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

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020004232 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garrett M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004232 Hearing No. 520-2019-00629X Agency No. 200H-0608-2019101732 DECISION 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 May 13, 2020, 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 At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency’s Medical Center in Manchester, New Hampshire. Complainant stated that since October 2017, he has been subjected to a hostile work environment. For example, Complainant stated that in October 2017, his first-line supervisor (Supervisor) asked Complainant to sign travel orders listing a day off on a date that Complainant would be driving while on duty, and Complainant refused to sign the travel order. Report of Investigation (ROI) at 71. Complainant also stated that he was registered to attend a training in January 2019, but he requested to reschedule it in December 2018. Complainant stated that Supervisor registered Complainant for a training in April and May 2019, which he felt forced to attend. ROI at 77-8. 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. 2020004232 2 Complainant stated that on December 18, 2018, he injured his right shoulder during a training, and was placed on light duty because he was restricted in lifting, clearing, and pulling. Complainant stated that on December 27, 2018, an Occupational Health Nurse cleared him for full duty. ROI at 69-70. Complainant stated that on February 4, 2019, he was informed that Supervisor described seeing Complainant with both hands above his head to put his hood up, and other employees discussed a video of his injury, which contradicted Supervisor’s statement. ROI at 90-1. On April 24, 2019, Supervisor issued Complainant a Written Letter of Expectation related to the cleaning of his duty weapon each month in accordance with procedure. Supervisor noted that Complainant’s weapon in its current state would be considered unacceptable because it jeopardizes the safety of Complainant and his fellow officers. ROI at 503. Complainant stated that on May 4, 2019, his tour of duty was changed, and he was forced to work overtime, which was not in accordance with the forced overtime roster. ROI at 100. Complainant stated that on May 15, 2019, he informed Supervisor that he was not feeling well and needed to go home. Supervisor responded that Complainant could not leave, so he stayed for the remaining two hours of his shift. ROI at 103. Complainant also submitted his resignation on May 15, 2019, and he stated that he felt forced to resign due to ongoing harassment. ROI at 506, 105. EEO Complaint On March 21, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (shoulder injury), and in reprisal for prior protected EEO activity (report of shoulder injury), when: 1. from October 2017 to present, Complainant was subjected to a hostile work environment with respect to (a) being asked to falsify documents; (b) monitoring his activities; (c) false accusations; (d) being unsupported; (e) being registered for training he did not volunteer for; (f) not addressing his complaints; (g) proposed schedule changes; (h) adding false statements to the E-Comp Department of Labor website; and (i) being forced to work overtime; 2. on February 4, 2019, Complainant became aware that his work-related injury was being discussed with others; 3. on April 26, 2019, Supervisor issued Complainant a Written Letter of Expectation for not cleaning his duty weapon properly in March 2019, which jeopardized the safety of Complainant and his fellow officers; 4. on May 4, 2019, Complainant’s tour of duty was changed, which resulted in him being made to work overtime; 2020004232 3 5. on May 15, 2019, Complainant’s sick leave request was denied; and 6. on May 15, 2019, Complainant felt compelled to resign from his position (constructive discharge) due to the ongoing harassment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ) regarding claims 1-5.2 Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 13, 2020, motion for a decision without a hearing and issued a decision without a hearing on May 11, 2020. The AJ found that Complainant was not an individual with a disability because he had a short- term shoulder injury and cleared to return to duty ten days later. The AJ also held that Complainant alleged no prior EEO activity and that his report of a workplace injury was not protected EEO activity. Based on the determination that Complainant could not establish a prima facie case of disability discrimination or retaliation, the AJ granted the Agency’s Motion for Summary Judgment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant disagrees with the AJ and he asserts that he was subjected to discrimination and harassment based on disability and retaliation. Complainant argues that the AJ did not apply the information contained in “USDOL, OSH act section 11(c), 29 C.F.R. 1904.36,” which states that “reporting an injury is always a protected activity.” Complainant states that he suffered an on-the-job injury, which he reported as required, and that reporting the injury was protected activity. Complainant disagrees with the AJ’s determination that reporting a workplace injury is not protected activity and cannot be a basis for a reprisal claim. Complainant also argues that summary judgment was inappropriate because there are genuine disputes of material facts, which are supported by coworker affidavits, emails, and medical documentation. 2 We note that the Agency properly advised Complainant that claim 6 had different rights as a mixed-case claim, which could be appealed to the Merit Systems Protection Board (MSPB). Complainant did not raise this claim before the AJ. 2020004232 4 Complainant states that the Agency’s final order stated that “proper citations to the record were not followed,” and that the AJ disregarded sworn statements supporting his position. Agency’s Contentions The Agency asserts that, while Complainant disagreed with the AJ’s opinion, he never addressed the bases for which his complaint was dismissed. The Agency argues that Complainant cannot meet his burden to establish that he was an individual with a disability or that he was subjected to reprisal discrimination. The Agency states that Complainant seems to conflate injury with disability, but they are not the same thing. The Agency asserts that the record shows that Complainant had nothing more than a short-term shoulder injury, and he was cleared to return to full duty by a medical provider less than ten days later. The Agency argues that Complainant cannot establish that he was an individual with a disability, and therefore, failed to establish an essential element of his prima facie case of disability discrimination. The Agency also argues that reporting a workplace injury to one’s supervisor is not protected EEO activity and making such a report cannot be the basis for a reprisal claim. Regarding Complainant’s harassment claim, the Agency notes that some of the incidents predate his injury and the reporting of his shoulder injury. The Agency also asserts that Complainant cannot establish that the remaining incidents: (a) constitute harassment; (b) relate to his alleged protected classes; or (c) affected a term or condition of his 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. The Agency requests that the Commission affirm its final order. STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020004232 5 ANALYSIS AND FINDINGS Decision without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that summary judgment was inappropriate because there are genuine disputes of material facts, which are supported by coworker affidavits, emails, and medical documentation, and that the AJ disregarded sworn statements supporting his position. However, Complainant did not specify any material facts, nor cite to evidence in the record to show a dispute on appeal. While Complainant asserts that the Agency’s final order stated that “proper citations to the record were not followed,” we note that the final order does not include this statement. Complainant also argues that the AJ disregarded sworn statements supporting his position, but he did not identify any sworn statements that the AJ allegedly disregarded. We note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disability Discrimination It is undisputed that Complainant suffered an on-the-job shoulder injury on December 18, 2018, and that he was cleared to return to work without restrictions on December 27, 2018. 2020004232 6 Complainant stated that during the time that he was injured, he was limited in his ability to lift, pull, and carry. ROI at 70. However, we find that Complainant has not established that he is an individual with a disability. Commission regulation defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment, meaning that the individual has been subjected to an action prohibited by the Americans with Disabilities Act as amended because of an actual or perceived impairment that is not both “transitory and minor.” 29 C.F.R. § 1630.2(g). Here, Complainant did not incur a physical impairment that substantially limited one or more major life activities because his shoulder injury lasted less than ten days, and he did not show that he was regarded as an individual with a perceived impairment that was not both “transitory and minor.” See Brandon E. v. Dep’t of the Navy, EEOC Appeal No. 2020003047 (June 7, 2021) (finding that the complainant did not have a qualifying disability because his restrictions were transitory when they were expected to be lifted in approximately two and a half months); Delphia F. v. Dep’t of the Interior, EEOC Appeal No. 2020000137 (Feb. 9, 2021) (finding that the complainant was not an individual with a disability based on an ankle sprain which lasted for little more than one week). Accordingly, we find that Complainant did not establish that he was an individual with a disability or regarded as an individual with a disability, and he did not show that the Agency subjected him to disability discrimination. Reprisal On appeal, Complainant argues that the AJ did not apply the information contained in “USDOL, OSH act section 11(c), 29 C.F.R. 1904.36,” which states that “reporting an injury is always a protected activity.” However, the Commission defines protected activity as (1) opposing a practice made unlawful by one of the employment discrimination statutes; or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statue. EEOC Compliance Manual on Retaliation, No. 915.004 at II.A. (Aug. 25, 2016). We find that Complainant’s reliance on “USDOL, OSH act section 11(c), 29 C.F.R. 1904.36,” is misplaced and this regulation is not applicable in the EEO process. Complainant did not participate in protected EEO activity when he reported a work-place injury because this is not an opposition to a practice made unlawful by one of the employment discrimination statutes, nor participation in an EEO investigation, proceeding, or hearing. However, Complainant engaged in protected EEO activity when he initiated the instant complaint and he filed an internal complaint to report Supervisor’s alleged harassment. The record shows that Complainant initiated the instant EEO complaint on January 31, 2019. We note that the EEO Counselor’s Report does not show that she contacted Supervisor during the informal stage, and Supervisor was not asked when he learned of Complainant’s EEO contact.3 ROI at 10. 3 Supervisor responded that he learned of Complainant’s stated EEO activity of the report of his shoulder injury on or about December 19, 2018. ROI at 229. 2020004232 7 The record also contains a copy of the fact-finding report of the Agency’s internal investigation into Complainant’s harassment allegations showing that Complainant filed his internal complaint on February 7, 2019, and Supervisor was interviewed on March 8, 2019. The internal investigation concluded that Supervisor did not discriminate against Complainant. ROI at 507-9. For the purposes of this decision, we will consider March 8, 2019 as the date that Supervisor learned of Complainant’s protected EEO activity. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of retaliation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions for claims 3-5. For claim 3, Supervisor stated that he learned that four officers failed to clean their weapons and document their cleanings in March 2019. Supervisor stated that he issued a Letter of Expectation to all four officers, and that the letter was not disciplinary. ROI at 248. Regarding claim 4, Supervisor stated that Complainant’s tour of duty was not changed, but he was forced to work overtime due to staff shortages. Supervisor stated that he and others worked two or three overtime shifts that pay period, while Complainant only worked one overtime shift. Supervisor stated that when Complainant claimed that the rotation was out of order, he explained that there were other factors to consider, such as employees on double shifts or on leave. Supervisor added that it would not have been fair and equitable to grant Complainant’s request to not work overtime. ROI at 253-4. For claim 5, Supervisor stated that the staffing requirements stipulate at least two uniformed officers on duty at all times, and they did not have sufficient staff to allow Complainant to leave early. ROI at 257. 2020004232 8 We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not provide any arguments that Supervisor’s reasons were not worthy of belief in his appeal. Complainant made bare assertions that Supervisor retaliated against him, which are insufficient to prove pretext or that Supervisor’s actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency retaliated against him for claims 3-5. Harassment As discussed above, we found that Complainant did not establish a case of retaliation for claims 3-5. Further, we find that the additional incidents of alleged harassment described in claims 1 and 2 predate Supervisor’s knowledge of Complainant’s protected EEO activity. We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment in reprisal for prior protected EEO activity. 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 final order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on disability, or in reprisal for protected EEO activity. 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. 2020004232 9 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. 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. 2020004232 10 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 December 23, 2021 Date