0120160589
06-05-2018
Demarcus I.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Demarcus I.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160589
Hearing No. 570-2013-00771X
Agency No. 2004-01AL2012104200
DECISION
On November 21, 2015, 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 October 22, 2015 final order 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.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, GS-1102-15, in the Office of Acquisition and Logistics (OAL) at an Agency facility in Washington, DC.
On September 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (depression, anxiety, insomnia and high blood pressure developed about February 2012) and reprisal for prior protected EEO activity (December 2011 EEO complaint) when it denied him reasonable accommodation and subjected him to hostile work environment harassment. The Agency accepted amendments from Complainant alleging the following specific incidents:
1. in November 2011, the Agency placed Complainant on a Performance Improvement Plan,
2. from February 23, 2012 to April 10, 2012, the Agency required Complainant to use eight (8) hours of sick leave per day to adhere to his physician's medical recommendations,
3. about April 10, 2012, management failed to consider and follow Complainant's medical restrictions,
4. between April 10, 2012 and October 19, 2012, the Agency required Complainant to use leave to work a half-day schedule to comply with his physician's medical recommendations,
5. between April 10, 2012 and December 29, 2012, the Agency delayed and then denied Complainant's reasonable accommodation request,
6. about April 17, 2012, the Agency requested additional medical information and documentation beyond what was required to document Complainant's medical condition,
7. about May 18, 2012, the Agency requested a telephonic interview with Complainant and his physician,
8. on August 9, 2012, the Agency terminated Complainant's interim detail, which was an accommodation, and returned him to a hostile work environment that exacerbated his condition,
9. during September 2012, the Agency placed Complainant on a Performance Improvement Plan that held him accountable for standards that he no longer performed,
10. from October 22, 2012 to December 29, 2012, Complainant was required to use his sick and annual leave until he retired on December 29, 2012, and
11. on November 7, 2012, the Agency issued Complainant a decision sustaining a seven-day calendar suspension for failure to attend meetings.
The Agency accepted Complainant's complaint for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that he had difficulty getting up in the morning because he was exhausted and had difficulty parenting as a single parent due to stress from senior Agency management. Complainant stated that his Psychiatrist wanted him to have time to relax and exercise, and to reduce his work hours and telework from home at times. Complainant stated that he was supposed to be in a less stressful environment, but his first level supervisor (S1) increased his stress and forced him out of his job.2 Complainant stated that the Agency denied all recommendations of his Psychiatrist. Further, Complainant stated that he found a 90-day detail to accommodate him in Human Resources and Administration (HRA) and management had him removed from the detail.
Agency's Response
The Executive Director, S1, (female, no disability, prior EEO activity as responsible management official) stated, on April 10, 2012, Complainant asked for reassignment as an accommodation. She stated that she conferred with the Office of Employee Relations (OER), which informed her that reassignment is an accommodation of last resort. S1 stated that she worked to reduce Complainant's stress by returning him to work (after extended sick leave) on a half-day schedule, reducing his workload by 50-75% by transferring most of the contract actions to another office and giving Complainant minimal supervisory and contract responsibility, extending his work timelines, and meeting with Complainant weekly to assist him in staying on track with his performance and focusing on issues outlined in his Performance Improvement Plan (PIP). (S1 noted that she met with all her direct reports weekly.) S1 stated that the Agency also pursued Complainant's request for reassignment. S1 stated that HRA ran a job search for GS-1102-15 (Supervisory Contract Specialist) positions and considered Complainant's request to move him outside of S1's contracting organization, which lessened positions available. S1 added that, after approval from Complainant, they looked at lower grade positions (GS-14) in the 1102 series. S1 stated that OER contacted Complainant about expanding the search by geographical and organizational location, but did not hear from Complainant until after the job search expired. S1 stated that Complainant alleged that the Agency left him no choice but to retire, which is not true.
S1 stated that Complainant knew someone in another office, the Veterans Employment Service (VES), and he felt a detail there would better accommodate his medical conditions. S1 stated that the Detail Supervisor (S2) (female) wanted to terminate Complainant's detail. S1 stated S2 explained that Complainant was absent from the office and working from home without her knowledge, and she could not reach him to validate his time and attendance. S1 stated that S2 added that she would not tolerate such behavior from a permanent GS-15 employee and would not do so for a detailed employee. S1 stated that her organization remained Complainant's timekeeper of record, but S2's office had to vouch for Complainant's time. S1 stated that OER notified Complainant of the termination of his detail.
S1 stated that OER requested additional medical information from Complainant because the Agency could not discern what specific functions Complainant could not perform. S1 stated that Complainant's physician did not tie his limitations to any specific activities in Complainant's position description. S1 stated that OER asked to speak to Complainant and his doctor to get clarification on what aspects of a position needed to be removed to accommodate Complainant, as they had already reduced his hours, workload, and supervisory functions.
S1 stated that, on October 27, 2011, she informed Complainant in writing that his annual performance appraisal would be delayed due to significant discrepancies in contracting activities in his area. She stated the discrepancies were determined by an enterprise-wide review of service contracts by OAL. S1 stated that it initially was unclear whether some discrepancies were fraudulent or just a violation of policy and regulation, so the matter was forwarded to the Inspector General (IG), who declined to review it. S1 stated, due to the significant flaws discovered, on January 27, 2012, she placed Complainant on a PIP, specifically related to two critical elements in his performance agreement. S1 stated that she extended Complainant's PIP to give him sufficient time to improve his performance considering he went on extended sick leave from February 14 through April 9. S1 stated that she was unaware that Complainant had a disability before she placed him on a PIP.
S1 stated that she informed Complainant that he failed to demonstrate acceptable performance in leadership and management, but that those duties had been removed before he had sufficient time to show improvement. S1 stated that the primary focus for Complainant was contract management and reporting. S1 stated that she had weekly, 30 minute, one-on-one meetings with Complainant about his performance and that they both received regular workload reports, which showed significant delays and deficiencies. S1 stated, after the termination of Complainant's detail, he was reassigned back to her and the same PIP went back into effect. S1 stated that she holds similarly-situated employees to the same standards.
S1 stated that Complainant requested leave from October 22, 2012 to December 29, 2012 (his retirement) and she granted his request. S1 also stated that, on February 23, 2012, Complainant informed her that he was providing medical documentation and requesting emergency sick leave from February 23 through March 12, and then through April 9. S1 stated that she granted the leave requests. S1 reiterated that Complainant did not ask for reassignment outside of her department until April 10. S1 stated that Complainant did not request to telework between February 23 and April 10, 2012. S1 noted that an employee can request telework as an accommodation, but they must have at least a Satisfactory performance rating, which Complainant did not have.
S1 stated that she proposed Complainant's suspension in September 2012 for continuously failing to attend mandatory meetings with her. She stated that the mandatory meetings were to accommodate his schedule and assist with his performance improvement. S1 stated that she discussed his absence from meetings with him. S1 stated her supervisor, the Principal Executive Director (S3) was the deciding official on the suspension, and it was progressive discipline. S1 stated that Complainant asked OER about retirement (prior to the suspension issuance) and OER referred him to HRA.
S3 (male, disabled veteran, prior EEO activity) stated that he was not aware of Complainant's prior EEO activity. S2 stated that he sustained the proposed suspension based on the record provided to him and considering the Douglas Factors established for disciplinary actions.
The OER Representative (S4) (female, no disability, no prior EEO activity) stated that she was the Local Reasonable Accommodation Coordinator (LRAC). S4 stated that her knowledge of Complainant's medical restrictions and conditions is based on information his Psychiatrist provided. S4 stated that, on April 12, Complainant stated that he resubmitted his accommodation request from April 5. S4 instructed him to provide his request to his supervisor, S1, which he did. S4 stated that decisions on reasonable accommodation are made by the immediate supervisor and the LRAC, seeking to figure out what accommodation can be made to allow the employee to complete his job. S4 stated that she and S1 were unable to determine what type of duties Complainant could not perform from the medical documentation provided. S4 stated that the documentation essentially stated that the supervisor, S1, caused all of Complainant's issues. S4 stated that she thought she could clarify specific information needed to determine a required accommodation through a telephonic interview with Complainant and his doctor. S4 stated that she provided a position description and performance plan to Complainant's doctor.
S4 stated, based on doctor recommendations, Agency management reduced Complainant's workload by about 75 percent, placed him on a part-time schedule, and removed his supervisory responsibilities. She noted that the doctor stated that Complainant was still affected by supervisory stress so the Agency began considering reassignment. S4 stated that management tried to find a suitable position for Complainant, during which time he presented a detail with an acquaintance in another department. S4 stated that the person who gave him the detail is the one who terminated it, stating "she was not going to chase behind a GS-15 to get him to fill out his timesheet." S4 stated that she requested Complainant's resume and whether he was willing to accept a lower-graded position. The Agency stated that it offered Complainant several positions, but he did not respond to the offers in a timely manner or the positions were cancelled.
Investigative Record
The record contains the pertinent documents that follow.
* Note, dated February 14, 2012, from Psychiatry and Neurology doctor (P1) stating that Complainant was unable to return to work until March 12, 2012 due to illness.
* Note, dated March 12, 2012, from P1, stating that Complainant was unable to return to work until April 9, 2012 due to illness.
* Note, dated April 5, 2012, from P1 stating that Complainant may return to work half-time effective April 10, 2012.
* Letter, dated March 19, 2012, from P1, stating that he was treating Complainant for anxiety and depression. P1 stated that stress from Complainant's work environment exacerbated his condition and he needed an accommodation so that his environment would not continue to do so. P1 recommended relocation to an office outside of OAL, avoidance of additional assignments not directly related to his immediate functions, teleworking at least twice per week, two 30-minute periods of physical activity the days he was in office, and implementation of the PIP in a positive, less stressful manner.
* Letter, dated April 30, 2012, from P1 stating that Complainant had been suffering from stress-related symptoms due to work overload. P1 stated that Complainant experienced insomnia, anxiety attacks with chest pain and rapid heart rate, scattered thinking, lack of concentration, difficulty making decisions, depression with fatigue, sadness, and lack of energy. P1 recommended a half-time schedule over three months.
* Letter, dated May 11, 2012, from P1 stating that Complainant continues to deal with excessive hours of work, unrealistic deadlines and requests for work, and no reduction in duties.
* Letter, dated May 25, 2012, from P1 stating "There are no specific tasks or duties in [Complainant's position description] which in and of themselves he is incapable of performing . . . [Complainant's] limitations relate to the volume and pace of demands put on him, not the individual tasks themselves."
* Written Confirmation of Request for Accommodation, dated April 5, 2012, asking to "be reassigned to another office outside of OAL where talent and skills can be utilized where there is less anxiety and hostility."
* Letter, dated June 14, 2012, from S4 stating that there are no further accommodations that will allow Complainant to perform the essential functions of his GS-15 position and he is now eligible for the accommodation of last resort - reassignment.
* Employee Limitations on Reassignment Options form, signed by Complainant and dated June 18, 2012, stating that he will consider a different type of position and a lower grade of GS-14, Step 10 if no positions are available at GS-15.
* Email, dated June 26, 2012, from Complainant to S4 providing the other options he would consider for positions and requesting a detail to HRA/VES for up to 120 days with the chance of a permanent position. He noted that VES has an aggressive teleworking program, and the detail would be nonsupervisory and allow him time for exercise and de-stressing.
* Memorandum, dated July 13, 2012, from S1 to Complainant, approving his request for a detail effective July 16. The memorandum stated that the detail was approved for no more than the time it takes to conduct a reassignment search (90 days).3 S1 stated that if a reassignment position is not found within a 90-day period, the detail would be terminated and Complainant may be removed from employment.
* Email, dated August 6, 2012, from S4 to Complainant, informing him of two vacant positions (GS-1102-13/14 and GS-1102-12/13) and asking his interest. Complainant requested time to consider the position descriptions. Subsequently, S4 informed Complainant that the positions had been cancelled.
* Note, dated October 18, 2012, from P1, stating that Complainant is unable to continue to work part-time due to symptom exacerbation. Further, he stated "[Complainant] needs to be off work entirely until further notice."
* Email, dated October 22, 2012, from the Detail Supervisor, S2, stating "we terminated the detail because [Complainant] was either on leave or working out of home without my knowledge" and they could not reach him when they attempted to do so.
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation, and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final agency decision. Complainant timely requested a hearing. On September 24, 2015, without a hearing, the assigned AJ issued a decision finding no discrimination. Also, the AJ dismissed incidents (1), (2), (3), (6), and (7), pursuant to 29 C.F.R. � 1614.107(a)(2), as discrete acts that were untimely raised with an EEO Counselor.
Subsequently, in a final decision dated October 22, 2015, the Agency adopted the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed.
On appeal, Complainant stated that the Agency failed to provide reasonable accommodation, and created a hostile work environment to force him out of his job. Complainant stated that was the crux of his claims, and that the other matters (such as those dismissed by the AJ as untimely) were background information solely. Also, he stated that the reassignment positions the Agency cited were already occupied or withdrawn by the Agency before they were brought to his attention.
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").
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). As a threshold matter, Complainant must establish that he is an "individual with a disability." Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that complainant has not shown that the agency failed to reasonably accommodate him.
Complainant provided medical documentation from his Psychiatrist, P1, stating that he had depression and anxiety and required accommodation to reduce his stress. Initially, P1 stated that Complainant was unable to return to work between February 14, 2012 and March 12, 2012, and then April 9, 2012. P1 stated, effective April 10, 2012, Complainant could return to work half-time only. Subsequently, P1 recommended relocation of Complainant to an office outside of OAL, avoidance of additional assignments not directly related to his immediate functions, teleworking at least twice per week, two 30-minute periods of physical activity the days he was in office, and implementation of the active Performance Improvement Plan in a positive, less stressful manner. Also, P1 stated that Complainant's restrictions relate to the volume and pace of demands put on him rather than the individual tasks themselves. Complainant requested reassignment out of OAL.
The Agency approved Complainant's request for extended sick leave, returned him to work on a half-day schedule, reduced his workload by 50-75%, gave Complainant minimal supervisory and contract responsibility, extended his work timelines, and met with Complainant weekly regarding performance concerns. After P1 reported that Complainant's stress persisted, the Agency found that Complainant could not perform the essential functions of his position and it pursued the accommodation of reassignment. While looking for positions within Complainant's designated occupational series and no lower than GS-14, the Agency approved Complainant's request for a detail to another office as an interim accommodation. About a month after the detail began, the Detail Supervisor terminated it, stating that Complainant was absent from the office and working from home without her knowledge, and she could not reach him to validate his time and attendance. Further, the Agency stated that Complainant did not approve a search for positions outside the Washington, DC area until the reassignment search expired.
It is the Commission's position that complainant has the evidentiary burden in reassignment cases. Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002). To establish entitlement to a reassignment, an employee must show that a vacant, funded position existed or was likely to open up during the relevant time frame. Id. The record reflects that Complainant requested a detail, with the possibility of permanent placement, to HRA at the Agency and S1 approved the detail. Less than a month after the detail began, the Detail Supervisor terminated it citing concerns about Complainant's time and attendance. Further, the record shows that an attempt was made to locate a vacant, funded position into which Complainant could transfer at the location, occupational series, and grade level Complainant specifically identified. The Agency located some potential positions but was unable to reassign Complainant either because the vacancy was cancelled or Complainant did not respond in a timely manner. We note that the Rehabilitation Act does not require an agency to create a position as an accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, question 24 (rev. Oct. 17, 2002). We find that Complainant has not shown that the agency failed to reasonably accommodate his alleged disabilities when it did not permanently reassign him.
Hostile Work Environment
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).
Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on sex, disability or reprisal. The record shows that Complainant held a GS-15 Supervisory position at the Agency and management made changes to his position to comport with his Psychiatrist's recommendations. Further, the Agency approved Complainant's requests for leave during the relevant period, sought information to determine what additional measures it could take to comply with his restrictions, and approved a temporary detail to another office. Notwithstanding, management expressed concerns about Complainant's performance and placed him on a PIP. We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris, 510 U.S. 17.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.
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
June 5, 2018
__________________
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.
2 Complainant retired from the Agency effective December 31, 2012. He was on medical leave, pursuant to medical instructions, between October 18, 2012 and December 29, 2012.
3 The Agency terminated Complainant's detail effective August 12, 2012.
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