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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022001390 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odis H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001390 Hearing No. 450-2020-00256X Agency No. 2003-0629-201402084 DECISION On January 16, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 16, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the relevant period, Complainant worked as a Psychology Technician at the Agency’s Southeastern, Louisiana Veterans Healthcare System in New Orleans, Louisiana. On April 10, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that that the Agency discriminated against him based on race (Asian-American), national origin (Chinese-American), disability, and in reprisal for protected EEO activity (prior EEO complaints starting in 2011) when: 1. On July 3, 2019, the Psychologist and Program Manager, also Complainant’s first- line supervisor began to assign Complainant with data entry work, which has a GS-5 level of complexity, to perform weekly and nearly full-time. 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. 2022001390 2 2. After the Psychologist and Program Manager, (who is also Complainant’s first-line supervisor) assigned Complainant data entry tasks in July 2019, Complainant’s repeated requests to receive formal training to understand Structured Clinical Interview for DSMV (SCID) test was denied. 3. Since the beginning of August 2019, the Chief of Staff, has failed to respond to Complainant’s appeal to the alternative Reasonable Accommodation request. 4. On September 12, 2019, the first-line supervisor wrongfully accused the Complainant of missing a deadline to complete a data entry task. 5. On October 30, 2019, the Service Chief concurred with the first-line supervisor’s assigned performance ratings of Complainant, without offering Complainant a chance to appeal. 6. On October 30, 2019, the first-lime supervisor rated Complainant “Unacceptable” in three of his elements on the Fiscal Year (FY) 2019 Performance Appraisal. 7. From November 13 through December 9, 2019, the Human Resources Specialist failed to take any actions responding to the Complainant’s written request of reasonable accommodation, in which Complainant’s doctor issued a medical order to limit him from working with his first and second line supervisors. 8. From November 17, 2019, thru December 9, 2019, the Chief of Staff failed to respond to the Complainant’s appeal to his performance appraisal rating. 9. On November 19, 2019, the first-time supervisor failed to approve Complainant’s request for one week of training to observe how his peers complete the weekly assignment of 10 BHIP/SCID and other required job tasks at the same time in the same week. 10. On April 16, 2020, the Program Specialist did not approve Complainant’s request to change a statement on VA Form 0857h (Accommodation Request Determination). After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. However, on December 13, 2021, pursuant to 29 C.F.R. § 1614.109(g)(3), the AJ issued a decision by summary judgment in favor of the Agency, concluding no discrimination had been established as alleged. The instant appeal followed. 2022001390 3 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 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 specifically, 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 has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in factor of Complainant, a reasonable fact-finder could not find for Complainant. Reasonable Accommodation: Claims 3 and 7 Under the Commission's regulations, a federal employer 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. 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 EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Complainant has asserted that he was diagnosed over three years before the events at issue with a generalized anxiety disorder and panic attacks. By letters dated February 18, 2019, and April 3, 2019, Complainant’s physician recommended management representatives use written communication instead of face-to-face interaction or telephone interaction to communicate with Complainant. In a subsequent letter dated May 31, 2019, the physician stated Complainant could attend group meetings with his current supervisor or upper-level managers if there was “an unbiased person there as well such as a union representative.” 2022001390 4 Here, it appears that Complainant pursued an accommodation to either change his supervisors or have no interaction at all (oral or written) between himself and his supervisory chain. However, the Commission has stated that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Reasonable Accommodation Guidance, at Q. 33. The AJ noted that the alternative accommodation put in place by Agency management was for Complainant’s interaction with supervisors to be mainly limited to writing, and that the evidence showed Complainant was never interacted with, outside of emails, following this accommodation. We note that although individuals protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not necessarily entitled to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not shown that the alternative accommodation provided him was not effective. Therefore, assuming that Complainant was an individual with a disability, we find that Complainant did not show that he was denied a reasonable accommodation or that any Agency actions were motivated by discrimination in violation of the Rehabilitation Act. Hostile Work Environment To prove his hostile work environment 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 a protected basis - in this case, his race, national origin, disability or engagement in prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The AJ properly determined that Complainant did not establish a hostile work environment claim predicated upon discriminatory or retaliatory animus. As an initial matter, the AJ expressly determined that regarding allegations 1, 2, 4 and 5, Complainant did not even respond to the questions of the EEO investigator regarding these matters. Therefore, he did not meet his burden of establishing that his treatment regarding these matters was the result of discrimination or retaliatory animus. Denial of Training: Allegations 2 and 9 Management witnesses explained that Complainant’s training requests were made in response to their expressing concern to him that he frequently missed established deadlines for data entry. As a result, they provided him with several weeks of one-on-one training, but indicated that Complainant’s work performance did not measurably improve. Beyond Complainant’s bare assertions, there is no evidence that management was motivated by discriminatory or retaliatory animus when they provided the training, they believed would be most effective in improving Complainant’s work performance. 2022001390 5 Performance Rating/Accused of Missing Deadlines: Allegations 4 and 6 Management witnesses averred Complainant was rated “unsuccessful” because he failed to perform assigned duties. His supervisor stated Complainant was assigned duties consistent with his position, that he had straightforward assignments, but that Complainant’s performance was poor and had an impact upon patient care. The supervisor indicated that Complainant failed to successfully perform basic tasks and felt that his duties were beneath his grade and preparation level. The supervisor emphasized, however, that Complainant was given clear tasks within reasonable time frames, and that no discriminatory animus motivated Complainant’s rating. Regarding claim 4, the record reflects that any accusation of missed deadlines was consistent with the Agency assessment that Complainant did not comply with reasonable time frames. Again, there is no evidence, beyond Complainant’s unsupported speculation, that these matters were motivated in any way by discriminatory or retaliatory animus. In sum, Complainant’s claim of a hostile work environment in violation of Title VII 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. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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. 2022001390 6 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. 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. 2022001390 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 29, 2023 Date