0120150216
02-23-2017
Zachery V.,1 Complainant, v. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachery V.,1
Complainant,
v.
David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150216
Agency Nos. 200P-0519-2013102688 and 2003-0519-2014101233
DECISION
On October 14, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 10, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., and 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 which found that Complainant was not denied a reasonable accommodation; subjected to discrimination, a hostile work environment or a constructive discharge.
ISSUE PRESENTED
The issue presented in this case is whether the Agency denied Complainant a reasonable accommodation which resulted in his being subjected to discrimination, a hostile work environment and constructive discharge.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a My Healthy Vet Coordinator, GS-11 at the Agency's VA Medical Center facility in Big Springs, Texas. On January 22, 2013, Complainant emailed his request for reasonable accommodation to the Associate Director. Complainant requested that he be allowed to change his schedule and that he be provided with software that would help him do his job. Complainant wanted a ten-hour four-day compressed work week with Fridays scheduled off. He was told by the Associate Director to make the request to his supervisor but Complainant wanted the request to be a reasonable accommodation so his request was forwarded to the Reasonable Accommodation Committee (RAC).
On February 4, 2013, Complainant contacted RAC about his request. He was told that no information had been received regarding the requested tour change. On March 25, 2013, Complainant asked the Associate Director about the tour change that he had requested in January 2013. Complainant was again told that it was unnecessary for him to submit an application to RAC, and that he only needed to submit his request for a tour change to his supervisor. On March 27, 2013, Complainant submitted an application to RAC requesting a tour change as a reasonable accommodation. Complainant explained that he submitted his request to the RAC so that he would receive the tour change as a reasonable accommodation and as such his supervisor would not have the authority to change his tour.
On March 28, 2013, Complainant was told that his RAC request for a tour change would require more medical documentation. Complainant was also told by RAC that he could simply submit a request to his supervisor for the tour change. On April 12, 2013, Complainant made another written request to the Associate Director for a tour change. He expressed his frustration in his difficulty obtaining the tour change as a reasonable accommodation. In response, the Chief of Human Resources reminded Complainant that he had been told that he needed to meet with an HR Specialist to inform him of the tour that he wanted. Complainant met with the HR Specialist that day and a tour change document was circulated for the required signatures.
On April 15, 2013, Complainant filed an EEO complaint alleging that he had not received the requested tour change. He indicated that he had used all of his leave for medical appointments. Complainant received the approved tour change on April 17, 2013. Complainant maintained that he was dissatisfied with the delay in providing him the tour change.
Complainant also requested as a reasonable accommodation a computer software program entitled "Word Cue." On February 21, 2013, Complainant was told that the software had been purchased. As part of the software manufacturer's procedures it required direct contact with the software licensee and user to, among other reasons, discuss his eligibility to receive free software through CAP. After the manufacturer was unable to reach Complainant, a Human Resource Specialist facilitated contact between Complainant and the manufacturer. Complainant received the software on either May 8 or 9, 2013. Complainant used the software for a month without a problem; thereafter, it stopped working. The Office of Information Technology found that the license had expired. At this same time, Complainant broke his ankle and went out on medical leave for two months and did not return to work until the end of August 2013. Complainant did not report the expired software license to any management official until October 31, 2013.
In June 2013, Complainant requested full time telework as a reasonable accommodation for an injury he suffered as a result of a fall. Complainant broke his ankle and required time away from the office for surgery and rehabilitation. Complainant's request was denied because his position did not allow telework because he had to maintain day to day contact with the public.
Complainant alleged that he was subjected to a hostile work environment and reprisal when he was told that his performance rating was being reduced from an "Excellent" to a "Fully Successful" after it was discovered that a mistake had been made on his performance evaluation because a box had been checked by mistake. As a result of the mistake, Complainant maintained that he was not given a performance award. Complainant indicated that the Agency's actions compelled him to resign and accept a position at another VAMC due to the harassment he experienced.
Thereafter, Complainant filed the following complaints:
200P-0519-2013102888
Complainant alleged that he was discriminated against based on disability (mental and physical), reprisal (current EEO complaint and reasonable accommodation requests) when:
(A) On January 22, 2013, he requested a software program and a change of tour as reasonable accommodations which were approved, but not provided until April 2013; and,
(B) On June 25, 2013, his request for telework as a reasonable accommodation was denied.
2003-0519-2014101233
Complainant alleged that he was subjected to a hostile work environment based on disability (mental and physical) and reprisal (prior EEO complaint) when:
1. On November 19, 2013, he was told that his performance rating was being reduced from excellent to fully successful;
2. On December 17, 2013, he was not given a performance award; and
3. On February 8, 2014, he felt compelled to resign from his position due to a hostile work environment and accepted a position at another facility.
At the conclusion of the investigation, the Agency consolidated the claims and 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, a hostile environment, or a constructive discharge as alleged.
Specifically, the Agency maintained that Complainant was the reason for the delay with regard to his request for a schedule change. Management indicated that Complainant was told when he first proposed a schedule change that he could receive it by simply making a request to his supervisor. Complainant refused this suggestion on several occasions and chose to forward his request as a reasonable accommodation. Moreover, Complainant did provide documentation or information requested by RAC which also contributed if not caused the delay.
With respect to the software, the Agency maintained that it ordered the software and did everything in a timely manner on its part but Complainant did not respond to the manufacturer's request to speak to him. Complainant also did not alert management to any problem with the software until some two months after he realized that there was a problem because he was out on leave. Management also indicated that Complainant's request for telework was denied because his job was not telework eligible as he worked directly with the public.
Regarding, Complainant's allegation that his performance appraisal was lowered from an Excellent to a Fully Successful, management explained that a new supervisor completed the evaluations for all of the employees in Complainant's unit. HR returned Complainant's and another employee's performance evaluation because the supervisor erroneously checked boxes on the evaluation forms for rating elements that did not support the overall rating. A copy of Complainant's evaluation showed that the boxes marked for two of the individual critical elements indicated "Exceptional" ratings on those elements, and one boxed marked for a third critical element indicated a "Fully Successful" rating for that element. The instructions on the appraisal form indicated that an overall rating of "Excellent" required ratings of "Exceptional" in all three critical elements. On November 19, 2013, Complainant was told about the error and was told that a correction needed to be made. The Agency maintained that this correction had nothing to do with Complainant's disability or prior EEO activity.
The Agency indicated that Complainant did not receive an award because he did not receive an "Excellent" performance evaluation. The Agency maintained that Complainant's protected bases had nothing to do with him not getting an award. He did not get an award because he received a "Fully Successful" rating and this rating was not eligible for an award.
Finally, management maintained that Complainant was not subjected to a constructive discharge. The Agency explained that he did not leave the Agency but simply transferred to another location that was closer to his family who had moved to East Texas. The Agency indicated that Complainant had been applying for positions in other areas for some time. Moreover, the Agency maintained that even though Complainant did not qualify for an award, he received extra time off to assist him with the preparation of his move.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency failed to engage in the interactive process in a timely manner. Complainant requests that the Commission find that he was subjected to discrimination and was denied a reasonable accommodation.
In response, the Agency maintains that Complainant failed to provide any facts which support his position that the decision should be overturned. The Agency contends that Complainant's brief merely recounts his claims and provides documentation outlining legal definitions and the legal standards for establishing disability discrimination or reprisal.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant was a qualified individual with a disability, he did not establish that he was denied a reasonable accommodation. We note at the outset that he received the change to his duty hours and was provided the software he requested. Although there were some delays, we do not find that the delays were unreasonable under the circumstances of this case. We also note that Complainant's actions contributed to the delays. Moreover, we find that Complainant's request to telework was not a reasonable accommodation because his position required that he interact with the public.
Further, we also find that Complainant did not establish that he was subjected to a hostile work environment. We find the incidents complained of even if considered as a whole were normal work related incidents that occur in an office setting and were not severe or pervasive enough to establish a hostile work environment.
Finally, we find that Complainant has not demonstrated that he was subjected to a constructive discharge. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant did not establish that his claim because he did not show that his working conditions were intolerable. Moreover, we found that he was not discriminated against; therefore, we must conclude that Complainant did not establish that his resignation constituted a constructive discharge.
On appeal, Complainant contends that the Agency did not engage in the interactive process in a timely manner. We find that the record does not support this assertion. The record shows that Complainant's actions greatly contributed to much of the delay, e.g., he did not follow instructions to make the request for a tour change to his supervisor, he did not talk to HR in a timely manner, he did not provide medical documentation to the RAC, and he did not contact the manufacture of the software nor was management aware that his license had expired until October 2013.
CONCLUSION
Accordingly, we AFFIRM the Agency FAD which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal, or a hostile work environment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__2/23/17________________
Date
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.
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