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

Equal Employment Opportunity Commission

Jul 28, 2022

Appeal No. 2021002341 (E.E.O.C. Jul. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002341 Agency No. 200H-0630-2016900079 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), in which he raises the issue of noncompliance with the Agency’s final decision dated October 19, 2018, 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 determination that it has complied with the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency’s New York Harbor Healthcare System (NYHHS) in New York, New York. On November 10, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on disability (psychological disorders and learning disabilities) and in reprisal for prior protected EEO activity when: 1. On numerous dates since December 6, 2013, the facility has failed to accommodate Complainant’s disability; 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. 2021002341 2 2. On November 19, 2015, the Geriatric Team Lead requested that Complainant return to the Geriatric Team, but the request was denied by the Supervisory Program Specialist; 3. On September 20, 2016, Complainant was issued a proposed admonishment; and 4. On November 8, 2016, Complainant was rated minimally satisfactory on his performance appraisal, which he believed was lower than he deserved. Following an initial investigation, the Agency remanded the complaint for further investigation. After the supplemental investigation, when Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on October 19, 2018. The decision concluded that the Agency had discriminated against Complainant when it failed to provide an effective accommodation for his disabilities in the form of a “regular and relatively quiet and slow-paced work environment,” that he was issued a minimally satisfactory performance rating based on disability discrimination, and that he was subjected to a discriminatory hostile work environment based on disability. The Agency ordered various forms of relief to Complainant, including, in pertinent part, a commitment: to Complainant in writing that it will cease from engaging in the unlawful employment practice found in this case (namely, its failure to provide an effective reasonable accommodation), that it will not engage in similar unlawful employment practices, that it will provide Complainant a work place free from hostility, offensive conduct or abuse, and that no reprisal will be taken against Complainant for filing and pursuing this or any other complaint under federal EEO law. The Agency sent a Letter of Commitment to Complainant on December 6, 2018, which stated in relevant part that the Agency “[s]hall cease from engaging in the unlawful employment practice of failing to provide an effective reasonable accommodation,” that it “[w]ill ensure that officials responsible for terms and conditions of employment will not engage in similar unlawful practices,” and that “NYHHS New York Campus will provide [Complainant] with a work place free from hostility, offensive conduct or abuse, and no reprisal will be taken against the above- named Complainant. . .” In 2019, the Agency hired another Medical Support Assistant who Complainant alleges began to bully and harass him. He claims he contacted his supervisors numerous times about the harassment and nothing was done. He alleges that the harassment escalated and eventually resulted in a “nasty verbal argument,” police intervention, and a criminal complaint filed against him by the alleged harasser. Complainant claims that the “harassment and general work environment” caused his mental health to deteriorate. On February 2, 2021, based on letters from his doctor and therapist sent to the Agency, Complainant requested that he be allowed to telework two to three days a week as a reasonable accommodation, which the Agency allowed. Complainant claims he was then made to sign a telework agreement “under duress” that required him to do extra work for a different unit in addition to his regularly-assigned unit in Geriatrics. 2021002341 3 He alleges that his telework agreement was then cancelled after he brought up the extra workload to his supervisors. Complainant contacted the EEO office at NYHHS and sent a Request for Enforcement to an EEO counselor at his facility. He claims his request was not forwarded to any other Agency officials and that the Agency did not follow up with him on the matter. He subsequently submitted the instant Petition for Enforcement to the Commission. Complainant argues that the Agency is in violation of its final decision and the Letter of Commitment because it “has failed to provide [Complainant] with a working atmosphere free from harassment.” He requests that the Agency be required to: “take action to stop the bullying and harassment of the [Complainant], pursuant to the [L]etter of Commitment”; provide the harasser and supervisors EEO training; restore his three-day telework agreement but only with his current assignment in Geriatrics; compel the harasser to withdraw her criminal complaint against Complainant and her EEO complaints; withdraw any disciplinary action against Complainant; pay Complainant for pain and suffering based on the Agency’s violation of its final decision and Letter of Commitment; and pay Complainant’s attorney’s fees. In response, the Agency argues that Complainant’s Petition for Enforcement is not properly before the Commission because he never filed a written notice of the alleged noncompliance with the Agency’s Deputy Assistant Secretary for Resolution Management-who is the Agency’s designated EEO Director for purposes of 29 C.F.R. § 1614.504(a)-but instead filed notice with an EEO officer at the facility where he works. The Agency further contends that even if his Petition for Enforcement were appropriately before us, Complainant has failed to show the Agency’s noncompliance with its final Decision. The Agency argues that its “broad and non-specific written commitment does not cover new and unrelated problems [Complainant] may encounter in the workplace” and that his new allegations of discrimination should be processed as separate EEO claims. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the Agency EEO Director, in writing, within 30 days of the date on which the complainant knew or should have known of the noncompliance. 29 C.F.R. § 1614.504. If Complainant does not receive a response or is not satisfied with said response, a complainant may appeal to the Commission for a determination as to whether the agency is in compliance. 29 C.F.R. § 1614.504(b). 2021002341 4 Because the Agency has addressed the claim of noncompliance and because the record is fully developed, we shall determine whether Complainant has shown noncompliance with the Agency decision finding discrimination. Upon review, we find the Agency has shown substantial compliance with its final action. We note that the Agency’s statement that it will provide a workplace free from “hostility, offensive conduct or abuse” is merely a generalized commitment to which every Agency employee is entitled. Moreover, we agree with the Agency that Complainant’s allegations of noncompliance are in fact new claims of harassment and discrimination and are outside the scope of the October 2018 final Agency decision and the December 2018 Letter of Commitment. Furthermore, the reasonable accommodation request at issue in the complaint adjudicated in the Agency’s final decision was for a quiet and low-volume work area, not telework. Therefore, if Complainant wishes to pursue allegations of subsequent acts of discrimination, they must be raised as separate EEO claims through EEO counseling under 29 C.F.R. § 1614.105. CONCLUSION Accordingly, the Agency’s determination finding that it was in compliance with its final action is AFFIRMED. 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). 2021002341 5 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. 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. 2021002341 6 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 28, 2022 Date