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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal Nos. 2021000880, 2022004350 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2021000880 & 2022004350 Hearing No. 410-2018-00045X Agency Nos. 200I-0557-2017100452 & 200I-0557-2020104665 DECISION On October 6, 2020, Complainant filed two separate appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 29, 2020 decision dismissing Agency No. 200I-0557-2020104665 (Complaint No. 665) and the Agency’s final order fully implementing an Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision concerning Agency No. 200I- 0557-2017100452 (Complaint No. 452). In both complaints, Complainant alleged unlawful 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. Complainant’s appeal of Complaint No. 665 was docketed as EEOC Appeal No. 2021000880. His appeal of Complaint No. 452 was docketed as EEOC Appeal No. 2022004350. The Commission exercises its discretion to consolidate these two appeals. See 29 C.F.R. § 1614.606. Complainant worked as a Social Worker, GS-0185-11, at the Carl Vinson VA Medical Center in Dublin, Georgia. 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. 2021000880 & 2022004350 2 On December 28, 2016, Complainant filed Complaint No. 452, in which he alleged that the Agency2 discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), sex (male), and disability (chronic post-surgery foot pain) when: 1. On July 20, 2016, Complainant learned that a c-worker (CW) accused him of recruiting Black employees to participate in a Black Lives Matter (BLM) protest and riot; 2. On an unspecified date in July 2016, RMO1 issued Complainant a hostile work environment memorandum and on July 18, 2016, RMO1 issued Complainant a cease and desist notice, both of which were written counseling memoranda; 3. RMO1, RMO2, RMO3, and RMO4 failed to take action when Complainant informed them about a hostile work environment on July 20 and 31, 2016, October 3, 12, 24-26, 2016, November 10, 15, 2016, and February 22, 2017; 4. On August 1, 2016, at the conclusion of an Agency Fact-Finding investigation, RMO3 accused complaint of creating a hostile work environment; 5. On September 29, 2016, RMO3 issued Complainant a written counseling for unprofessional conduct and accused Complainant of disrupting the orderly operation of the facility and compromising patient care; 6. Complainant reported a hostile work environment on October 3, 12, 24, 25, 31, 2016, November 10, and 15, 2016, but RMO5 and RMO6 failed to take corrective action; 7. On September 30, 2016, and October 24 - 28, 2016, after Complainant exercised his approved Family and Medical Leave Act (FMLA) entitlement for chronic foot pain 2 In Complaint No. 452, the parties identified the following individuals as being involved in or otherwise aware of Complainant’s allegations: • Mental Health Social Work Supervisor (RMO1) • Housing & Urban Development - VA-Supported Housing Program Supervisor (RMO2) • Mental Health Services Chief (RMO3) • Human Resources Specialist (RMO4) • EEO Program Manager (RMO5) • Medical Center Director (RMO6) • A GS-12 Social Worker (CW) • Union Representative (UR) • Employee and Labor Relations Specialist (ELRS) • Program Analyst (PA) • Human Resources Officer (HRO) • Human Resources Specialist (HRS) • Contract Office Manager (COM) 2021000880 & 2022004350 3 post-surgery, RMO1 informally counseled, admonished Complainant, telling Complainant that his absences have impacted Veteran care and charging Complainant with absence without official leave (AWOL); 8. On October 21, 2016, and November 1, 14-17, 30, 2016, RMO1 interfered with, restrained and denied Complainant’s approved FMLA entitlement to leave by not allowing him to leave work at 2:30 p.m.; 9. On an unspecified date in June 2016, RMO1 failed to submit Complainant’s newly earned Georgia Clinical Social Worker License and Master Addiction Counselor (MAC) Certification to the Veterans Health Administration (VHA) Social Work Certification Review Committee for consideration for the Special Advancement for Achievement (SAA) step increase; 10. Because RMO1 interfered with Complainant’s approved FMLA entitlement and charged him AWOLs that were never removed, Complainant was denied a time-in- grade step increase on February 8, 2016; 11. On February 21, 2017, after returning to work from FMLA leave, Complainant discovered that someone else had been assigned to his office, and as a result had nowhere to sit, which increased his chronic foot pain; 12. On February 21, 2017, Complainant was constructively discharged after the Agency failed to take corrective action after Complainant repeatedly complained of a hostile work environment;3 13. On February 26, 2017, while Complainant was attempting to clean out his office and after he had informed RMO1, RMO4 and HRS that he would be doing so over the weekend to avoid disrupting patient care, he was escorted off the premises in the presence of Complainant’s family by a local sheriff; 14. On February 27, 2017, after Complainant waited for an hour in the parking lot for a manager to let him into the building, COM allowed Complaint to retrieve his belongings; 15. On February 27, 2017, Complainant discovered that RMO1 had requested his telephone number from a security officer in December 2016, but never contacted him; and 3 This allegation was separately processed as a mixed case compliant. The Agency issued a final agency decision regarding this claim on March 9, 2018 and provided Complainant appeal rights to the Merit Systems Protection Board. Investigative Report (IR) 2-7, 59-62; Agency’s Motion for Summary Judgment (MSJ), pp. 3-4 & Exhibit 1 - PDF, pp. 22-28. Consequently, allegation (12) is not before us. 2021000880 & 2022004350 4 16. On May 5, 2017, RMO1 issued Complainant a performance appraisal for fiscal year (FY) 2016 that failed to include his input, his educational attainment (e.g. GA LCSW, Master Addiction Counselor Certification) and the fact that he had no performance deficiencies. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC AJ. Complainant requested a hearing, which was docketed as Hearing No. 410-2018-00045X. On August 13, 2019, Complainant moved to amend Complaint No. 452. On November 15, 2019, the AJ assigned to the case denied Complainant’s motion and issued the following order: The Agency is hereby ordered to process the newly proposed claims as a separate EEO complaint. The filing date of the instant motion-to-amend-complaint (i.e. August 13, 2019) is the date that should be used to determine if initial EEO counselor contact was timely. (Emphasis added.) AJ Order dated November 15, 2019, pp. 5-6. On August 26, 2020, in accordance with the AJ’s order in Complaint No. 452, Complainant filed Complaint 665. Administrative File (AF) 69-71. However, instead of listing new allegations, Complaint No. 665 merely repeated the allegations set forth in Complaint No. 452, albeit in a slightly different order. On September 23, 2020, the AJ entered summary judgment in favor of the Agency on Complaint No. 452. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant filed the instant appeal and the Commission docketed the appeal as EEOC Appeal No. 2022004350. On September 29, 2020, the Agency dismissed Complaint No. 665 after finding that since the AJ’s November 5, 2019 order specified August 13, 2019 as the date of EEO Counselor contact for timeliness purposes, none of the incidents were timely. See 29 C.F.R. §§ 1614.105(a)(1), 107(a)(2). The Commission docketed Complainant’s appeal as EEOC Appeal No. 2021000880. ANALYSIS AND FINDINGS Appeal No. 2021000880 While we agree with the Agency’s finding of untimely contact with an EEO counselor, we will affirm on additional grounds as well. The Commission’s regulations provide that an agency must dismiss a complaint that states the same claim that is pending before or has been decided by the agency or by the Commission. 29 C.F.R. § 1614.107(a)(1). Here, the record conclusively establishes that the allegations in dismissed Complaint No. 665 were identical to those raised in Complaint No. 452, which had been investigated by the Agency and adjudicated by an AJ. Complainant presented no argument or evidence on appeal demonstrating that the allegations comprising Complaint No. 665 are distinct from those raised in Complaint No. 452. Accordingly, the Agency's final decision dismissing Complaint No. 665 is AFFIRMED. 2021000880 & 2022004350 5 Appeal No. 2022004350 The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. To warrant a hearing on a claim of discriminatory harassment, Complainant must raise a genuine issue of material fact as to whether: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency as Complainant’s employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We note that the antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2021000880 & 2022004350 6 In this case, construing the evidence in the light most favorable to Complainant, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, as to allegations (1) - (6), the record establishes that Complainant had posted an essay on Facebook about the BLM movement, which CW, RMO1. RMO4, RMO4, and RMO6 interpreted as calling for a BLM protest on the medical center campus. The matter was investigated, and Complainant was told to cease and desist such activity but was not given any disciplinary action. IR 116-17, 126, 133-34, 144, 154-55, 166-67, 175, 182-84, 188, 214, 383-88. Concerning allegations (7), (8), and (10), RMO1 affirmed that she had advised Complainant that his absences were negatively impacting patient care, that leaving the office at 2:30 p.m. was not a viable option because of patient care concerns, and that Complainant was charged with AWOL because he failed to adequately document his absences. HRO and HRS averred that the delay in Complainant’s within-grade increase was due to significant amounts of leave without pay in his record. IR 118-19, 156-57, 213-17, 219, 225. Regarding allegation (9), RMO1 averred that a step increase was not warranted for an additional social work license and that she could not recall Complainant requesting a step increase for a MAC. HRO and HRS averred that SAA recognition requests must be initiated by the employee’s supervisor and that no such request was ever submitted on Complainant’s behalf. IR 120, 218, 224-25. With respect to allegation (11), RMO1, PA, and HRO averred that Complainant’s office space was being used for patient care during his extended absences and that no one was aware of when Complainant was scheduled to return to duty. IR 120, 204, 219. With regard to allegations (13) - (15), RMO1 denied having first-hand knowledge of any of these incidents. IR 127. As to incident (16), RMO1 averred that she gave Complainant an overall rating of “fully successful” on his FY 2016 performance appraisal in accordance with her observations of his performance as measured against the standards for each performance level, and that Complainant provided no input regarding additional skills or education. IR 123-24. When asked why he believed that the foregoing incidents were motivated by unlawful considerations of this protected classes, Complainant responded that he felt ostracized by his coworkers; that CW was a White female and because of that his side of the story was ignored; that there was no proof that he posted a threat, interrupted workflow, or acted unprofessionally; and that no one else was escorted off the premises in the way he was. IR 97-99, 101, 103-04, 106-07. Beyond his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by the various individuals named in the complaint, which cause us to question the truthfulness of any of these individuals as witnesses, or which tend to raise a genuine issue of material fact as to the existence of at least one of the indicators of discriminatory intent listed above. Consequently, we find that Complainant failed to show that he was subjected to discrimination or a hostile work environment as alleged. 2021000880 & 2022004350 7 Complainant also appears to be raising claims of denial of reasonable accommodation with respect to allegation (8). An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to merit a hearing on whether he was denied a reasonable accommodation, Complainant must raise a genuine issue of material fact as to whether: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). For purposes of analysis, we will assume that Complainant is a qualified individual with a disability. According to RMO1, RMO3, ELRS (the Local Reasonable Accommodation Coordinator) and HRO, on July 5, 2016, Complainant requested a reasonable accommodation that consisted of no prolonged standing or walking and no more than six hours of work per day. The accommodation was granted on an interim basis for several months, but on November 10, 2016, RMO1 notified Complainant by email that the interim accommodation could not be extended any further due to the impact that Complainant’s shortened workdays were having on patient are. An alternative accommodation was offered that included 30-minute morning and afternoon breaks, an ergonomic arrangement that would allow him to keep his feet elevated throughout the day as needed, being excused from having to walk patients back to the reception area after sessions, and the option to change his furniture around as needed so as to minimize the need to stand and walk. According to RMO1, when presented with the alternative accommodation, Complainant became angry and started yelling. IR 119, 156-57, 196-97, 216-17, 340-57. While Complainant may not have received the accommodation he preferred, we have held that protected individuals are entitled to an effective reasonable accommodation, not necessarily the accommodation of the individual's choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not presented sufficient evidence demonstrating that the accommodations offered to him would have been ineffective. Accordingly, the record does not support a finding that the Agency failed to accommodate Complainant in violation of the Rehabilitation Act. Ultimately, we agree with the AJ that Complainant failed to establish the existence of an evidentiary dispute in the record sufficient to raise a genuine issue of material fact with respect to any of the allegations listed in Complaint No. 452. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2021000880 & 2022004350 8 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision on Complaint No. 452. 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. 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). 2021000880 & 2022004350 9 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 August 17, 2022 Date