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

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021000624 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kirby S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000624 Hearing No. 430-2017-00226X Agency No. 2004-0558-2016-10909 DECISION On October 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Disabled Employee Special Emphasis Coordinator, GS-12, Education Service at the Agency’s Durham VA Medical Center in Durham, North Carolina. On March 3, 2016, Complainant filed a formal complaint alleging that he was subjected to harassment and a hostile work environment based on race (African-American), color (Black), disability, age (61), and in reprisal for protected EEO activity (prior activity) 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. 2021000624 2 1. From October 2012 to January 6, 2016, the Chief, Library Service (Chief), came into Complainant’s office making comments about his prior EEO complaint, inquiring into the status as well as asking what he hopes to get out of it in terms of resolution; 2. On or about April 2013, the Chief tricked Complainant into meeting with an Office of Inspector General (OIG); 3. From November 22, 2013 to December 15, 2015, the Chief made unwanted comments, joked and criticized Complainant regarding his weight, appearance, size, health, appetite and choice of meals; 4. On October 29, 2015, Complainant received a Performance Appraisal with a rating of “Fully Successful” when his job performance was commensurate of a rating of “Excellent;” 5. On January 8, 2016, the Chief informed Complainant he was considering removing him from a collateral-duty position; 6. On January 19, 2016, the Chief called Complainant at home asking of his whereabouts and demanded he come into work on his compressed day; 7. As of January 28, 2016, Complainant has not received a response from the Assistant Chief, on his March 15, 2015 reasonable accommodation request to obtain assistive technology to communicate with deaf clients; 8. From February 2 - 25, 2016, the Chief made unauthorized entries into Complainant’s files and allowed another employee to enter and search through files, and records of disabled clients; 9. On March 2, 2016, the Chief presented Complainant with a memorandum ordering Complainant to cease and desist from assisting and advising disabled veteran employees with VA benefits and claims because it is not in Complainant’s current position description; 10. On March 18, 2016, Complainant was not allowed to work on the Disabled Client’s Inventory in his office where he had access to his electronic visual aids; 11. On March 16 and 18, 2016, the Chief informed Complainant he would only approve his request for annual leave on the condition Complainant’s office was ready to be moved to another location; 12. On March 22, 2016, the Chief repeatedly questioned Complainant as to when he was going to retire; 2021000624 3 13. On April 1, 2016, Complainant was rated “Needs Improvement” on his mid-term performance rating; 14. On August 8, 2016, the Chief removed personal belongings or items assigned to Complainant without informed him; 15. On an unidentified date, the Chief accused Complainant of sleeping on the job; and 16. On an unidentified date, the Chief changed Complainant’s compressed tour schedule. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, Complainant filed a Motion for Reinstatement on March 6, 2018, and the Agency filed a Response in Opposition to the Reinstatement on March 19, 2018. Complainant filed a Motion for Reconsideration on April 4, 2018. The AJ denied Complainant’s Motion for Reinstatement and Motion for Reconsideration. On September 29, 2020, the AJ issued a summary judgment decision finding no discrimination. In its September 30, 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021000624 4 Reasonable Accommodation: Claim 7 Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. Here, Complainant identified his disabilities as Traumatic Brain Injury, Post- Concussion Syndrome, Persistent Post-Traumatic Headache, Anxiety Disorder, Cognitive Impairment and a shoulder injury. We will assume without deciding that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Complainant identified his disability as legal blindness. He claimed he had not received a response from the Assistant Chief relating to his March 15, 2015 reasonable accommodation to obtain assistive technology to communicate with deaf clients. The Assistant Chief stated that on March 25, 2015, Complainant requested the Interpretype ITY C.20 communication system.2 She explained that Complainant was legally blind and as part of his job, he frequently communicated with deaf clients by hand-written note, which was slow. She admitted she did not order the requested equipment in a timely manner and that was the gist of it. Furthermore, the Assistant Chief stated her negligence was in no way a discriminatory act against Complainant. Complainant claimed he has not received a response from the Assistant Chief relating to his March 15, 2015 reasonable accommodation to obtain assistive technology to communicate with deaf clients. Moreover, the AJ found, and the record so supports, that the instant reasonable accommodation request did not concern Complainant’s abilities to perform the essential functions of his own position. Harassment/Hostile Work Environment: Claims 1 - 16 Complainant has alleged that Agency management created a discriminatory hostile work environment. To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases - in this case, his race, color, disability, age and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, color, disability, age or prior protected activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2 Interpretype is an interactive communication system which allows deaf employees to communicate with a non-deaf employee who is unable to use or see sign language i.e., blind employee having routine contacts with deaf clients. 2021000624 5 Regarding claim 1, the Chief (Caucasian, color (White), age: DOB 1956, 60) testified that he asked Complainant about his schedule only to obtain information concerning tour of duty changes and information regarding Complainant’s compressed work schedule. Regarding claim 2, the Chief denied attempting to trick Complainant to meet with an OIG investigator and from the teleconference held concerning the pending allegations, the AJ found that Complainant can only speculate about the Chief’s intentions. Regarding claim 3, the Chief asserted that Complainant told him he wanted to lose weight and that was the reason the Chief would even make a comment about Complainant’s food intake. He acknowledged that several years previously, he and Complainant would talk periodically and he expressed concerns about his weight and that he was trying to lost weight. During the staff luncheon, Complainant walked by him with a large portion of dessert and “I did say to [Complainant], ‘That’s a large portion,’ and he took that, apparently,, the wrong way, and that was the one comment that I did make, but I am concerned about his health.” Regarding claim 4, Agency management explained that the “Fully Successful” was commensurate with Complainant’s work and evidence that Complainant was performing well. Regarding claim 5, the Agency explained that the Chief wanted Complainant to fulfill his primary work obligations for his position, and was unaware of the collateral duties Complainant was executing. Regarding claim 6, the Chief admitted he made a mistake when he called Complainant at home on his flex day and that was Monday, and “I mistakenly got the date wrong…I’d forgotten it was his flex day, so it was my mistake.” Regarding claim 7, the Agency explained, as noted above, that Complainant was requesting a reasonable accommodation that was outside the Reasonable Accommodation process and did not concern Complainant’s own ability to perform the essential functions of his position. Regarding claim 8, the Agency explained that the Chief would enter Complainant’s office to take out trash at times. During one such entry, he discovered an unlocked cabinet full of protected health information files. The Privacy Officer (Caucasian, white, DOB: 1974) stated that on February 9, 2016, she was asked by the Chief to review medical records contained in a file cabinet in Complainant’s office. She stated that she entered the office at the Chief’s request, as the Chief was concerned that the Complainant had medical records in his office when his job description did not allow for his access to patient health information. The Privacy Officer recommended that if Complainant did not need these files for his official job duties, then they should be returned to the individuals. 2021000624 6 Regarding claim 9, the Chief presented Complainant a memorandum ordering him to cease and desist from assisting and advising disabled veterans employees with VA benefits and claims because such work was not in Complainant’s current position description. The Chief noted that Complainant was disappointment “because, again, he takes a lot of pride in doing this work.” Regarding claim 10, the Chief testified that Complainant was on sick leave and emailed him asking if he could send his Disabled Employee Special Emphasis Program (DESEP) worksheet so that he could work at home. The Chief informed Complainant that he could not do that because he was not approved for telework and that he was on sick leave, and that the DESEP worksheet was sensitive information and it was not appropriate to send it to his personal email. Regarding claim 11, the Chief asserted that Complainant’s leave was approved but was contingent upon Complainant packing up his office before taking the leave because he was scheduled to have an office move. Regarding claim 12, the Agency denies that the Chief asked Complainant about his anticipated retirement date. Regarding claim 13, the Chief stated that Complainant failed to successfully maintain a spreadsheet about disabled employees, which was a critical element of his position. Regarding claim 14, the Chief testified that Complainant was on leave during the day of his office move, and various equipment from Complainant’s office needed to be moved, including items that belonged to the hospital. Regarding claim 15, the Chief stated that based on his observations, he believed Complainant was sleeping on the job although he did not issue any discipline action from the incident. Regarding claim 16, the AJ did not expressly address this claim. However, given the AJ’s determination that Complainant comprehensively did not establish harassment motivated by discriminatory animus, the record supports the AJ’s ultimate findings. We shall nonetheless address this claim in some detail, as follows,. On an unidentified date, the Chief changed Complainant’s compressed tour schedule. He testified that on October 15, 2012, Complainant was temporarily detailed to Education Service under his supervisor. The Chief indicated at that time, Complainant requested a compressed tour to accommodate personal needs. The Chief approved Complainant’s request for a compressed tour. On September 16, 2015, Complainant requested a new compressed tour to accommodate his personal and work related needs, which the Chief approved. Furthermore, the Chief noted that Complainant’s compressed tour had been changed twice over the last four years and that the changes were effected at the request of Complainant. 2021000624 7 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination. 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. 2021000624 8 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. 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 August 15, 2022 Date