[Redacted], Alonzo N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2020005502 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alonzo N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005502 Hearing No. 570-2019-00220X Agency No. 2004-0688-2018100099 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 19, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker Foreman at the Agency’s Medical Center in Washington, D.C. On November 27, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (post-traumatic stress disorder (PTSD)) and in reprisal for prior protected EEO activity, when: 1. on or around January 12, 2017, an Administrative Dietitian (AD) issued Complainant a proposed reprimand; 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. 2020005502 2 2. on or around June 5, 2017, AD issued Complainant a proposed reprimand; 3. on September 9, 2017, AD denied Complainant’s reasonable accommodation request; and 4. on September 25, 2017, AD told Complainant not to help other employees by getting food onto trays and delivering it where it was needed. In the partial acceptance letter, the Agency dismissed the hostile work environment claim because events 1 and 2 did not have an adverse impact on Complainant’s work environment; and event 4 was an exercise of supervisory duties that would not cause an employee to believe it to be an interference of work performance, nor discourage a reasonable person from filing an EEO complaint. The Agency alternatively dismissed events 1 and 2 as prospective actions, pursuant to 29 C.F.R. § 1614.107(a)(5). The Agency accepted event 3 as a discrete claim for investigation. Report of Investigation (ROI) at 32. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency noted that the dismissal of events 1 and 2 as prospective actions was improper because Complainant alleged retaliation. However, the Agency found that this was a harmless error because the proposed reprimands were untimely, and not sufficiently close in time or related to the overall harassment allegation, and it affirmed their dismissal. The Agency then found that events 3 and 4 met the threshold for a cognizable harassment claim, and that the record was sufficient for adjudication. Regarding Complainant’s reasonable accommodation claim, the Agency noted that management officials put Complainant’s request on hold pending additional medical documentation. The Agency noted that, on October 10, 2017, Complainant provided a letter from a physician stating that Complainant would benefit from being reassigned to another department, but the physician did not provide a medical condition, limitations, or restrictions on Complainant’s ability to perform his current position. Further, the physician did not explain how a transfer to another position would alleviate a medical condition, limitations, or restrictions. As such, the Agency found that any delay was caused by Complainant’s failure to provide requested documentation. The Agency also found that Complainant’s request for a new supervisor was not required by the Rehabilitation Act, and that Complainant testified that he had no medical restriction or limitation that prevented him from performing the essential functions of his position. The Agency concluded that Complainant was not unlawfully denied a reasonable accommodation. 2020005502 3 The Agency also found that the reasonable accommodation claim may not be properly considered as evidence of harassment because it already determined that Complainant was not unlawfully denied a reasonable accommodation. For incident 4, the Agency determined that the instruction to allow other employees to work on trays was not sufficiently severe to rise to the level of unlawful harassment. Further, Complainant did not connect the incident to his disability or protected EEO activity, and he only provided his belief that he was treated differently than non-disabled employees who did not have prior EEO complaints. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of his appeal. The Agency opposed Complainant’s appeal. 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 (EEO MD-110), at 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”). Procedural Dismissals EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. 2020005502 4 The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Through his attorney, Complainant challenges the Agency’s procedural dismissal of events 1 and 2. While Complainant does not dispute the Agency’s determination that the events were not timely to constitute discrete claims, he asserts that they should be included in his hostile work environment claim because events 1 and 2 are related to events 3 and 4, which involved a single management official who engaged in harassing behavior, namely AD. However, AD informed the EEO Counselor that she did not issue the proposed reprimands and suggested that it may have been the Service Chief.2 ROI at 13. While Complainant alleged that AD gave him a letter of reprimand on June 18, 2017, he did not produce of copy of this letter or any other evidence to show that AD was the responsible management official for incidents 1 and 2. ROI at 14. As such, we find that Complainant’s allegation of a continuous pattern of harassment by AD is unsupported and AFFIRM the Agency’s procedural dismissal of incidents 1 and 2 pursuant to 29 C.F.R. §1614.107(a)(2). Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to provide him with a reasonable accommodation. A Program Specialist (PS) stated that Complainant submitted his reasonable accommodation request on June 24, 2016, and she requested clarification of his medical condition on July 7, 2016. 2 The EEO Counselor is to conduct a limited inquiry into a complaint, including obtaining enough information concerning the claim(s) and basis(es) so as to enable the agency to properly identify the legal claim raised if the individual files a complaint at the conclusion of the EEO counseling process. See EEO MD-110 at Chap. 2 § III.3. 2020005502 5 PS asserted that Complainant responded that he would seek clarification from his physician, but she never received clarification to proceed with his request. ROI at 91-4. AD averred that she had no role in processing Complainant’s reasonable accommodation request. ROI at 77. On appeal, Complainant argues that the Agency was “well-aware” of his medical condition. However, the Commission has found that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012). Here, Complainant testified that he had no restrictions related to the performance of his duties and he offered no explanation for his request for a reassignment due to a medical condition. ROI at 63. Further, Complainant does not dispute that he did not provide the requested medical documentation, and we find that he did not establish that he was entitled to an accommodation. See Chanelle B. v. Dep’t of the Army, EEOC Appeal No. 0120182515 (Nov. 5, 2019) (complainant’s failure to provide medical documentation caused a breakdown in the interactive process because the agency was unable to determine the duration and severity of the complainant’s symptoms or determine the effectiveness of the proposed accommodation); Carleen L. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120151465 (May 12, 2017) (agencies are required to engage in an interactive process with employees regarding reasonable accommodations, and employees who refuse to cooperate in that process are not entitled to an accommodation, citing Enforcement Guidance at Q. 6). As such, we find that Complainant did not establish that the Agency failed to provide him with a reasonable accommodation. Complainant also alleges retaliation when he was denied a reasonable accommodation. A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). It is undisputed that Complainant engaged in protected EEO activity when he requested a reasonable accommodation, and that PS was aware of his request. However, as noted above, PS did not deny Complainant’s request; rather, she put his request on hold while waiting for additional medical information. We find that Complainant’s failure to provide the requested documentation caused the “denial” of his reasonable accommodation request, and that he was the source of the alleged adverse treatment and not the Agency. As such, we find that Complainant did not establish that the Agency retaliated against him for his reasonable accommodation claim. 2020005502 6 Harassment As discussed above, we found that Complainant did not establish a case of disability discrimination or retaliation for claim 3. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that this action taken by the Agency was motivated by a protected category. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on disability, or in reprisal for protected EEO activity, for claim 3. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Even crediting Complainant’s assertion that he belongs to a protected class based on disability and protected EEO activity, and that he was subjected to unwelcome verbal conduct, we find that he presented no evidence that incident 4 was due to a protected category. On appeal, Complainant avers that AD’s action triggered his PTSD and that he lost consciousness. However, this does not prove that Complainant’s disability was the reason for AD’s instruction to Complainant that he not assist other employees. In addition, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Vet. Aff., EEOC Appeal No. 0120130465 (Sept. 12, 2014). In this case, there is no evidence that incident 4 was abusive or offensive, or taken in order to harass Complainant based on his disability. To ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory 2020005502 7 motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that AD’s instruction for Complainant to not assist other employees would not discourage a reasonable employee from engaging in protected EEO activity. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on disability, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020005502 8 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 July 11, 2022 Date