of no
discrimination therefore became the Agency’s final action, pursuant to 29 C.F.R. § 1614.109 (i).
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1. on August 6 and 7, 2015, 5, he was charged being Absent Without Official Leave
(“AWOL”); and,

2. on August 12, 2015, he was forced to resign (constructive discharge) after the
Administrative Officer threatened to fire him.

The Agency accepted the claims for investigation. In brief, the investigative record reflects the
following pertinent matters relating to the claims.

On July 24, 2015, the Chief Medical Officer wrote a letter to Complainant explaining his rights
to be absent from work due to his medical condition under the Family and Medical Leave Act
(“FMLA”). The Chief Medical Officer advised Complainant that he had almost exhausted his
yearly FMLA allotment. The letter further advised Complainant that he could be charged with
AWOL if there was a need for workload coverage and he continued to be absent. The Chief
Medical Officer referred Complainant to the contacts for the Voluntary Leave Transfer Program
and the Agency’s reasonable accommodation program if he wished to avail himself of either.
Complainant did not contact either program.

On August 6 and 7, 2015, Complainant was marked AWOL. The Administrative Officer advised
Complainant that he was marked AWOL because he was needed at work, did not show, and did
not have any more FMLA-protected leave to use at the time.

The record contains two reports from fellow staff nurses in which they expressed concerns with
Complainant’s frequent unscheduled absences. The nurses stated that due to Complainant’s
frequent absences, “PACT team 6’s continuity and timeliness of scheduling patients and work
flow is greatly affected.” The report detailed further how Complainant was needed in the unit,
and that continued unscheduled absences placed a great deal of strain on fellow staff.

According to Complainant, on August 10, 2015, the Administrative Officer told him that if he
were to take another day off, she would fire him, and take his retirement away. Complainant
asserted that the Administrative Officer had previously threatened other employees as well. The
Administrative Officer, however, denied ever making such a statement to Complainant, or any
other employee. The Administrative Officer also stated that she did not have firing authority.

On August 12, 2015, Complainant resigned from his position as an Advanced Medical Support
Assistant. In his resignation letter, Complainant stated that he was unfairly charged with AWOL
when he had a family emergency. Further, Complainant stated that before, “any one tries
anything else to get me FIRED, I am resigning, now. My retirement is mine, and it will remain
that way.”

Following the investigation and a number of procedural complications, Complainant’s complaint
was adjudicated by an EEOC Administrative Judge (AJ). On July 19, 2018, the AJ issued her
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decision by summary judgment in favor of the Agency. 3 The AJ determined that there were no
material facts in dispute, and that Complainant failed to demonstrate that he had been
discriminated as alleged.

On August 13, 2018, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

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. 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 does not sit as a fact finder. Id. The evidence
of the nonmoving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the nonmoving party's favor. Id. A disputed 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, summary
judgment is not appropriate. In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination that the record has been
adequately developed for summary disposition.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Here, Complainant
has failed, either at the hearing stage or on appeal, to point to any particular evidence in the
investigative file or other evidence of record that indicates such a dispute. Therefore, we find no
error in the AJ’s decision to adjudicate this case without a hearing.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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 Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,

3 A previous decision was issued by the EEOC AJ on July 6, 2028. However, that decision
contained an incorrect hearing number. The EEOC AJ re-issued a corrected decision on July 19,
2018.
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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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim
1, the record indicated that on or about July 24, 2015, the Chief Medical Officer had written to
Complainant informing him that he had nearly exhausted all of his FMLA allotment. The letter
further informed Complainant that he may be charged AWOL if he took further unscheduled
leave and there was a need for workload coverage. The letter also referred Complainant to the
Voluntary Leave Transfer Program and Reasonable Accommodation. Complainant chose not to
contact either service for additional information or aid. Nonetheless, on August 6, and 7, 2015,
Complainant took unscheduled leave. Complainant’s unscheduled absence resulted in
understaffing. Additionally, Complainant’s FMLA allotment was exhausted, and he was
therefore marked as AWOL. There is no evidence that this action was taken based on
Complainant’s disability.

With regard to Complainant's claim asserting a discriminatory constructive discharge, he must
prove that the Agency, motivated by discriminatory animus, created working conditions that
were so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position
would feel compelled to resign. Doe v. Social Security Administration, EEOC Appeal No.
01A114791 (Feb. 21, 2003). Specifically, Complainant must show that: (1) a reasonable person
in her/his position would have found the working conditions intolerable; (2) conduct which
constituted prohibited discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable working conditions. Greer
v. United States Postal Service, EEOC Appeal Nos. 01976756, 01976792 (December 29, 2000).
Based on the record, we find that Complainant failed to establish that he was subjected to such
intolerable working conditions that he was forced to resign.

Here, the record supports the AJ’s determination that the Agency’s proffered reasons regarding
the claims were legitimate and non-discriminatory. Complainant did not provide persuasive
arguments, below or on appeal, that the Agency’s actions were pretext for discrimination.

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We AFFIRM the AJ’s finding of 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
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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

June 7, 2019
Date