Emery F.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 28, 2016

0120141619 (E.E.O.C. Apr. 28, 2016)

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

Emery F.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120141619

Hearing No. 532-2012-00026X

Agency No. 200H-0541-2011101730

DECISION

Complainant filed an appeal from the Agency’s final order dated February 25, 2014, finding
no discrimination with regard to his complaint alleging employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In his complaint, dated May 17, 2011, Complainant alleged discrimination in disability
(perceived) when he was terminated from his social worker position on January 28, 2011,
during his probationary period. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). On January 30, 2014, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the Agency in its final order.

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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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. Complainant began his employment with the Agency on
January 18, 2011, as a Clinical Social Worker, Mental Health Intensive Case Management
(MHICM), GS-185-11, subject to a one year probationary period, at the Agency’s Outpatient
Clinic in Akron, Ohio. The record indicates that the Chief of Human Resources Management
Service issued Complainant the termination letter at issue, dated January 27, 2011, notifying
him that he was discharged during his probationary period of his appointment effective January
28, 2011, as a result of unsuitable trait of general character.

Complainant’s supervisor indicated that on January 21, 2011, an identified Nurse Practitioner
(NP) reported to her that when the NP opened the MHICM office, the NP was hit with a
strong odor of alcohol and a Registered Nurse (RN) and Complainant were the only two people
in the office. The NP then closed the office door and went to get an identified psychiatrist.
The psychiatrist came to the office with the NP and confirmed that he too smelled alcohol in
the office. After receiving the foregoing NP’s report, the supervisor stated that she talked to
both the RN and Complainant about the seriousness of the incident. In response, stated the
supervisor, the RN was shocked with the report and RN indicated that the RN would never
drink on the job. Complainant however responded, indicated the supervisor, that “I don’t ever
remember signing anything on my orientation packet saying that I can’t drink.” Complainant
acknowledged making the foregoing comment.

The supervisor also indicated that a few days later on January 24, 2011, an identified employee
(E1) reported to her that Complainant approached E1 and pointed his finger at E1 saying that
he knew E1 and E1 worked at “CSS” in a passive-aggressive manner. E1 felt a little
intimidated and threatened by Complainant. The supervisor stated that another employee (E2)
reported to her that on January 24, 2011, Complainant referenced the seriously mentally ill
population as “turds.” Complainant claimed that he did not refer to clients as “turds”; rather

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he meant he was “used to getting turd cases,” a term used when he worked in juvenile court in
reference to files, not clients.

The supervisor indicated that she informed Complainant’s manager of these reports about
Complainant. The manager indicated that he reviewed the reports with other managerial
officers, including Human Resources. After a review of the incidents and the reports
submitted by a number of employees concerning Complainant’s conduct during his first week
of employment, the manager stated that management decided to terminate Complainant during
his probationary period due to his unsuitable traits of general character pursuant to the
Agency’s policy. Complainant claimed that he was terminated due to his perceived disability -
recovering alcoholic in that he was a recovering alcoholic and drug addict and he had been
sober since November 8, 1998. The manager indicated that Complainant’s alcoholism was not
a factor for his termination.

The AJ stated that management witnesses all denied the termination decision was based on
Complainant’s perceived alcoholism as he alleged. The AJ found management witnesses
credible in their testimony as the reason for the termination. The AJ also found and we agree
that Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. It is noted that we do not address in this decision
whether Complainant is a qualified individual with a disability. Furthermore, we note that
Complainant has not claimed that he was denied a reasonable accommodation and he has not
claimed that he was required to perform his duties beyond his medical restrictions. Upon
review, we agree with the AJ’s finding that Complainant failed to show that the Agency’s
action was motivated by discriminatory animus.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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.

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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

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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

April 28, 2016
Date