Chad T.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2016

0120143088 (E.E.O.C. Dec. 21, 2016)

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

Chad T.,1
Complainant,

v.

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

Appeal No. 0120143088

Agency No. 200H-0310-2013101139

DECISION

On September 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 5, 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., 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-13
Supervisory Veterans Service Officer (VSO) and Coach, for the Intake Processing Center
(IPC) Team. Complainant’s first level supervisor (S1) was the Assistant Veterans Service
Center Manager. Complainant’s second level supervisor (S2) was the Veterans Service Center
Manager. Person C was the Director of the VA Regional Office and Insurance Center (VARO
& IC) in Philadelphia, Pennsylvania.

On November 27, 2012, Complainant sent an electronic mail message (email) to all employees
on the IPC Team, which expressed his frustration over his team having been assigned

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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additional duties. In the email, Complainant referred to “the constant bitching of some
Coaches” and referred to other Coaches as “a bunch of winey B*tches.” (asterisk in original
email). Complainant also stated in the email that “It would appear that no matter how strong
an argument I make until I learn to wear a skirt and give….(well you get the picture).”

Upon the advice of another Coach who had received a copy of the email, Complainant advised
S1 that he had “snapped” and sent the email out of frustration. During the conversation,
Complainant told S1 that he was stressed and had just seen a doctor and been placed on
medication for anxiety. Complainant apologized for sending out the email and asked that S1
allow him to remain in his Coach position while he became “acclimated” to the medication he
had been recently prescribed. S1 stated that because Complainant stated he was experiencing
stress and had been placed on medication for anxiety, he spoke with S2 and the EEO
Counselor. S1 stated that he told Complainant that the EEO Counselor would contact him
about any possible accommodations that might be available.

In addition, S1 requested Complainant provide him a copy of the email he sent on November
27, 2012. In response, Complainant provided S1 with an altered copy of the email which had
actually gone out to the IPC Team.

On November 30, 2012, S2 removed Complainant’s supervisory authority and Coach duties
and reassigned him as a Rater. Complainant’s title, grade, and pay remained the same, but his
duties and work space were changed.

On December 19, 2012, Complainant was issued a Notice of Proposed Adverse Action
proposing that he be demoted and also suspended for a period of 14 days as a consequence of
sending the email and later sending S1 an altered copy of the email.

The December 19, 2012 Notice was rescinded on January 16, 2013. A revised Notice of
Proposed Adverse Action was issued citing two charges, one in connection with the
dissemination of the inappropriate email and the other for providing S1 with an altered copy of
the original email. The revised Notice proposed Complainant be both demoted and suspended
for 14 days.

On January 22, 2013, Complainant received an email from the EEO Manager, containing
instructions and the paperwork needed to formally request a reasonable accommodation.
Complainant did not complete paperwork to request and accommodation; nor did he provide
the EEO Manager with requested medical documentation.

On March 5, 2013, Complainant was issued a 14-day suspension and permanently reassigned
to the non-supervisory position of a GS-13 Decision Review Officer (DRO) with the Appeals
Team.

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On April 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (White), national origin (Armenian American), sex (male),
disability, and age (over 40) when:

A. Complainant was denied a reasonable accommodation on November 27, 2012,
through the present.
B. On November 27, 2012, S2 reassigned him from his GS-13 supervisory position to
a GS-12 non-supervisory position and placed him at a desk where he could be
watched.
C. Complainant was suspended March 10, through March 24, 2013.
D. On March 25, 2013, Complainant was reassigned to a position as a GS-13 Decision
Review Officer (DRO) with the Appeals Team.
E. Complainant was subjected to a hostile work environment when:
1. From November 27, 2012, to the present, the facility has denied
Complainant a reasonable accommodation,
2. On November 27, 2012, S2 reassigned Complainant from his GS-13
supervisory position to a GS-12 non-supervisory position and placed him at a
desk where he could be watched.
3. Effective March 10 through 24, 2013, the Director suspended Complainant
for 14 calendar days.
4. On March 25, 2013, the Director reassigned Complainant to a position as a
GS-13 DRO assigned to the Appeals Team.2

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). 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 as alleged.

On appeal, Complainant contends he was denied due process by the Director when he was
suspended and taken out of his supervisory position. Complainant cites the Administrative
Investigation Board (AIB) report noting that he was reassigned without written notice
explaining his assignment, the reason for the assignment, the specific duties, and the temporary
duration of the assignment. In addition, Complainant also contends that the Agency’s
articulated reasons for its actions regarding sex discrimination are a pretext for actual
discriminatory treatment.

2 Complainant identified his race as Armenian-American. The Agency noted that Armenian-
American is more accurately identified as the basis of national origin. Both the bases of race
and national origin were included in the accepted claims.
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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”).

Assuming Complainant was a qualified individual with a disability, we address his claim that
he was denied a reasonable accommodation. Complainant contends that his request on
November 27, 2012, to remain in his Coach position was a request for a reasonable
accommodation. The only medical evidence in the record is a December 27, 2012 letter, from
Complainant’s Doctor stating that Complainant was recently diagnosed with general anxiety
disorder and depression and is currently on medication and receiving counseling to help cope
with his condition. The report states that Complainant brought to the Doctor’s attention that
“he was recently involved in an incident at work in which, in his own words, he snapped. The
incident apparently occurred in the afternoon following his examination with me. Individuals
who suffer these types of disabilities and who do not seek medical help are often prone to such
symptoms as irritability or angry outbursts.” The letter further states that “Given the state of
mind [Complainant] was in that morning, it is at least as likely as not that his actions on the
afternoon of November 27, 2012, were the result of his disabilities.”

We note the Doctor’s letter does not mention any need for reasonable accommodation, nor
does it specify any type of accommodation that may be needed for Complainant to perform the
essential functions of his position. In addition, we note that in response to the paperwork for
requesting reasonable accommodation, provided by the EEO Counselor, Complainant did not
complete the paperwork requesting any other accommodations. Upon review, we find
Complainant failed to establish that that he was denied a reasonable accommodation.

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With regard to Complainant’s reassignment to a non-supervisory position,
Complainant admits that the email which prompted the actions taken by management was
offensive and inappropriate to send to his employees. The Agency stated that the email was
unprofessional and disparaging to leadership and that it violated standards for ethical conduct.
The Agency maintained that Complainant’s poor judgment in sending the email undermined
their trust in his judgment. The Director stated that he made the decision to temporarily
reassign Complainant from his supervisory position while a fact-finding investigation regarding
the email was conducted. The Agency noted the temporary reassignment was made until it
could be determined if the allegations against Complainant were true and a decision could be
made on the appropriate disciplinary action to be taken.
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Complainant also claimed that when he was initially reassigned, he was placed in a location
where he could be watched. S1 stated he was not aware that Complainant was placed at a desk
where he could be watched. Rather, S1 explained that Complainant was moved with the
purpose of moving him away from his team members, who had received the offensive email.
The Director stated that it was not appropriate to leave Complainant in a Coach’s cubicle
because employees would have continued to engage him as a Coach. Complainant remained in
the reassignment until a decision was made regarding discipline.

After the fact-finding, S2 issued Complainant a Proposed Adverse Action Notice dated January
16, 2013, which advised Complainant that a demotion from his GS-13 position to a GS-12
position as well as a suspension was being proposed. Complainant was charged with having
engaged in disrespectful and disruptive conduct and using insulting and abusive language about
other personnel in connection with the November 27, 2012 email. In addition, Complainant
was charged with falsifying, misstating or concealing a material fact in connection with the
inquiry conducted by S1 as well as misuse of a government computer.

The Director sustained the charge of engaging in disrespectful and disruptive conduct and the
use of insulting and abusive language about other personnel in connection with the
dissemination of the email. The Director did not sustain the charge of failing to follow a
managerial directive in connection with altering the copy of the email Complainant provided to
S1. The Director explained that he had given Complainant the benefit of the doubt based on
Complainant’s statement that he provided S1 with an earlier draft of the email. The Director
stated he discounted the claim that Complainant had intentionally altered the email before
providing it to S1. As a result, the Director mitigated the proposed discipline and concluded
that Complainant would be reassigned to the position of DRO, GS-13, with the Appeals Team,
but that he would not be demoted to a GS-12. The Director did order Complainant be
suspended for 14 days. The Director stated that because Complainant violated standards for
appropriate use of government computers and undermined the trust of management and
employees, he could no longer remain in a leadership position.

Further, S1 maintained that Complainant had a responsibility as a supervisor to lead by
example. S1 stated that by sending out an email that was sexist and offensive, Complainant
breached that responsibility. S1 stated the suspension was appropriate due to the impact it had
across the workforce, i.e. to his team and beyond his team. S1 characterized the email as
demoralizing and stated it had a significant impact on other leadership who he disparaged in
the email. S1 stated that Complainant violated the Agency’s attempts to have an environment
free of sexist comments. S1 noted that he made the decision to reassign Complainant to the
DRO position with the Appeals Team. He noted the DRO is a non-supervisory position where
Complainant would not be leading a team. S1 stated that he had lost confidence in
Complainant’s leadership abilities and as a result decided to reassign Complainant.

In an attempt to prove pretext, Complainant maintained that other Coaches, who were female,
were not disciplined for inappropriate behavior. Management maintained that discipline of
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others was appropriate for that particular individual’s infraction. The Director stated that he
was not aware of other employees in the same circumstances as Complainant’s situation.
Specifically, he noted that no others were accused of doing what Complainant did to another
team. We find that Complainant did not show that other similarly situated employees were
treated better in regards to the discipline Complainant received. Additionally, we find that
Complainant’s contention that there was a due process violation in the AIB investigation does
not constitute evidence of discrimination. Upon review, we find Complainant failed to
establish by a preponderance of evidence that the Agency’s actions were a pretext for
discrimination on any of his protected bases. Moreover, we find Complainant failed to
establish that he was subjected to a hostile work environment.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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
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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 21, 2016
Date