Felton M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 5, 2019

0120171709 (E.E.O.C. Mar. 5, 2019)

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

Felton M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120171709

Agency No. 200I-0619-2016102309

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 13, 2017, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Material Handler,
WG-05, at the Agency’s Central Alabama Veterans Health Care System in Montgomery,
Alabama.

On February 24, 2016, Complainant contacted an EEO Counselor alleging discrimination based
on disability and in reprisal for prior EEO activity when: he was issued an absent without official
leave (AWOL) notice for his leave he took for his surgery in August 2015; and he was
terminated due to that AWOL. Unable to resolve the matter informally, Complainant filed his
complaint on April 3, 2016. The Agency framed the claims as whether Complainant was

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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discriminated against based on disability (hearing loss and work-related injury) and in reprisal
for prior EEO activity when he was subjected to a hostile work environment in that:

(1) In August 2015, he was charged AWOL;

(2) On December 15, 2015, his third level supervisor (S3) intentionally provided false
information used to terminate him by stating in a Letter of Counseling that he was
charged AWOL on December 4, 2015;

(3) On January 7, 2016, his first line supervisor (S1) emailed the Employee Health Nurse
Practitioner requesting past medical information regarding his work-related injury;

(4) On January 7, 2016, S3 failed to accommodate his work restrictions;

(5) From January 7, 2016, through January 15, 2016, he was charged with AWOL; and

(6) On February 19, 2016, he was terminated during his probationary period.

On June 14, 2016, the Agency dismissed claims (1) and (2) due to untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2). Therein, the Agency accepted claims (4) – (6) as
discrete acts and accepted a harassment claim consisting of claims (1) – (6).

After completion of the investigation of the accepted claims, Complainant requested a final
Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency
then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

Complainant has not challenged the framing of the complaint. After a review of the record,
assuming arguendo that Complainant had established a prima facie case of discrimination, we
find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged
incidents. On March 8, 2015, Complainant was hired as a Food Service Worker, WG-3, a
career-conditional appointment subject to a one-year probationary period. The record indicates
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that he was promoted as a WG-5, Materials Handler on July 12, 2015. As a Materials Handler,
Complainant’s duties included: receiving, shipping, storing, and issuing merchandise; operating
forklifts; and driving truck daily between warehouse, temporary storage areas, and hospital.
Complainant indicated that his hearing loss was diagnosed in 2007, while he was in the military.
He wore a hearing aid and his hearing condition did not affect his ability to perform his duties.
On January 6, 2016, he sustained a temporary work-related injury from repeatedly lifting
equipment.

Initially, Complainant subsequently withdrew claim (1). Thus, we will not address claim (1) in
this decision. Complainant stated that he was not charged AWOL in August 2015.

Regarding claim (2), Complainant’s then supervisor, now his second level supervisor (S2),
indicated that he issued Complainant the December 15, 2015 counseling memo (and not AWOL)
because on December 4, 2015, he left his duty station during his scheduled shift without
notifying his supervisor and did not return to work. Complainant did not contact an EEO
Counselor regarding the incident until February 24, 2016, which was beyond the 45-day time set
by the regulations. Complainant does not present adequate justification to warrant an extension
of the applicable time limit for contacting an EEO Counselor. Thus, we find that the Agency
properly dismissed claim (2) due to untimely EEO Counselor contact. 29 C.F.R.
§ 1614.107(a)(2).

Regarding claim (3), S1 denied he asked the Employee Health Nurse Practitioner for
Complainant’s past medical information. Rather, indicated S1, since Complainant never asked
for his approval of leave for January 7 - 18, 2016, or the nature of his injury and no CA-1 or CA-
2 had been completed, S1 did not know how to categorize his leave. S1 stated that he thus
contacted the Nurse for information on the nature of the illness/injury and to inquire if the Nurse
would fill out Complainant’s CA-1 and CA-2 forms. The Nurse did not give S1 any information
about the injury and told S1 that Complainant needed to report back to S1 to complete the forms.
S1 stated that he then contacted Complainant and asked him to fill out the forms, as discussed in
claim (5).

Regarding claim (4), Complainant clarified the claim that it was S1 and S2, not S3, who failed to
accommodate his work restrictions. The record indicates that based on the Nurse’s
recommendation, Complainant was excused from work from January 7 to 18, 2016, due to work
injury. On January 19, 2016, Complainant returned to his duty with restrictions to avoid neck
and shoulder stress with no lifting, pushing, or pulling over five pounds, limited walking, no
carrying over five pounds, and no stooping, kneeling or overhead work. In accordance with the
foregoing restrictions, Complainant was thus assigned to light duty, i.e., taking labels off from
equipment and placing the labels in a container. Furthermore, despite Complainant’s claim, S2
denied saying he would not have hired Complainant if he knew he was a disabled veteran.
Complainant acknowledged that S2 and Human Resources knew he was a disabled veteran and
he was hired by the Agency under veteran preference. The record indicates that on February 16,
2016, the Nurse issued her Report of Employee’s Emergency Treatment indicating that
Complainant was able to return to work with no restrictions on February 22, 2016. Complainant
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has failed to specifically indicate that he was actually forced to work beyond any claimed
restrictions and there is no evidence that he did actually work beyond any restrictions.

Regarding claim (5), S1 indicated that on January 7, 2016, he called Complainant to come in and
to complete the CA-1 and CA-2 forms. And, stated S1, the next day on January 8, 2016,
Complainant did come in and told S1 that he had already gone into the system and completed the
forms. S1 indicated that S1 later determined that the forms were not in the system and he was
still unclear on the nature of Complainant’s illness/injury. After consulting with S2, stated S1,
Complainant was charged with AWOL for January 7 – 18, 2016.

Regarding claim (6), the record indicates that on February 19, 2016, the Agency’s Chief Human
Resources Management Services issued Complainant a notice of termination during probationary
period for his failure to follow instructions on notifying his supervisors prior to leaving his work
place. Therein, the Chief cited Complainant’s December 15, 2015 counseling, described in
claim (2), and AWOL, described in claim (5). The record indicates that Complainant was issued
the December 15, 2015 counseling memo because on December 4, 2015, he left his duty station
during his scheduled shift without notifying his supervisor and did not return to work.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Here, we note that Complainant has not claimed that he was denied a
reasonable accommodation for his hearing conditions. We further note that he was
accommodated for his temporary injury of January 2016. Upon review, we find that
Complainant failed to show that he was treated less favorably than a similarly situated employee
under similar circumstances or that the Agency’s reason for terminating him during his
probationary period was a pretext for discrimination. Regarding his claim of harassment,
considering all the events in the complaint, we find that Complainant failed to establish that it
was related to any protected basis of discrimination. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as he
alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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:
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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
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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

March 5, 2019
Date