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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022002702 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002702 Hearing No. 430-2020-00339X Agency No. 2004-0659-2019104105 DECISION On April 18, 2022, 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 April 5, 2022, final order 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 order. BACKGROUND During the relevant time, Complainant worked as an Advanced Medical Support Assistant at the Agency’s Patient Aligned Care Team at Charlotte Health Care Center in Charlotte, North Carolina. Complainant was a probationary employee. Report of Investigation (ROI) at 87. His first-level supervisor was Supervisory Medical Support Assistant (Supervisor). ROI at 86. Outpatient Section Chief (Chief) was his second-level supervisor. ROI at 88. On June 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of disability (posttraumatic stress disorder, depression, chronic migraines, retinal detachment) 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. 2022002702 2 1. On May 14, 2019, Complainant was terminated during his probationary period for Failure to Qualify During Probationary/Trial Period, effective May 15, 2019; 2. On June 5, 2019, Complainant was non-referred for the position of Advanced Medical Support Assistant, under vacancy announcement number CBBT-10507963- 19-JG; and 3. On unidentified dates, Chief accused him of being under the influence, which caused officials at another Agency facility to rescind his job offer. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on March 31, 2022. The Agency subsequently issued a final order implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ misapplied the law by granting summary judgment. He said that the Agency discriminated against him because of his veteran status and that the Agency knowingly did not update his Office of Personnel Management (OPM) file to reflect a disability rating of 30%, which would have afforded him additional leave. In response, the Agency asserts that the Agency’s decision adopting the AJ’s decision was proper and should stand. ANALYSIS AND FINDINGS 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. (Aug. 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). 2022002702 3 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. Though Complainant argues the AJ did not properly apply the law in issuing a summary judgment, he has not provided, with specificity, how the AJ erred, nor has he identified any material facts that remain in dispute. As such, we find that the AJ’s issuance of a summary judgment was proper. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they 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. 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. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Letter of Termination specified that he was terminated during his probationary period due to unacceptable attendance. ROI at 182. Time logs demonstrate that, between March 14, 2019, and May 17, 2019, Complainant had 15 hours of sick leave, 8 hours of leave without pay, and 79.5 hours of absence without leave. ROI at 189-90. Supervisor and Human Resources (HR) Officer asserted that, despite being advised of the call-out procedure, Complainant did not notify management of absences in a timely manner, even after a written counseling. ROI at 89- 90, 97, 185. Due to his poor attendance and failure to comply with leave procedures, Supervisor recommended that Complainant be terminated during his probationary period. ROI at 89. Concerning claim 2, HR Specialist explained that Complainant was not referred because he did not put a grade level on his resume for the federal position, which was required of applicants to determine if they met the experience at the next lower grade. ROI at 104. As such, HR Specialist averred that Complainant received a notice that his resume did not contain the specific information required for all federal employment. ROI at 104. Concerning claim 3, Personnel Security Specialist, an Agency official at a different facility, said that he was unaware of any comment made about Complainant. ROI at 135. Rather, Personnel 2022002702 4 Security Specialist said that the Agency did not move forward with Complainant’s application because Complainant did not disclose termination of employment within the last five years on his signed Declaration of Federal Employment. ROI at 136. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. The focus of a pretext analysis is on whether the Agency’s actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for complainant to disagree with or question the Agency’s actions. A complainant must show that discrimination was the real reason for the Agency’s actions. Here, Complainant simply does not provide evidence of discrimination or pretext. To the extent Complainant argues that he was discriminated against based upon his status as a veteran, veteran status is not a protected class and therefore outside the purview of the Commission. See Mac O. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 2021004284 (Nov. 10, 2021) (stating that veteran preference or status and union activity are not protected bases under the EEO laws). Complainant also asserted that the Agency failed to provide him with all the leave to which he is entitled based on his disability rating. The Commission notes that, even if Complainant was provided an additional 104 hours of leave as asserted, Complainant was also terminated for failing to follow leave procedures. ROI at 97, 101, 122. The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Burdine, 450 U.S. at 259. We find no such evidence here. Finally, to the extent Complainant argues that he was subjected to harassment, such a finding is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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 decision implementing 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 2022002702 5 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). 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. 2022002702 6 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 29, 2023 Date