Arturo A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172010 (E.E.O.C. Dec. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arturo A.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172010

Hearing No. 570-2016-00629X

Agency No. 200403972015102698

DECISION

On May 19, 2017, 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
April 13, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 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 Claims Assistant,
GS-6, at the Agency’s Appeals Management Center in Washington, DC.

On June 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (African-
American), disability (knee replacement), and age (unspecified) when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. from December 8, 2014 through March 1, 2015, Complainant’s sixth-level
supervisor (S6) denied Complainant’s request for Advanced Leave, placed
Complainant on 240 days of Leave Without Pay (LWOP), and charged
Complainant Absence Without Official Leave (AWOL) for eight hours;

2. on March 3, 2015, S6 failed to explain the reason for denying Complainant’s
request for advanced leave;

3. on March 14, 2015, Complainant received notice of his move from the fifth floor
to the fourth floor of the facility where Complainant continued to work in the same
position performing the same duties;

4. on March 17, 2015, Complainant received notice of his AWOL status for March 6,
2015 because S6 denied Complainant’s LWOP request for that date, which was
classified by the Agency as a snow day with approved unscheduled leave; and

5. on March 23, 2015, Complainant relocated to the processing center in connection
with the notice referenced in claim (3).

The record reveals that Complainant suffered from knee conditions that necessitated knee
replacement surgery. Complainant avers that he also incurred an infection that prolonged his
recovery. The Employee Relations Specialist (ER-1) stated that the Agency was aware
Complainant had a knee replacement and asked Complainant if he was interested in reasonable
accommodation. There is no evidence in the record that Complainant specifically requested an
accommodation. ER-1 also said that Complainant was not transferred; rather, he was moved to a
different team that performed the same job. According to ER-1 “[d]uring the year, the coaches
move people around to work with different teams.

As to the enumerated claims, ER-1 explained that approval of LWOP is at the discretion of
Complainant’s supervisor. ER-1 also recalled that Complainant requested advance leave, but the
Agency had a policy at that time that no one would receive advance leave. ER-1 explained that
advance leave is different from LWOP in that advance leave keeps the employee in a paid status
while the employee is not paid in LWOP status. S6 denied any knowledge of Complainant’s
allegations.

The Agency furnished Complainant’s leave records, which demonstrate that the Agency frequently
granted Complainant LWOP status. A review of these records, including the days in question,
does not reveal any indication Complainant was considered AWOL.

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). Complainant timely requested a hearing,
but subsequently withdrew his request.
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Consequently, 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 as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the evidence demonstrates that he established a prima facie
case of discrimination, and that the Agency did not articulate legitimate, nondiscriminatory reasons
because S6’s explanation is “evidence of nothing.” Additionally, Complainant argues that the
Agency failed to accommodate him by providing him advance sick leave. Accordingly,
Complainant requests that the Commission reverse the FAD.

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”).

Hostile Work Environment – All Claims

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
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).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

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In this case, Complainant has not demonstrated that the alleged actions rose to the level of an
objectively hostile work environment. In fact, Complainant has not shown that he was indeed
placed on AWOL. The Agency’s records show that, at most, Complainant was placed on LWOP.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory animus played
a role in any of the Agency’s actions. More specifically, as to claims (1), (2), and (4), the record
reflects that advance leave is at the discretion of the supervisor, and Complainant does not
demonstrate that the Agency applied advance leave in a discriminatory manner. A comprehensive
review of Complainant’s leave record demonstrates that Complainant was frequently placed on
LWOP status, but never on AWOL status. Additionally, ER-1 stated that there was an Agency-
wide freeze on granting advance leave at the time Complainant requested it. Further, as to claims
(3) and (5), Complainant was not transferred; rather, he was moved to a different team performing
the same duties. ER-1 explained that the coaches moved employees around to work with different
teams.

While we recognize that the record is sparse, we note that Complainant requested a hearing before
an AJ, then rescinded that request. Had Complainant continued with the hearing, he could have
taken advantage of the discovery tools permitted by 29 C.F.R. § 1614.109(d). As a result, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that Complainant has not shown that he was subjected to a discriminatory
hostile work environment. Furthermore, to the extent that Complainant is alleging disparate
treatment with respect to his claims, the Commission finds that he has not shown that the Agency's
reasons for its actions were a pretext for unlawful discrimination. Accordingly, the Commission
finds that Complainant has not established that he was subjected to discrimination, reprisal, or a
hostile work environment as to all claims alleged.

Reasonable Accommodation – Claims (1) and (2)

To the extent that Complainant is alleging that he was denied reasonable accommodation, the
Commission notes that an agency is required to reasonably accommodate the known limitations
of a qualified individual with a disability, unless it can show that doing so would cause an undue
hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of
Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an
effective reasonable accommodation, he is not entitled to the accommodation of her choice.
Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). For purposes of
this decision, we assume that Complainant is an individual with a disability.

Complainant alleges the Agency failed to reasonably accommodate him by refusing to grant him
advance leave. Instead, the Agency placed him on LWOP status. Although the Agency did not
provide Complainant with advance leave, the Agency did accommodate Complainant by providing
LWOP.
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We note that, although individuals protected under the Rehabilitation Act are entitled to reasonable
accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda
v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Furthermore, the Agency was
not obligated to provide Complainant with paid leave beyond that which is provided to similarly
situated employees. Joseph v. Dep’t of Def., EEOC Appeal No. 0120060710 (Mar. 7, 2007), citing
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, EEOC Notice
915.002 at p. 29 (Oct. 17, 2002). There is no indication that the Agency acted inappropriately in
denying Complainant’s request for advance leave and placing him on LWOP status. We find that
Complainant failed to establish that he was denied a reasonable accommodation 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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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

December 19, 2018
Date