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

Equal Employment Opportunity Commission

Sep 15, 2022

Appeal No. 2021000833 (E.E.O.C. Sep. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayson R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000833 Hearing Nos. 570-2016-00815X, 570-2017-00996X Agency Nos. 2004-0010-2015103117, 2004-0688-2016100301 DECISION On November 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 16, 2020 final decision concerning his equal employment opportunity (EEO) complaints 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. Complainant worked as a Management Analyst, GS-0343-11, at the Central Office of the Veterans Health Administration in Washington, D.C. His position was located within the National Surgery Office (NSO). Complainant stated that he experienced a traumatic brain injury (TBI) while on active duty in the military in Afghanistan and was subsequently diagnosed with post-traumatic stress disorder (PTSD). Complainant testified that his conditions cause cognitive impairments affecting his multi-tasking, attention, concentration, and focus. Complainant was a Presidential Management Fellow (PMF). PMFs are hired through a program administered through the Office of Personnel Management (OPM) which allows individuals who apply and are accepted into the program to rotate through developmental details at different agencies or sub-agencies. 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. 2021000833 2 Developmental details are at least four months in length but no longer than six months, and PMFs remain employees of their original agency and are paid out of the budget of the original agency when on detail. Complainant began his fellowship in October 2013. From May 2014 through August 2014, Complainant was on a detail assignment to the Agency’s Office of Disability and Medical Assessment. In August 2014, Complainant served in a developmental detail at the Small Business Administration (SBA. Complainant returned to the NSO in February 2015. Disciplinary Actions On February 19, 2015, Complainant was instructed to cross train with another employee for two weeks as his primary responsibility. Complainant was again reminded of this instruction on February 20 and 27, 2015. Complainant was expected to be able to take over the administrative tracking roll at the daily meeting beginning on March 2, 2015. On March 2, 2015, Complainant was instructed to take over these administrative responsibilities, but did not do so. Complainant explained that he had “very little hands-on experience” with the required software and that he had only spent about three hours cross training. As a result, the Director of Operations (DO) issued Complainant a Letter of Reprimand for Failure to Follow Instructions. On April 27, 2015, Complainant was required to attend and participate in the daily meeting. Complainant failed to attend the meeting. Complainant explained that he saw DO the morning of the meeting and “didn’t want to deal with it” so he went to meet with the Local Reasonable Accommodation Coordinator (LRAC). On May 18, 2015, Complainant was issued a Letter of Proposed Suspension for Failure to Follow Instructions. DO stated that after receiving the letter, Complainant tore up the letter and placed it on his desk instead of signing an acknowledgement of receipt. The National Director of Surgery ultimately upheld the proposed three-day suspension. Reasonable Accommodation Requests While at SBA, Complainant was provided several reasonable accommodations including permission to use a digital recorder for meetings, an ad hoc telework agreement requiring at least one day notice, a gliding schedule between 6:00 a.m. and 6:00 p.m., and permission to conduct telehealth appointments in a private room or to align his ad hoc telework days to allow him to conduct his appointments from home. When Complainant returned to the Central Office, he learned he would need to request accommodations directly to the Agency. Complainant initially requested to be reassigned to the SBA. The DO denied the request as Complainant had been detailed to SBA for the maximum length of a PMF developmental detail. Complainant then requested a sliding schedule, ad hoc telework, the use of a digital recorder, the ability to schedule two 15-minute breaks and a lunch break throughout the day, and the ability to conduct telehealth appoints in a private space or at home during telework. Complainant’s request for a sliding schedule was not granted because the facility had established core hours. Complainant was allowed to adjust his tour of duty to start between 7:30 a.m. and 8:30 a.m. Complainant claimed that the denial of the sliding schedule caused him to use annual leave on two days in February 2015, to attend medical appointments. 2021000833 3 In addition, Complainant was granted the use of a digital recorder, but not for use in meetings pursuant to Agency policy. Complainant was given extra time to take and prepares notes and to then verify the contents of those notes. Further, Complainant was moved to a smaller cubicle area and provided memory assistance software. Finally, Complainant was granted ad hoc telework for telehealth appointments. Complainant had requested a white board and was provided a pad of paper while waiting for the white board to be ordered. On May 7, 2015, Complainant sent an email to the DO stating that he had located three PMF rotational offers of employment to leave the Agency until October 2015. He asked that the Director of Operations support him in this goal, as well as finding a permanent position elsewhere. The DO stated that he supported a search for a position for Complainant as a reasonable accommodation and he would also support Complainant if he found a permanent reassignment position outside of the reasonable accommodation process. The DO, however, would not support another PMF rotational assignment that was not a permanent reassignment or a reasonable accommodation as it would keep Complainant’s position open and unfillable and the Agency would have to continue to pay him out of its budget. On June 8, 2015, LRAC sent Complainant an offer for a permanent reassignment for a position at the Washington D.C. VA Medical Center. The supervisor of that position, however, subsequently rejected the reassignment. LRAC located a Voluntary Services Specialist position and LRAC later met with Complainant, DO, and a PMF official about how a reassignment would affect Complainant’s participation in PMF. Complainant decided to accept the position and terminated from the PMF program. Thereafter, it was discovered that the Voluntary Services Position would not be compatible with Complainant’s reasonable accommodation needs as the position required irregular hours and would not have an office for a three to six-month period. Based on emails between LRAC, DO, and other officials, DO emailed Complainant stating that it was his understanding that the reassignment had been canceled and that Complainant should perform his normal duties and assignments. LRAC clarified that the assignment had not been canceled, that a more suitable position was being located, and that Complainant should attend a two-day general orientation while the search continued. On June 26, 2015, Complainant worked on out-processing and attended the two-day new employee orientation at the D.C. VA Medical Center while another suitable position was being located. Complainant was subsequently assigned to a position as an Administrative Officer in Radiology, GS-11, at the VA Medical Center in Washington, D.C. The position was originally a GS-12 position but was downgraded to GS-11 so that Complainant could be placed into it. Complainant requested the use of a white board, written assignments, and permission to use a voice recorder as accommodations. The Chief of Radiology (Chief) told Complainant that he would try to work with him, and Complainant requested a position description for the Administrative Officer position. Complainant claimed that after seeing his resume, the Chief told Complainant that he was not qualified for the Administrative Officer position and they would look to see if there was another job description or position available for him. The Chief stated that he was trying to assign Complainant duties he could perform, but that Complainant had no experience in the position and appeared to not be comfortable with his duties. 2021000833 4 The Chief said that he did everything he could to accommodate Complainant, but Complainant told him that he wanted to return home to Altoona and that he did not feel qualified to perform the duties of the position. Resignation Complainant expressed that he wished to return to the Central Office, but leadership declined the request. A Program Specialist in the Veterans Outreach and Employment office stated that officials worked diligently to locate a position in Altoona suitable for Complainant. Complainant remained in the Administrative Officer position for approximately one month before resigning. Agency officials agreed to allow Complainant to remain in an LWOP status while a search was conducted for available positions in Altoona. On August 19, 2015, Complainant was informed that no available position in Altoona could be located and that his resignation was accepted and would be processed effective August 21, 2015. On June 26, 2015, Complainant filed a formal EEO complaint (Agency No. 2004-0010- 2015103117 (Complaint 1)) in which he alleged that the Agency discriminated against him on the bases of disability (TBI and PTSD) and in reprisal for prior protected EEO activity when: 1. On February 19, 2015, the Director of Operations (DO)2 denied Complainant’s reasonable accommodation requests for a sliding schedule and the ability to use video or voice recordings; 2. On February 19, 2015, Complainant requested reassignment as a reasonable accommodation but was not notified whether it was approved or denied; 3. On February 23 and 26, 2015, Complainant was forced to use annual leave when his request for a sliding schedule was denied; 4. On March 31, 2015, Complainant was issued a Letter of Reprimand; 5. On May 18, 2015, Complainant received a Letter of Proposed Suspension; 6. On June 19, 2015, Complainant received a Notice of Decision - Three-Day Suspension; 7. On June 25, 2015, the DO notified Complainant that his personnel action for reassignment was removed and his request for administrative leave for June 26, 2015 was no longer approved; and 2 DO separated from the Agency on June 27, 2015, and consequently, he did not provide an affidavit during the investigation. 2021000833 5 8. On June 26, 2015, the Assistant Director of Support notified Complainant and the DO that Complainant’s assignment had not been cancelled and the DO refused to change Complainant's status from Leave Without Pay (LWOP) to Administrative Leave (AA) for June 26, 2015. On October 25, 2015, Complainant filed a second formal EEO complaint (Agency No 2004-0688- 2016100301 (Complaint 2)) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity when: 9. On June 29, 2015, Complainant was advised during orientation that the position he had transferred into was not there, and that a position would be located for him; 10. On June 30, 2015, Complainant’s reasonable accommodation requests for a white board and similar accommodations were not granted; 11. On July 27, 2015, Complainant was informed that he was not qualified for the GS-12 Administrative Officer position for which he had been given a position description; 12. On July 31, 2015, Complainant was placed in LWOP status pending placement to a position in either the Agency’s Central Office or Altoona, Pennsylvania, and as of August 14, 2015, the situation had not been resolved; and 13. On or near August 26, 2015, Complainant became aware that he had been separated from civil service without notice and the reason stated for the separation was he resigned from his position. Following investigations, the Agency provided Complainant with the investigative reports for Complaint 1 (IR1) and Complaint 2 (IR2), along with notice of his right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on both complaints, and the AJ assigned to hear the cases consolidated them. On April 29, 2019, Complainant withdrew both hearing requests. On October 16, 2020, the Agency issued its final decision finding that Complainant was not subjected to discrimination as alleged. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 2021000833 6 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”). Disparate Treatment To prevail on a claim of disparate treatment, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The DO issued Complainant a formal reprimand for his refusal to attend cross-training with a staff member who would be retiring and whose duties Complainant would thereafter be assuming. IR1 476, 619-21, 701-03. Complainant had previously received a letter of counseling in September 2014 and a letter of admonishment in January 2015 for failure to follow instructions to keep his supervisor informed of his activities. IR1 697-99. The three-day suspension was issued by the DO on the charge of failure to follow instructions. According to the DO, Complainant was required to attend a meeting on April 27, 2015 and had failed to do so despite knowing that his attendance at that meeting was imperative. The DO noted that Complainant’s failure to attend that meeting had put the program office and work product at risk. IR1 481, 622-24, 704-06, 873-74. The Director of Surgery Services (DS) averred that in signing off on the suspension, he considered Complainant’s prior disciplinary actions. IR1 542-43, 625-27, 707-17, 877. Complainant and management officials, however, were unsure if Complainant actually served the suspension. With respect to the claims regarding leave, Agency policy required that Complainant and other employees use their annual leave for time that they spent not working. This included time traveling, attending medical appointments, or other activities. As to Complainant’s request that he be retroactively granted administrative leave instead of LWOP which he had originally requested, officials noted that Complainant did not have an entitlement to administrative leave as he was not working and had exhausted all of his annual and sick leave. Regarding his reassignment, LRAC explained that officials supported Complainant and hoped he would be successful in a different position that would accommodate his medical conditions. Officials diligently searched for a position based on Complainant’s restrictions and allowed him to attend new employee orientation while a position was located. Complainant was subsequently placed in the Administrative Officer position and his supervisor expressed a willingness to work with him to accommodate his needs. There is no supporting evidence demonstrating that any official told Complainant he was not qualified for the position. 2021000833 7 Finally, with regard to his resignation, approximately a month after being placed in the Administrative Officer position, Complainant expressed his unhappiness and desire to return to Altoona. In August 2015, Complainant met with Human Resources officials and informed them that he was resigning. The officials urged Complainant not to resign and to give them the opportunity to locate a suitable position for him. They agreed to place Complainant in LWOP status for two weeks while a search was conducted. When no position was located, Human Resources processed Complainant’s resignation. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked why he believed that he had been discriminated against because of his disabilities and EEO activity, Complainant averred that it was because he was a wounded veteran trying to help other wounded veterans. IR 440-41. Beyond his own assertions, Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than himself nor documents that contradict or undercut the explanations provided by various named management officials. Likewise, Complainant has not presented documentary or testimonial evidence that would cause us to question the truthfulness of those officials as witnesses. As Complainant chose to withdraw his request for a hearing on both complaints, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, the record evidence is not sufficient to establish the existence of a discriminatory or retaliatory motivation on the part of any of the officials. Denial of Reasonable Accommodation An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 2021000833 8 We find at the outset that Complainant is a qualified individual with a disability. IR1 639-42, 654, 959-64; IR2 431-33. We note that while he is entitled to an effective reasonable accommodation, Complainant is not entitled to the accommodation of his choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019). Here, as discussed more fully above, Complainant was provided several of the requested accommodations and alternative accommodations. As to allegations (1) through (3), the DO disapproved of Complainant’s request for a sliding schedule because the facility had established core hours which did not work with a sliding schedule, but DO did agree to adjust Complainant’s schedule to allow him to start between 7:30 a.m. and 8:30 a.m. as needed. IR1 783, 864. The DO also directed Complainant not to record any NSO meetings due to concerns that the security of confidential information could be compromised. IR1 865. Complainant was, however, given extra time to take notes and to verify the contents of those notes. LRAC1 confirmed that Complainant’s requests for reasonable accommodation were never denied. IR1 610. Additionally, Complainant was granted ad hoc telework and a modified work. IR1 454, 693-95. With regard to allegations (7) and (8), the Agency attempted to reassign Complainant from the NSO to the Agency’s medical facility in Washington D.C. An SF-50 notice of personnel action dated June 27, 2015 indicated that Complainant was being transferred to another station within the same department. A second SF-50 notice dated June 28, 2015, described the nature of the action as a reassignment. IR1 544-45. 629-31. 718; IR2 486, 489. Complainant had specifically requested leave without pay for June 22, 23, and 24, 2015. IR1 631, 725-26, 875-76, 883. With respect to allegations (9) through (13), LRAC averred that Complainant was transferred to the position of Voluntary Specialist at the D.C. Medical Center as a reasonable accommodation, that Complainant was offered the position of Administrative Officer when it was discovered that the Voluntary Specialist Position would not be suitable. Complainant unsuccessfully attempted to secure a position at the Agency’s medical center in Altoona, Pennsylvania, and that Complainant ultimately resigned from the Agency on August 21, 2015. IR2 373, 379-80, 403-04, 407, 416-18, 421, 431, 434, 436-37, 440-44, 446-54, 490, 516-20, 530, 872. After reviewing the evidentiary record in its entirety, we find that Agency officials made diligent attempts to provide Complainant with several reasonable accommodations prior to his resignation. Ultimately, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment in connection with allegations (1) through (13), we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the various named officials were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021000833 9 CONCLUSION 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 decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021000833 10 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. 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 September 15, 2022 Date