0120130479
02-25-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130479
Hearing No. 560-2011-00211X
Agency No. 200106232010104358
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 4, 2012, final order concerning his equal employment opportunity (EEO) complaint 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we AFFIRM the Agency's final order which fully implemented the EEOC Administrative Judge's (AJ) decision which found that Complainant failed to prove that he was subjected to discrimination and/or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Physician Compensation and Pension Unit (CP) Examiner at the Agency's Jack C. Montgomery VA Medical Center in Muskogee, Oklahoma. Complainant's responsibilities include evaluating veterans who have made a compensation and pension claim. Complainant suffered from osteoarthritis and had a knee replacement surgery. Following his surgery, in May 2010, Complainant returned to work on a part time bases. He used his leave during the time that he did not work. Complainant did not return to a full time schedule until August 2010. Complainant maintained that during the time that he worked a part time schedule his supervisor repeatedly asked for additional medical documentation, and prepared multiple "Reports of Contact" which were requests for clarification. Complainant's supervisor also discussed the need for Complainant to submit his reports in a timely manner. In July 2010, while Complainant was working a reduced schedule, Complainant's supervisor requested that Complainant provide acceptable medical documentation for his continued use of sick leave. The note advised Complainant that he had been absent from work for sixty-five days, totaling 52% of the workdays since January of 2010. Complainant was advised that he was needed full time and that he needed to provide information about his current condition. Complainant maintained that it was unreasonable for his supervisor to request additional medical information since he had received a letter in May from his treating physician indicating that he would have to work on a reduced schedule. Complainant presented a return to work form from his physician dated August 18, 2010.
Complainant contends that after his return to work his supervisor began to retaliate against him and caused a hostile environment. For example, Complainant contends that his supervisor attempted to contact his treating physician for clarification. Complainant maintains that his supervisor denied his request to attend a conference on August 16, 2010. The supervisor indicated that Complainant had attended twelve training courses the year before and he indicated that the heavy workload did not allow for Complainant's absence. The supervisor also denied Complainant's request to leave work early on September 3, 2010, indicating that Complainant had not completed his duties. On October 4, 2010, the supervisor removed Complainant's personal belongings out of his office. The supervisor indicated that he had given everyone two weeks notice and it had to be done due to an office remodeling project. Complainant maintained that due to his workload he was unable to move his belongings at that time. Further, Complainant maintains that his supervisor denied his request for twenty eight days of annual leave, by citing that another employee had requested it and that Complainant had just returned to the office so the workload could not support his absence. Complainant also alleges that on October 26, 2010, his supervisor accused him of taking a long lunch break. Lastly, Complainant maintains that his supervisor told him that he too many open templates (computerized forms) on his computer and told Complainant that he should complete his work. Complainant believes that these comments were made in order to retaliate against him.
On November 19, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (knee) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
A. His request for leave for the time period of December 1-28, was denied; and
B. He was subjected to a hostile work environment on the bases of disability (knee replacement) and retaliation (prior EEO activity) when:
1. On May 17, 2010, his supervisor (S1) contacted Complainant's surgeon for medical information;
2. On June 25, 2010, S1 gave him a report of contact concerning the requirement to be present at work every day;
3. On July 12,2010, S1 issued him a letter requesting acceptable medical documentation for his absences;
4. S1 denied his request for an authorized absence to attend a conference;
5. On August 6, 2010, S1 issued him a letter requesting that he provide adequate medical documentation for his future absences;
6. On September 3, 2010, S1 denied his request to leave early;
7. On October 4, 2010, S1 told him he would have to move from his office within two days due to remodeling and later that day S1 moved his personal belongings out of his office;
8. S1 denied his request for annual leave for December 1 - 28;
9. On October 26, 2010, S1 accused him of taking a long lunch break; and
10. On November 2, 2010, S1 accused him of having too many pending "templates" and leaving early the day before.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The AJ issued a decision without a hearing finding that assuming arguendo that Complainant established a prima facie case of disability and reprisal, with respect to claim A, management articulated legitimate, nondiscriminatory reasons for its actions, namely that the work load did not allow for Complainant to take a month's leave. The AJ found that Complainant failed to demonstrate that the Agency's articulated reason was pretext for discrimination.
With regard to claim B, the AJ found that all ten events listed by Complainant were nothing more than Complainant's supervisor performing his job and directing the work of his employees and/or seeking documentation for Complainant's leave requests. The AJ found that the incidents identified by Complainant were not sufficiently severe and/or pervasive enough to constitute harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the Agency misrepresented the facts with respect to several incidents. Complainant indicates that while he originally intended to take off twelve weeks following his surgery his supervisor suggested that he take off only six weeks and then determine where they go from there with regard to whether he needed additional time off. He also contends that he perceived the Agency's actions as a form of harassment due to retaliation because of his prior EEO activity. Complainant maintains that he was told that he could not take a month off because another employee had requested it and that is why it was denied. Complainant also maintains that he had more cases and more complex cases than his coworkers, and maintained that he completed more cases than his colleagues combined both before and after having his surgery. Further, Complainant maintains that the AJ did not allow him to amend his complaint to include additional claims.
In response, the Agency contends that Complainant's brief is untimely and therefore should not be considered but in the event that it is deemed, the Agency argues that Complainant has not presented any evidence which warrants a finding of discrimination.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate. With respect to claim A, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above and Complainant failed to show that the actions were pretext for discrimination. We also find that the incidents complained of with respect to claim B, even when considered in their totality, are not severe or pervasive enough to establish a hostile work environment. Further, with regard to Complainant's contentions on appeal we find that other than Complainant's assertions that management misrepresented the facts, he has provided no evidence which support his allegations. While the record indicates that Complainant's supervisor was a stickler for the rules and was motivated by the work load, Complainant has not shown that the supervisor's managing style was motivated by discriminatory animus. Accordingly, we find that the preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___2/25/15_______________
Date
2
0120130479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130479