[Redacted], Marty A., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021003781 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marty A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003781 Agency No. ARRILEY20OCT03219 DECISION On June 19, 2021, 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 26, 2021 final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Service Order Clerk, GS-0303-05, at Fort Riley in Kansas. On November 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical and mental) when, on October 21, 2020, Complainant’s second-level supervisor (S2) issued Complainant a memorandum of Termination of Appointment during a trial period, terminating his employment effective the same day.2 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 The Agency dismissed an additional claim for untimely EEO Counselor contact. Complainant raised no challenge regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2021003781 2 In February 2020, Complainant was hired into a term appointment, not to exceed February 4, 2021, with a trial period. Complainant testifies that he experiences complications from chronic migraines, sleep apnea, back pain, knee, ankle, and feet pain, Post-Traumatic Stress Disorder (PTSD), depression, and anxiety. As a result of his conditions, Complainant asserts he has an inability to concentrate, needs to lay down in a dark room to recover from his migraines, and experiences extreme anxiety and depression. These conditions impact his sleeping, walking, standing, lifting, bending, concentrating, and cause him to be forgetful. The record reflects that on July 22, 2020, Complainant sought telework as a reasonable accommodation. The Agency temporarily allowed Complainant to work from home for one week, between July 27 and 31, 2020. On August 7, 2020, the Agency granted Complainant alternative accommodations which included rearrangement of the Service Order work office to allow Complainant more privacy, allowing Complainant the freedom of stepping out of the office as needed to regain composure within reason, and ensuring that Complainant would be able to visit the Employee Assistance Program if desired. According to the Notice of Termination, Complainant’s termination was due to “performance and/or conduct reasons, including but not limited to attendance-related misconduct; lack of candor; poor communication; and failure to perform [his] assigned duties.” Specifically, on October 15, 2020, Complainant requested and received approval for four hours of Veterans Administration (VA) leave for an appointment at the local VA Clinic. However, Complainant departed the workplace before his approved leave began, and then returned late. Additionally, Complainant “displayed a lack of candor by using some of [his] leave which had been approved for medical reasons to attend a job interview with another section/branch” of the Agency. Complainant protested that he should not have been terminated because he needed to be accommodated and because he was not given an opportunity to respond to the Agency’s decision to terminate him. Complainant asserted that text messages will show he constantly communicates with his supervisor (S1) and that he is punctual to work and performs his assigned duties to the best of his abilities. Complainant admitted he had a job interview on the same day as his appointment at the VA Clinic, but argued that it was a telephonic interview instead of an in-person interview. Complainant denied that he abused his leave privileges. S1 explained that Complainant misled his supervisors in using four hours of VA Leave when he had a job interview. S1 agreed that Complainant communicated with him but believed that “not all communication was effective or honest.” S1 added that he had previously counseled Complainant on March 5, 2020, regarding his being in Absent Without Leave (AWOL) status. That counseling explained that Complainant was scheduled be at work at 12:30 p.m. on February 28, 2020 and had affirmed on his payroll timesheet that he worked eight hours that day. However, when S1 asked what work Complainant performed that day, Complainant said he arrived at work to find the door locked, and after knocking and receiving no response, Complainant went home without attempting to contact S1 or any other supervisor. Accordingly, S1 adjusted Complainant’s time to reflect that he was AWOL. 2021003781 3 Complainant argues that the March 5, 2020 counseling was improper because he did not have a copy of the keys to the building like other clerks, and that S1 took him to get keys the next day. S1 said that Complainant could have been released following the March 5, 2020 memorandum but he wanted to give Complainant another chance. A coworker (CW1) explained by affidavit that he worked with Complainant multiple times and that Complainant “would allow the phone to ring multiple times, and he was not on the phone, causing the rest of the clerks to pause their calls to answer the phone, or he would put someone on hold for a long time.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant reiterates his argument that he did not abuse leave privileges, and that his performance was adequate. In an attempt to discredit the Agency’s articulated reasons, Complainant criticizes S1’s testimony as speculation because there is no independent evidence demonstrating Complainant did not adequately perform his duties, and that there is no agreed-upon standard on what is meant by putting a customer on hold for too long. Accordingly, Complainant requests that the Commission reverse the final decision. 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 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 in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2021003781 4 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as more fully explained above. S1 explained that Complainant appeared to have displayed insufficient candor on at least two occasions. First, Complainant averred on his payroll timesheet that he worked eight hours on February 28, 2020, when in fact he had gone home without contacting any supervisor. Second, Complainant asserted he needed four hours of VA Leave to attend an appointment at the VA Clinic; however, Complainant both exceeded his leave request by a total of approximately 30 minutes and used part of the time to attend a job interview. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of City. Affairs v. Burdine, 450 U.S. 248, 256 (1981). As Complainant did not request a hearing, 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. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted based on discriminatory animus. Complainant failed to carry this burden. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. 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 decision. 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. 2021003781 5 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). 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. 2021003781 6 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 12, 2022 Date