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

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2021005085 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005085 Hearing Nos. 490-2016-00094X; 451-2016-00207X; 490-2017-00152X Agency Nos. 2003-0010-2015103173; 2003-0010-2016100187; 2003-0010-2016102280; 2003-0010-2016103084 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 12, 2021 final order concerning his equal employment opportunity (EEO) complaints 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, GS-1102-13, at the Agency’s Central Network Contracting Office in North Little Rock, Arkansas. On August 5, 2015, Complainant filed an EEO complaint (Agency No. 2003-0010-2015103173) alleging that the Agency discriminated against him on the bases of race (African-American), sex 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. 2021005085 2 (male), and disability (physical) when management failed to respond to his request for a reasonable accommodation. On January 7, 2016, Complainant filed a second EEO complaint (Agency No. 2003-0010- 201100187) alleging that the Agency discriminated against him on the bases of race, color (black), age, disability, and in reprisal for prior protected EEO activity when, on October 6, 2015, Complainant learned that the Director of Contracting (S1), failed to select him for the position of Supervisory Contract Specialist (Division Chief), under Vacancy Announcement No. SAOC16-SJB-15-VO1461254. On March 24, 2016, Complainant filed a third EEO complaint (Agency No. 2003-0010- 2016102280) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race, disability, and in reprisal for prior protected EEO activity) as evidenced by multiple incidents including, inter alia: 1. On January 6, 2016, S1 rated Complainant “Fully Successful” on his annual performance appraisal; 2. On January 7, 2016, the Supervisory Contract Specialist (S2) directed Complainant to go home after Complainant fell at work and told Complainant to call him when Complainant got home, or he would face disciplinary action; 3. On January 14, 2016, the Deputy Director of Contracting (S3) and other management officials denied Complainant’s request for a reasonable accommodation; 4. On April 12, 2016, Complainant’s request for advanced sick leave was denied; 5. On April 22, 2016, Complainant was threatened with disciplinary action for forwarding an email to his subordinate employees about the Fiscal Year 2016 Federal Employee Viewpoint Survey; 6. On April 28, 2016, Complainant’s request for advanced sick leave was again denied; 7. On May 4, 2016, Complainant was issued an admonishment for failure to follow instructions; 8. On May 6, 2016, Complainant’s request for a reasonable accommodation to telework due to medication he was taking was denied; and 9. On May 10, 2016, management ordered Complainant to return to duty because they deemed his medical condition as being “minor injuries. On July 27, 2016, Complainant field a fourth EEO complaint (Agency No. 2003-0010- 2016103084) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race, age, disability, and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia: 10. In January 2016, the Agency failed to provide him a copy of the investigative report concerning an internal fact-finding in his hostile work environment claim; 2021005085 3 11. On June 18, 2016, S1 issued Complainant a proposed suspension for violating the Privacy Act and other laws and regulations pertaining to disclosure; 12. On January 30, 2017, management decided to issue a 14-day suspension; 13. On July 20, 2016, management denied his request to telework three days per month for four to six months from San Antonio as a reasonable accommodation; and, as amended, 14. Beginning on or about January 12, 2017, S2 (who had been promoted to the Division Chief, NCO-16, Division II) asked Complainant to provide him a daily report identifying the status of the actions within his team that were worked on and completed; 15. On or around January 31, 2017, management denied his requests for reassignment as a reasonable accommodation; 16. On February 2, 2017, Complainant was involuntarily detailed to a position of Procurement Technician; 17. In February 2017, management denied Complainant’s training requests; and 18. On March 3, 2017, the now Division Chief (S2) discredited Complainant when he falsely alleged that a contractor contacted the Director to complain or raise concerns about Complainant’s work. The pertinent record shows that Complainant’s duty station was in Little Rock, Arkansas. He held a supervisory position, for which his essential duties required his presence in Little Rock. He experienced complications from several chronic medical issues involving his back, shoulder and knees. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the matters consolidated the complaints for a hearing. The AJ held a three- day hearing on August 4, 5, and 7, 2020, and issued a bench decision on August 25, 2020, finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, with respect to Complainant’s reasonable accommodation claim in the first complaint, the AJ credited the testimony of the management officials who testified that the essential functions of Complainant job as a supervisor were not compatible with 100 percent telework. The AJ reasoned that Complainant wanted to be allowed to work fulltime in San Antonio so he could see his doctor, who was a primary care physician. The AJ found the Agency offered him an alternative reasonable accommodation, including an ergonomic assessment/workstation and protected leave. Complainant rejected the Agency’s offered alternative accommodations and failed to participate in the interactive process with the Agency. The AJ noted that nothing in the record indicated that there was ever a need for full-time telework or that full-time telework from a remote location from where the job site was located was required as a reasonable accommodation. Complainant later requested full-time telework again and the Agency offered alternative accommodations which Complainant continued to reject. 2021005085 4 Complainant made a third request for full-time telework and the Agency offered alternative accommodations including an ergonomic assessment/workstation, telework five days per pay period, and a first-floor office. Complainant again rejected these offered accommodations. As a result, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act in the first complaint. Regarding the second complaint, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, the selecting official testified that the interview panel identified the two top candidates based on resumes and telephonic interviews. Complainant was not selected for further consideration by the panel. The selecting official ultimately selected the selectee based on his stronger interview and desired experience at the Agency and the Corps of Engineers. With respect to the third complaint, the AJ found that the alleged incidents were insufficiently severe and pervasive to establish a hostile work environment. In addition, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding his appraisal, Complainant’s supervisor testified that he allowed Complainant to submit a statement about his performance, but he ultimately could not find support for a rating above “Fully Successful.” With respect to Complainant’s fall at work, management explained that after contacting Employee Relations, the best course of action was to have Complainant go home. Complainant objected, and management responded that he could face disciplinary action if he did not follow the instruction to go home. Ultimately, no discipline was issued. As to his reasonable accommodation request, the AJ again noted that Complainant’s request was denied for the identical reasons noted above. Regarding the denial of advanced sick leave, management testified that they followed the applicable rules and policies and denied the request believing that there was some question as to whether Complainant could pay back the leave. As to the Employee Viewpoint Survey incident, management explained that Complainant was in a non- duty status and was instructed not to perform any work. Complainant was admonished for not following instructions. Finally, management issued the return-to-duty notice because Complainant had not submitted medical documentation in support of his absence. As to issues in the fourth complaint, first, Complainant was advised to make a request under the Freedom of Information Act to obtain the information he sought because it could not be released under the Agency’s policies. Next, Complainant was denied advanced leave for the same reasons discussed above. Complainant’s reassignment request was denied as a reasonable accommodation because reassignment was the accommodation of last resort and Complainant had declined the Agency’s offered alternative accommodations. Complainant was issued a proposed suspension because he had violated the Privacy Act by accessing and sharing the timekeeping records of another supervisor. Agency management later upheld the suspension. Regarding Complainant’s reasonable accommodation request to telework three weeks per month for four to six months from San Antonio, the AJ noted again that the Agency offered alternative, effective accommodations which Complainant accepted for the first time. 2021005085 5 With respect to the status reports, management requested the reports to access the teams’ progress. Other supervisors and sections were required to submit the reports as well. With respect to his involuntary detail and denial of training claims, the AJ found that Agency officials credibly testified that these events occurred based on errors in the Agency’s system. The Agency’s system starts generating emails before an employee lapses in certification. Management forwarded Complainant the emails regarding his recertification needs. Complainant had, but did not submit, documentation indicating that he was up to date on his certification. Since management had no proof that he was up to date on certification, Complainant was temporarily detailed out of his position. When the mistake was discovered, Complainant was returned to his position and his training credits were updated. Finally, management officials testified that they simply wanted Complainant to follow up with the contractor about an outstanding issue. The AJ found that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ’s decision should be overturned because it is not supported by substantial evidence. Complainant asserts that each of the Agency’s stated legitimate, non-discriminatory reasons are either non-existent, fail to address Complainant’s concerns, or are simply not worthy of credence. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2021005085 6 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or reprisal by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2021005085 7 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 March 21, 2022 Date