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

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2021002432 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neal O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002432 Hearing No. 520-2020-00470X Agency No. 200H-0301-2020101287 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 23, 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 the events set forth in this decision, Complainant held a one-year probationary position as a Vocational Rehabilitation Counselor at the Boston VA Regional Office in Boston, Massachusetts, beginning on September 15, 2019. Complainant’s first-level supervisor was S1, the Assistant Vocational Rehabilitation Employment Officer. Complainant’s second-level supervisor was S2, the Vocational Rehabilitation Employment Officer. Complainant listed his disabilities as bipolar disorder, episodic mental health disorder, and general anxiety disorder. He also alleged that he engaged in EEO activity when he requested reasonable accommodation for his disabilities in November 2019, and when he contacted an EEO Counselor on December 12, 2019, regarding the instant complaint. 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. 2021002432 2 On February 4, 2020, Complainant filed a formal complaint alleging that management officials discriminated against him and subjected him to a hostile work environment based on his disability and prior EEO activity when: 1. From October 2019, through February 21, 2020, he was subjected to unwelcome comments, texts, emails, meetings, rumors, verbal abuse, false accusations, false statements, online attendance training, being encouraged to disclose his disability to others, verbal counseling, and negative monthly reviews; 2. On November 26, 2019, his requested reasonable accommodation was denied; 3. On December 10, 2019, his requested reasonable accommodation was denied again; 4. On December 12, 2019, he was assigned a new mentor, which he believed further undermined the reasonable accommodation process; 5. On January 15, 2020, he was made to use sick leave instead of being allowed to use flex time; 6. On January 27, 2020, he felt compelled to sign a reasonable accommodation agreement that he felt would not be effective because management would not approve his requested reasonable accommodation or provide him with a reason why it was denied; 7. On January 30 and 31, 2020, he was made to use sick leave instead of being allowed to use flex time; 8. On February 21, 2020, he was terminated during his probationary period; and 9. On February 28, 2020, he was notified that he was not selected for the Readjustment Counseling Therapist position he applied for as a reasonable accommodation for his disability because his request was not forwarded to the hiring office for the position.2 2 Complainant’s allegation that he was dissatisfied with the processing and handling of mediation, i.e., Alternative Dispute Resolution, was not accepted for investigation and dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Complainant does not appear to challenge the dismissal of this claim on appeal, but to the extent he is challenging, we AFFIRM the dismissal of this claim. 2021002432 3 At the conclusion of its investigation of the complaint, 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). Complainant requested a hearing, but on January 7, 2020, the AJ dismissed his hearing request and remanded the complaint to the Agency for the issuance of a final decision within sixty days upon finding that Complainant had engaged in contumacious conduct when he “[r]epeatedly failed to cooperate.” According to the AJ, Complainant was given multiple opportunities to follow the rules regarding discovery and opportunities to provide a valid reason for his refusal to comply. The Agency subsequently issued a decision finding that it did not discriminate against Complainant with respect to any of his claims. This appeal followed. On appeal, Complainant argues, that the Agency’s final decision was untimely in that it was issued after the sixty-day period ordered by the AJ had expired. He also maintained that the AJ abused her discretion by not recusing herself after a November 5, 2020 Conference when she denied his rights. He denied the AJ’s assertion that he engaged in contumacious conduct when he was unable to accommodate the Agency’s limited discovery dates. Complainant maintained that two of his three minor children had recently tested positive for COVID. Complainant also noted that during the period that the Agency had scheduled the deposition he had no childcare because it was during the holiday and school vacation period and he was concerned that any distractions would jeopardize his children’s health. Complainant also accused the AJ of abusing her discretion by not extending the deposition timeframe, and by denying his motion for a continuance to allow for a mutually agreeable deposition date. Finally, Complainant argued that he was an active participant in the hearing and discovery process citing his numerous filings and responses. The Agency, in pertinent part, argues that we should uphold the AJ’s sanction and affirm its 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”). At the outset, we turn to Complainant’s request for sanctions against the Agency for its delay in issuing a final decision on the merits of his complaint. We note that the Agency concedes that its final decision was issued 75 days after the AJ issued her Order. 2021002432 4 Therefore, it was 15 days late. While we find that the Agency’s delay exceeded the Commission’s regulatory timeframes for issuing final decisions, we find that sanctions are not warranted under the circumstances of this case. Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)). We take this opportunity, however, to remind the Agency of its obligation to adhere to the Commission’s regulatory timeframes and issue final decisions in accordance with 29 C.F.R. § 1614.110(b). AJ’s Dismissal of Complainant’s Hearing Request According to the AJ, on November 5, 2020, she convened a telephonic Initial Pre-Hearing Conference (Conference). During a discussion regarding discovery, Complainant suddenly became extremely agitated and disruptive. Complainant, she stated, interrupted her and talked over her, repeatedly, despite her attempts to redirect him and her instructions to stop interrupting. The AJ stated that Complainant refused to answer her questions about what specific discovery he was seeking and insisted that the conversation immediately focus on matters other than discovery. When the AJ explained that they would discuss other matters such as motions and witnesses later, Complainant, she stated, refused to wait. Complainant demanded that she deny the Agency’s Motion for Summary Judgment, rule that the case must be settled, and that she proceed immediately to the hearing so that he could present his witnesses and his evidence. According to the AJ, Complainant would not stop speaking long enough to allow the Agency Counsel to respond to anything he was saying. Complainant accused her of being biased, demanded a new AJ, and threatened to file a complaint against her. Later that day, Complainant wrote the AJ stating that she had: “violated the general standards of an employee of the executive branch” in that she “presided like some scorned bully.” As a result, he stated that: “[A]ny discovery process and related timeline will not be honored on my behalf. The only ruling I will accept is the scheduled hearing date of April 19th, 2021.” (Emphasis added). On November 6, 2020, the AJ issued a Post Conference Order (Order) in which she noted that: The Complainant insisted that my efforts to stop his contumacious behavior means that I am biased, and he demanded that another AJ preside in this case. I will treat his request as a motion to recuse. The motion is DENIED, as I am not biased against the Complainant or his case. He has not shown that I am unable to fairly and impartially decide his case. I will not permit Complainant, however, to disrupt any further proceedings as he did yesterday. Any further disruptive behavior on Complainant’s part may result in sanctions as explained below. The AJ noted that she was permitting the Agency to pursue discovery, including Complainant’s deposition, with all discovery to be completed by January 5, 2021. 2021002432 5 She also indicated that she further informed the parties that the failure to comply with her orders may result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3), including the issuance of a decision fully or partially in favor of the opposing party. On December 14, 2020, the Agency scheduled Complainant’s deposition for December 30, 2020. Complainant, by email responded, “I received your virtual deposition request and will advise you that I am unavailable on the date/time you proposed (12/30 at 10:00AM). I will get back to you today to advise of some other options prior to the discovery deadline.” Having received no alternate dates to the deposition on December 16, 2020, Agency Counsel sent an email to Complainant requesting that he provide three alternate dates for the deposition between December 28, 2020 and January 5, 2021. Complainant responded on December 16, 2020, stating “in regard to the Deposition request, please see the below, alternative dates/times that I am available.” Complainant offered the following alternative dates: Wednesday, 12/30/20: 3:00PM; Thursday, 12/31/20: 10:00AM; and Monday, 1/4/21: 3:00PM. The Agency accepted Complainant’s proposed alternate date of December 31, 2020. By email dated December 17, 2020, the Agency sent Complainant a Notice of Deposition for December 31, 2020. On December 18, 2020, however, Complainant rescinded his agreement to attend his deposition on any of the three dates he had proposed two days earlier, stating, “Unfortunately, due to Covid- 19 related family issues, the 12/31/20 date will not work for myself. Neither will the other dates I provided. Please provide some alternative dates I will see if I am available.” The Agency Representative requested that Complainant advise her as to what date he would be available between December 28, 2020 and January 5, 2021. Complainant responded: Due to Covid-19 related issues that have come up with my family and impacted my current schedule, I am unable to provide a set date/time at this moment. Due to childcare and work obligations, as well as the holiday season, I am unable to meet during any AM times until AFTER the new year. I also have work obligations the first week of January 2021 that would preclude any ability to meet on 1/4/21 or 1/5/21. The Agency should send me several dates/times and I will do my best to make one work. By email dated December 18, 2020, the Agency asked Complainant to provide a telephone number at which he could be reached. Complainant provided no contact telephone number. As such, the Agency filed a Motion to Compel on December 21, 2020. The AJ, on December 23, 2020, after receiving Complainant’s response, ruled that Complainant failed to demonstrate good cause for refusing to provide the relevant discovery that was requested. Specifically, the AJ found that: Complainant’s arguments as to why he cannot sit for his deposition are not persuasive. He requested a hearing in this case, which obligates him to comply with my Orders, including my November 6, 2020 Order following the Prehearing Conference (Order). That Order provided that the Agency may depose the Complainant, with all discovery being completed by January 5, 2021. For the 2021002432 6 Complainant to provide not a single day prior to the discovery deadline during which he can sit for his deposition is unacceptable. He specifically chose December 31, 2020 as a date he would be available and has provided no documentation that the date no longer is possible. Instead, he has determined that he will not sit on any date. Accordingly, as to that issue, the Agency’s motion will be granted. The AJ also noted Complainant’s failure to respond to the Agency’s Interrogatory 11. The AJ found that because Complainant placed at issue his lengthy commute as part of his disability discrimination claim, his response was relevant and that the question was not duplicative of other interrogatories, as Complainant claimed. The AJ did agree with Complainant that Interrogatory 13 was not relevant. Complainant was therefore ordered to appear for his Deposition on December 31, 2020, and to respond to Agency Interrogatory No. 11 no later than December 30, 2020. The record indicates, however, that Complainant failed to appear at his December 31, 2020, virtual deposition, and failed to answer Interrogatory No. 11 as ordered, which resulted in the Agency’s Motion for Sanctions (MFS). The AJ, in granting the Agency’s MFS, found that the most appropriate sanction was to dismiss the hearing. The AJ found that: From the outset, the Complainant has refused to comply with my Orders, and he has been otherwise contumacious. For example, he exhibited disruptive, rude, and threatening behavior at the Conference; he delayed and refused to cooperate with Agency Counsel regarding discovery; and he refused to comply with my Order compelling him to answer Interrogatory No. 11 and to appear at his deposition, without a documented excuse. The AJ also found that “there is no evidence that Complainant’s failure to respond or appear is the result of mere negligence or a miscommunication between the parties,” and that the Agency was prejudiced by Complainant’s failure to appear at the scheduled deposition of December 31, 2020, as ordered, because not only would it result in an unnecessary expense to the Agency of having to cancel a court reporter, but also, it would prevent the Agency from obtaining or developing relevant evidence to its defense in this case. The Agency had noted a lack of information provided by Complainant in the record regarding the specific comments, texts and emails, meetings, rumors, verbal abuse, false accusations, and false statements at issue in claim 1. Finally, we note the AJ’s determination that she gave “Complainant numerous opportunities to participate in the hearing phase of this case despite his contumacious behavior. However, he continued to refuse to cooperate.” 2021002432 7 The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant’s hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with the AJ’s orders. Id. When a party fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances: (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; (iv) Issue a decision fully or partially in favor of the opposing party; or (v) Take such other actions as appropriate. 29 C.F.R. § 1614.109(f)(3). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and to prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non- complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. We have consistently held in our more recent decisions that the dismissal of a hearing request as a sanction is only appropriate in extreme circumstances. One such circumstance is when a complainant engages in contumacious conduct, not merely negligence. See Wilma B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020003672 (Dec.2, 2021). Cassey B. v. Dept’ of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020); Cecile T. v. Dep’t of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020); Carolyn M. v. U.S. Postal Serv., EEOC Appeal No. 2019004843 (Mar. 10, 2020). Examples of contumacious conduct warranting dismissal of hearing requests include: Charlie K. v. Dep’t of Veteran Affairs, EEOC Appeal No. 2019002293 (Sept. 22, 2020) (failure to provide investigative affidavit during agency investigation and failure to provide answers to interrogatories during discovery despite being granted multiple extensions in both phases of the proceedings, as well as failure to appear at pre-hearing conference); and Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 012081406 (Feb. 28, 2020) (failure to participate in email communications being sought by the agency and to produce documentation ordered by AJ in a manner demonstrating disregard for the administrative process and unwillingness to comply with AJ’s orders despite warning of consequences). 2021002432 8 With the foregoing considerations in mind, we find that Complainant engaged in the kind of willful or obstinate refusal to comply with an AJ’s orders that typifies contumacious conduct, and which justified the dismissal of his hearing request. In his November 5, 2020, response to the AJ, Complainant stated that: For your unprofessional actions and obvious bias towards myself and my due process, I will be requesting that another AJ preside over my case. Therefore, any discovery process and related timeline will not be honored on my behalf. The only ruling I will accept is the scheduled hearing date of April 19, 2021. This will give myself plenty of time to obtain an attorney to assist me in seeking damages not only from the defendant but, potentially, from any actions resulting from your behavior today or in any tainted summary judgment. Complainant repeatedly cited his two minor children’s positive COVID tests and his childcare responsibilities as the reason that he was unable to participate in the scheduled December 31, 2020 deposition, or to propose an alternative date, prior to January 5, 2021. The AJ noted that Complainant had mentioned “vaguely” that COVID related issues had come up with his family “[n]umerous times, but he has never explained what ‘Covid-19 related issues’ means or documented that any one in his family is actually ill.” The AJ also noted that Complainant did not demonstrate that COVID related issues, or any other issues, prevented him from attending a virtual deposition in his own home on some date between December 14, 2020, when the Agency first requested his deposition, until January 5, 2021, when the discovery period closed. Although Complainant did not provide information or evidence to the AJ regarding the COVID reason, he did submit documentation on appeal. Complainant submitted evidence showing a positive COVID result concerning his 13-year old child dated August 26, 2020, and a positive COVID result for his 16-year old child dated August 29, 2020. Because these test results were over four months old at the time of the scheduled December 31, 2020, deposition, we find no persuasive evidence that childcare or health concerns would reasonably have prevented him from sitting for a virtual deposition from his own home on December 31, 2020. We find that Complainant’s repeated failure and effective refusal to take part in his deposition, coupled with his other actions cited by the AJ, constituted such contumacious behavior to justify the AJ’s cancellation of the hearing. We also find no abuse of discretion by the AJ with respect to the other matters raised by Complainant. Merits of the Complaint With respect to claim 1, Complainant stated that S1 and S2 began to treat him with hostility after he requested reasonable accommodation for his disabilities. 2021002432 9 Specifically, Complainant maintained that S1 and S2 counseled him regarding unimportant matters like how slowly he left the building when a fire alarm was sounded and a “training error” associated with asking his mentor to transfer cases to him. Complainant also stated that they sent him unnecessary emails and made unnecessary comments about him. With regard to claims 2, 3, and 4, the record indicates that, on October 28, 2019, Complainant requested reasonable accommodation for his disabilities. Complainant requested that he be allowed to telework on Mondays, Tuesdays, and Fridays, and that he be given a private workspace on days he worked in the office. Complainant stated, in part, “My work focus is impacted as I am working in a confined, shared workspace to conduct interviews and complete work tasks. The nature of my disabilities are enhanced . . . I have experienced a diminished ability to focus and learn new aspects of my position due to a confined workspace and daily distractions that cannot be avoided without a more private workspace and/or a flexible work schedule.” Complainant’s limitations, as described by his health care provider, were that he had trouble focusing, concentration, learning, interacting with others and performing tasks. In its November 26, 2019 response the Agency did not grant all of the accommodations requested by Complainant but offered alternative accommodations of a 15-minute modified flex period and ability to change his tour of duty within the 6:00 a.m. through 6:00 p.m. time period, liberal use of sick leave, choice of several available private work spaces, and noise canceling headphones. The Agency’s written offer stated that the offered accommodations were effective for Complainant’s stated disability-related needs because the accommodations permitted him the flexibility needed to perform the essential functions of his position by having a flexible schedule, the ability to change his schedule as needed, liberal use of sick leave to accommodate medical appointments, access to several available private workspaces, and noise canceling headphones to minimize distractions. Complainant requested reconsideration of the Agency’s determination on November 26, 2019. S2 responded on December 10, 2019, by including two additional accommodations in its offer, i.e., an on-site mentor in addition to Complainant’s current off-site mentor, and 30 minutes of flexible break time to be used at Complainant’s discretion. S2 stated that the offered accommodations were effective for Complainant’s disability-related needs because an on-site mentor would assist him with detail-oriented training to help Complainant learn job tasks. S2 also stated that Complainant was offered a regular schedule for his private workspace. Regarding claims 5 and 7, Complainant stated that he was forced to use sick leave rather than flex time three times in January 2020. S2 maintained that Complainant was required to use sick leave instead of flex time on the dates in question because he was late for work and did not have a flex time agreement in place on the dates in question. Specifically, S2 indicated that Complainant declined the Agency’s offered reasonable accommodations, which included an offer of flex time, and that no accommodations were in place on the dates in question. 2021002432 10 S2 noted that she informed Complainant at the time that he was required to use leave because he had declined the Agency’s offered accommodations and he did not have accommodations in place. S2 stated that Complainant responded by stating that he declined the Agency’s offered accommodations because the offered accommodations were not the accommodations he requested and if he accepted them, he would minimize the significance of his original request. S2 maintained that she encouraged Complainant to accept and utilize the offered accommodations. With respect to claim 6, Complainant stated that, on January 27, 2020, he accepted the offered accommodations even though he did not believe that they were effective accommodations for his restrictions. Complainant stated that he also requested that he be reassigned to the vacant position of Readjustment Counseling Therapist as a reasonable accommodation but that he was not selected because management failed to forward this request to the selecting official (claim 9). Regarding claim 8, Complainant was terminated during his probationary period, effective February 21, 2020. He maintained that his termination was due to management’s discriminatory and retaliatory animus towards him. S2 stated that Complainant was terminated during his probationary period for unacceptable performance and conduct; not due to discriminatory or retaliatory motives. The record indicates that Complainant’s FY19 Performance Appraisal, which covered the time period of September 15, 2019 to December 13, 2019, was rated, “Needs Improvement.” According to the appraisal, Complainant needed improvement on both critical and non-critical elements including production, program and data integrity, cooperation and organizational support, and customer service. His performance issues included: his caseload not meeting the requirements for production, timeliness, and quality for November 2019, and December 2019; not exemplifying good customer service and making decisions that negatively impacted veterans when, without informing his supervisor, he incorrectly informed a veteran that the Agency would not support their taking the Law School Admission Test or going to Law School; not complying with program directives when he changed a veteran’s status without having a signed plan in place and without staffing the change through his supervisor; not acting in the best interest of a veteran during a fire drill when he had to be prompted twice to evacuate the building, while he was meeting with the veteran; not cooperating to accomplish work objectives in a team setting; and not demonstrating a demeanor that promoted the Agency’s mission when, during a discussion with a coworker, his demeanor was described as “[r]ude, condescending and as if he was speaking to a subordinate.” The Agency maintained that Complainant’s documented conduct issues included: acting in an unprofessional and discourteous manner and using demeaning language toward colleagues; demonstrating a pattern of disrespect toward staff; and acting in an unethical manner that did not support veterans or his team, and which created discord within the office. 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, 2021002432 11 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”). Reasonable Accommodation - Claims 2, 3, 4, 6, and 9 Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). 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 him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). An individual with a disability is ““qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § 1630.2(n)(3). The Commission has long held that individuals protected under the Rehabilitation Act are not entitled to the accommodation of their choice, but to an “effective” accommodation. See Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020); Enforcement Guidance at Question 9. Assuming, arguendo, Complainant is a qualified individual with a disability, we find that the Agency provided him with an effective reasonable accommodation. Complainant requested telework three days per week and a private office space to accommodate his need to work free from distractions and to attend disability-related appointments. The Agency determined that Complainant’s duties required him to interact with veterans daily, so telework was not an effective accommodation. A review of Complainant’s position description indicates that VRCs develop and maintain liaison contacts and serve as advocates for disabled veterans with other public and private agencies, service providers, training facilities, employers, and other community resources who promote the rehabilitation of the veteran clientele. The work is primarily in an office setting. 2021002432 12 Most of the duties involve conducting individual and group counseling sessions to provide information and assistance to severely disabled veterans with complicated rehabilitation plans. For example, VRCs conduct comprehensive initial evaluations to determine the existence of a vocational impairment and whether the impairment constitutes an employment disability, the severity of the employment disability, the feasibility for achieving a vocational goal, entitlement to rehabilitation benefits, and the need for independent living services. They also assist the veteran by exploring and identifying rehabilitation needs, goals, and objectives; by developing and implementing an individualized plan of rehabilitation services; and by providing problem solving counseling. When a veteran is found to not be entitled to services, VRCs are responsible for making recommendations and referrals to other sources that may be able to help. The position also includes “limited” case management responsibilities including: coordination of all rehabilitation services, employment services, documentation of progress and adjustment and maintenance of case records according to Agency regulations; providing training and supervision to contract service providers to assure that services are appropriate and in accordance with accepted professional standards; assessing employability and assisting in the development of an employment assistance plan; working closely with other services within the Agency and other public and private agencies to ensure that the veteran receives the full range of services necessary to achieve vocational rehabilitation; developing or participating in outreach activities in partnership with schools or military units to ensure service members and veterans are aware of Agency benefits and healthcare available to them; and acting as a liaison with local military installations, particularly with the military personnel involved in the medical evaluations and discharge process and other support activities. As an alternative to Complainant’s request, the Agency offered a 15-minute modified flex period and the ability to change his tour of duty within the 6:00 a.m. to 6:00 p.m. time period, liberal use of sick leave, the choice of several available private workspaces, noise canceling headphones, and an on-site mentor. The Agency’s found that the offered accommodations were effective because the accommodations permitted Complainant the flexibility needed to perform the essential functions of his position by having a flexible schedule, the ability to change his schedule as needed, liberal use of sick leave to accommodate medical appointments, access to several available private workspaces, and noise canceling headphones to minimize distractions. The Agency also provided that the alternative accommodations would be reviewed in 90 days to evaluate their effectiveness. On appeal, Complainant notes that two employees could telework because of their reasonable accommodations, and he also provided the minutes from an October 8, 2019 staff meeting where the possibility of reducing intake days from two to one day per week was discussed. Complainant stated that he needed accommodations in order to minimize distractions to provide an atmosphere conducive to concentrating, the freedom to attend disability-related appointments, and to receive the flexibility to address his unexpected disability-related issues. Like the Agency, we find, with respect to claims 2 and 3, and 6 that the offered accommodations addressed each of Complainant’s needs, and do not find persuasive evidence that they were ineffective. 2021002432 13 Complainant, for example, maintained that being provided a private office space for his use was not a reasonable accommodation because vacant office space could be utilized by his coworkers without a reasonable accommodation. Management, however, indicated that unlike his coworkers, Complainant would be provided a definite schedule for his use of designated office space. We also note that in providing a reasonable accommodation, employers engage in an interactive process with an employee to find an effective accommodation. The fact that two of Complainant’s coworkers may have been allowed to telework to accommodate their disabilities, which are not addressed in this record, does not establish that Complainant’s disabilities could not be effectively accommodated by alternative means. Regarding claim 4, Complainant maintained that he was denied a reasonable accommodation when the Agency provided him an on-site mentor, which was never part of his accommodation request. According to Complainant, the Agency undermined “the whole interactive process, because this was not any part of my RA request. I didn’t ask for, you know, additional training.” Complainant felt that working with a remote mentor supported his request to telework as a reasonable accommodation. S1 stated that an on-site mentor was added as an additional reasonable accommodation to assist with detail-oriented training to help Complainant learn job tasks since one of his identified limitations was Learning/Performing Tasks. S2 stated that “[C]omplainant was notified that he was being provided with a primary mentor in the same office to provide more hands-on mentoring and [to] be more accessible.” Complainant’s original mentor, who was in another office out of state, became his back up mentor. S2 stated that this change was put in place to assist Complainant with overcoming performance and conduct issues. We do not find that Complainant was denied a reasonable accommodation when he was assigned an on-site mentor. Complainant’s contention that his reasonable accommodation request was undermined by the Agency’s action is premised on his belief that he was entitled to telework; we, however, agree with the Agency that telework was not an effective accommodation here because Complainant would not have been able to perform the essential functions of his position. Finally, with respect to claim 9, Complainant made clear that he requested that he be reassigned to the vacant position of Readjustment Counseling Therapist as a reasonable accommodation. He did not argue that that he should have been selected because he was the most qualified applicant for the position. Like the Agency, the Commission notes that it has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that would enable a complainant to perform the essential functions of his or her current position, or all other reasonable accommodations would impose an undue hardship. See Enforcement Guidance. In this case, we find that the Agency could have effectively accommodated Complainant in his position without reassignment and that these accommodations were offered to Complainant. 2021002432 14 Sick Leave/Flex Time - Claims 5 and 7 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant establish a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for why Complainant had to use sick leave rather than flex time three times in January 2020. S2 maintained that Complainant was required to use leave instead of flex time because he was late for work and did not have a flex time agreement in place on the dates in question. S2 noted that Complainant had declined the Agency’s offered reasonable accommodations, which included an offer of flex time, and that no accommodations were in place on the dates he was late. We find no persuasive evidence of pretext. Termination During Probationary Period - Claim 8 Assuming, arguendo, Complainant establish a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s termination, and find no persuasive evidence of pretext. Complainant maintained that his termination, on February 21, 2020, was in reprisal for advising S1 and S2 that day that he would not attend a February 24, 2020 meeting he had requested with them without a union representative. The Agency argued that although there may have been a temporal relationship between the email discussion and the notice of termination, there was no causative relationship. S2 recommended Complainant’s termination as early as February 14, 2020. Her recommendation was forwarded to the Director for a decision and was subsequently approved. 2021002432 15 On appeal, Complainant noted that he had showed improvement in January 2020, but, as the Agency noted, in his 4.5 months as an employee, Complainant accomplished one job ready decision, while the annual standard was 8; therefore, he needed at least two to be fully successful at that point in his probationary period. Moreover, according to the Agency, Complainant had accomplished zero positive outcomes,3 and the annual standard was 11; therefore, he needed at least four to be fully successful at the point he was terminated. Employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Complainant v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Where a complainant is a probationary employee, like Complainant, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Complainant v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). We find no evidence that discrimination played a role in Complainant’s termination. Harassment - Claim 1 To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of 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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 3 The record indicates that: [The] number of positive outcomes is a combined measure of the number of Chapter 31 Employment Rehabilitations, Continuing Education Rehabilitations, Independent Living Rehabilitations, and Maximum Rehabilitation Gains (MRGs): employed, but not suitably employed or employable and Chapter 18 and 35 Rehabilitations achieved during a 12-month rating period. This standard should be prorated for the rating period if the employee has less than 12 months in the position. 2021002432 16 According to Complainant, from October 2019, through February 21, 2020, he was subjected to unwelcome comments, texts, emails, meetings, rumors, verbal abuse, false accusations, false statements, online attendance training, being encouraged to disclose his disability to others, verbal counseling, and negative monthly reviews. With respect to Complainant’s claim of hostile work environment, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). In so finding, we note that many of the alleged actions involve Complainant’s objections to ordinary supervisory instructions and feedback. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep't of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. We also find no evidence linking these matters to Complainant’s disability or prior EEO activity. We specifically note his contention that he was encouraged to disclose his disability to others. S2 stated, however, that she never made such a suggestion. According to S2, she spoke to Complainant shortly after a series of altercations involving Complainant and his coworkers, where he did not show professionalism. According to S2, when Complainant was offered the ability to use other staff’s office space as a reasonable accommodation, she asked him if he was confronted, how would he handle the situation, had he thought about what he might say, and what details he might share when asked why. S2 stated that she told him that “[i]f he opened himself up a bit and didn’t respond defensively that he may build bridges with staff.” S2 maintained that she encouraged him to think about how someone might approach him and that he should work on developing an appropriate response. S2 denied ever telling him to share information about his disability, and that the goal was to assist him with developing effective communication strategies.4 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 4 The record contains a copy of an email, dated December 11, 2019, from S1 to Complainant. S1 explained that, “[w]e have developed a room schedule for you so that you have access to private space throughout the week. Please leave each space in the condition that you found it. I will notify each staff member that you will be using their space throughout the week.” Based on this email, it would seem to have been unnecessary for S2 to ask Complainant to divulge his disability to his coworkers because they would have already been informed by management that he would be using various offices. 2021002432 17 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). 2021002432 18 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 8, 2022 Date