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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022000582 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hassan B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000582 Hearing No. 560-2017-00262X Agency No. 200J-0438-2018101765 DECISION On November 12, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as Chief of Employee and Labor Relations, Chief Business Office (“CBO”), Workforce Management (“WFM”), in Topeka, Kansas. On August 20, 2016, Complainant filed a formal EEO complaint alleging discrimination based on race (African American), color (Black), sex (male), and disability, as well as unlawful retaliation for prior protected activity (reporting prohibited personnel practices by his management to the Office of Special Counsel concerning allegations of unfair advantage in a selection and favoritism) 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. 2 2022000582 A. From February 5, 2016 through July 22, 2016, the Associate Deputy Under Secretary of Health over the Office of Community Care (“OCC Director”) failed to respond to Complainant’s request for a reasonable accommodation. B. On June 10, 2016, the Director, Workforce Management (“Director”) (Caucasian, white, female), and the Associate Director, Customer and Employee Relations (“Associate Director”) (Caucasian, white, male) reassigned Complainant from a GS-13 supervisory position as Chief, Employee and Labor Relations, to a Senior Employee and Labor Relations Specialist, GS-13 position. After the investigation into the complaint, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ held a hearing on May 11 and 12, 2021. Following the hearing at which four witnesses testified, the AJ issued a decision finding no discrimination or unlawful retaliation was established.2 The Agency in its final order, adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Based on the evidence presented at the hearing, as well as that gathered during the investigation, the AJ concluded that Complainant failed to prove, by a preponderance of the evidence, that his race, color, sex, disability or unlawful retaliatory animus played any role in the events he proffered to support his complaint. 2 The AJ noted that during the hearing process, Complainant attempted, for the first time, to raised additional claims beyond those accepted for investigation. The AJ properly noted that Complainant never sought to amend his claims, and therefore determined that the hearing would be confined to Claims A and B. We find no error on the part of the AJ in restricting the adjudication of the complaint to those claims originally accepted. 3 2022000582 Complainant identified his disabilities as congestive heart failure, chronic-severe depression, chronic anxiety, chronic insomnia, Post Traumatic Stress Disorder (PTSD), and Attention Deficit Disorder (ADD). Complainant testified during the hearing that, despite his medical conditions, he could perform the essential functions of his position. Complainant started in his supervisory position in February 2015. In June 2015, the Associate Director became his first-level supervisor. The Director was his second-line supervisor. Claim A: Failure to Accommodate The Agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (October 17, 2002). Here, Complainant has claimed that from February 5 through July 22, 2016, the OCC Director failed to respond to Complainant’s request for reasonable accommodation. On February 5, 2016, Complainant sent an email to the OCC Director requesting an investigation into alleged mistreatment by the Associate Director. As a result, an ongoing Administrative Investigation Board (AIB) proceeding was amended to include an inquiry into whether the Associate Director was creating a hostile work environment for Complainant that included, but was not limited to, denying his requests for leave, denying him compensation for time on duty, and making slanderous allegations against him. On February 17, 2016, Complainant sent a follow-up email to the OCC Director regarding being notified that he was failing his supervisory probationary period. In the email, he stated he was being retaliated against for reporting prohibited personnel practices by the Director and Associate Director to the Office of Special Counsel. On February 24, 2016, Complainant sent an email to an Agency official with WFM Leave Programs, which stated: Due to Congestive Heart Failure, I have been admitted to the Hospital earlier this evening. As my condition has yet to plateau, I want to make sure that it is on record that my current condition is directly related to the stress caused by the on- going Hostile Work Environment presented to me by [the Director, the Associate Director and the Chief Business Officer, who was the Director’s supervisor]. Please forward this to the OWCP Specialist currently assigned to WFM in order to file the appropriate documentation. 4 2022000582 Report of Investigation (ROI), p. 230. On April 11, 2016, Complainant emailed the OCC Director asking, “to be reassigned to a supervisory line outside of [the Director and Associate Director] pending the outcome of the investigations and the on-going hostile work environment to which I continue to be subjected.” ROI, p. 251. On April 19, 2016, Complainant emailed the OCC Director requesting administrative leave/authorized absence pending the outcome of the AIB investigations On May 2, 2016, Complainant copied the OCC Director on an email to an Office of Special Counsel investigator that stated the Agency had ignored his request for a reasonable accommodation. The OCC Director forwarded the email to the Director, who responded that Complainant “never initiated a reasonable accommodation request with the RA [Reasonable Accommodation] team,” but advised that based on the May 2 email, her Lead RA Specialist would contact Complainant to begin the RA process. ROI, p. 87. On May 3, 2016, the Lead RA Specialist emailed Complainant advising that the WFM Reasonable Accommodations team had been notified of his interest in requesting an accommodation and explaining the RA process. Complainant admitted he received the May 3, 2016 email from the Lead RA Specialist. Complainant did not respond to the May 3, 2016 email and the WFM RA team did not receive a RA request from Complainant. On May 13, 2016, Complainant was notified that he was being placed on a temporary detail to a special project under the supervision of the Director of the Mid-South Consolidated Patient Accounts Center (“Director of Patient Accounts”). Complainant was advised to report to the Director of Patient Accounts on May 16, 2016, at his current tour of duty teleworking from home with an expected return to his regular position on June 6, 2016. The memo further stated that the temporary assignment was being made at Complainant’s request to be removed from his chain of command pending the AIB investigation. It was not expected that the duties of the detail would require any direct contact with any member of regular chain of command. Subsequently, the AIB issued findings which concluded in part: The relationship between [the Associate Director] and [Complainant] seems to be very contentious. While the specific examples from [Complainant] did not indicate harassment, considering the circumstances in their entirety indicate that a reasonable person in this situation may feel as though they are subject to a hostile work environment.” However, the undersigned notes there was no indication that the harassment was based on any protected class which is required under the laws enforced by EEOC. The AIB also reviewed Complainant’s concerns regarding the processing of his leave requests. The AIB concluded that [the Associate Director] based his approval on work requirements and the evidence showed that [Associate Director’s] s failure to process Complainant’s leave request was not intended to harass Complainant. 5 2022000582 Despite its conclusion that the Associate Director’s conduct was not motivated by discriminatory factors, the AIB did recommend that disciplinary action be considered against the Associate Director for the use of offensive, hostile, disrespectful, insulting and/or otherwise unprofessional language or tone in workplace interactions with subordinate employees; and conduct unbecoming a supervisor. On July 20, 2016, Complainant emailed the OCC Director and stated, “I am once again requesting a Reasonable Accommodation: Non-competitive Reassignment to a vacant position per The Americans With Disabilities Act Amendments Act of 2008 and The Rehabilitation Act as amended.” Hearing Exh. 4. On July 20, 2016, the OCC Director forwarded the email to the Director. On July 21, 2016, the Director responded to the OCC Director confirming that Complainant had not responded to the RA team’s prior attempts to engage in the RA process, and she provided a recommended response referring Complainant again to the RA team. However, Complainant’s last day of employment with the Agency was July 23, 2016, as he transferred to another federal agency effective July 24, 2016. Here, the AJ correctly determined that neither of the two emails Complainant sent in February 2016, could reasonably be considered requests for reasonably accommodations. Rather, they appear to be complaints to the OCC Director about the Associate Director’s treatment of Complainant. Similarly, the April 2016 emails requesting assignment away from his management cannot also be reasonably interpreted as an accommodation request. The reason Complainant said he was asking for the reassignment was due to the ongoing AIB investigations. We do note, however, that this request was granted, and Complainant was placed on a temporary detail under another chain of command. It was not until May 2016, that Complainant’s emails reference an accommodation request. Management immediately referred him to their RA Specialist, who provided Complainant with prompt information about the reasonable accommodation process and how to submit a request. It is undisputed that Complainant never submitted a request as suggested. Finally, on July 20, 2016, Complainant, by email to the OCC Director, asked for a permanent reassignment to a position that was not under the Director or Associate Director as an accommodation to his medical condition(s). However, with days and before this request could be acted upon, Complainant left his employment with the Agency on July 23, 2016. Under these circumstances, we concur with the AJ that there is no evidence that the Agency denied a request for reasonable accommodation from Complainant in violation of the Rehabilitation Act. By the time he made what could reasonably be construed as an accommodation request, he resigned almost immediately, and the Agency had no time to act on the request.3 3 We note the AJ also cited case precedent that an Agency need not provide a complainant with a new supervisor as a form of reasonable accommodation. Moreover, Complainant was qualified and could perform the essential functions of his current position (the non-supervisory GS-13 position), and there was no need for the Agency to reassign him, as reassignment is an accommodation of last resort. 6 2022000582 Claim B: Reassignment to Non-Supervisory Position A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. Texas Dep’t. of Cmty. Affairs 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the AJ correctly determined that responsible management officials provided legitimate, non-discriminatory reasons for the decision to reassign Complainant to a non-supervisory position. In a memorandum dated February 4, 2016, the Associate Director, with the approval of the Director, issued to Complainant a Notice of Failure to Satisfactorily Complete the Supervisor/Manager Probationary Period and Assignment to Non-Supervisory Position. The memorandum provided a detailed explanation of why Complainant was being reassigned to a non-supervisory position for failure to satisfactorily complete his supervisory probationary period. On June 10, 2016, the Director rescinded the February 4, 2016 notice after discovering that Complainant had been informed by a staffing specialist prior to accepting his supervisory position that he would not need to complete a supervisory probationary period. On June 10, 2016, the Director reissued a memorandum to Complainant notifying him that she was reassigning him to the position of Senior Employee and Labor Relations Specialist, GS-13, effective June 12, 2016. The position was at the same grade and rate of pay. 7 2022000582 The Director testified that her decision to reassign Complainant “was based on his failure to demonstrate his ability to perform successfully and credibly the duties of the supervisory program chief position.” ROI, p. 95. She explained, with a number of examples, that she believed Complainant had failed to establish himself as the program leader both with his team and with their customers. She testified that many of his team members felt they could not go to him for technical guidance and were frustrated with how long it took him to provide feedback on quality reviews. The Director stated that in November 2015 she initiated a management assessment of the program. In January 2016, the assessment found that there was dysfunctional leadership in their organization including Complainant and the Associate Director. For several weeks following presentation of the findings, she met with the leadership team, but Complainant only attended two sessions and had limited participation, leading her to believe he was not committed to working with the other members of the leadership team to rebuild the leadership team dynamic.4 The AJ went on to conclude that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management witnesses for his reassignment were a pretext masking discrimination or unlawful retaliation. In reaching this conclusion, the AJ found that during the hearing, Complainant attempted to air a variety of grievances mainly directed toward the Director, who was his second-line supervisor. The AJ noted that during the hearing the Director was subjected to over 10 hours of questioning. The AJ found the Director to be a credible witness concerning the legitimate reasons proffered for deciding to reassign Complainant to a non-supervisory position. On appeal, Complainant has failed to establish the AJ erred in concluding after a hearing that the evidence did not support his discrimination claim. The AJ’s decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions which were not proven to be a pretext to mask discrimination is abundantly supported by substantial evidence in the record, as referenced above. Our review of the record uncovers no reason to challenge the AJ’s credibility determination regarding the testimony of the Director about why she decided to reassign Complainant. Beyond his bare assertions, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, color, sex, disability or retaliatory animus. CONCLUSION We AFFIRM the Agency's final order because the Administrative Judge’s ultimate finding, that unlawful employment discrimination/retaliation was not proven, is supported by substantial evidence of record. 4 The Associate Director had left the Agency by the time of the hearing and did not testify before the AJ. He did provide an affidavit during the investigation. 8 2022000582 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). 9 2022000582 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 March 2, 2023 Date