Gerard M.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 21, 20180120150491 (E.E.O.C. Feb. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerard M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120150491 Agency No. 200J-0695-2013104083 DECISION 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 16, 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 in part and VACATES in part the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Science Program Specialist at the Agency’s facility in Milwaukee, Wisconsin. On November 21, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of his race (Black), sex (male), disability, and in reprisal for prior protected EEO activity when: 1. on July 24, 2013, management did not promote him, noncompetitively, to the position of Program Specialist, GS-12; 2. in October 2013, management issued him a “fully successful” performance rating; 3. on October 11 and 25, 2013, management denied him a reassignment; 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. 0120150491 2 4. on October 18, 2013, management denied him the opportunity to compete for promotion when the position of Coordinator, GS-12, was announced; 5. in November 2013, management did not grant him a performance award; 6. from November 2012 through June 19, 2013, management failed to provide him with a reasonable accommodation when they delayed acting on his request for a new van;2 7. on November 22, 2013, management failed to provide him with a reasonable accommodation when his request for a change in work station was denied; 8. from November 2012 through November 2013, management subjected him to a hostile work environment. 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). In accordance with Complainant’s request, 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 reiterates his contention that the Agency subjected him to unlawful discrimination. 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”). Initially, with respect to claim (1), we find that Complainant is alleging breach of a settlement agreement. We note that the Agency decision even defines the claim as such. The Agency states in its decision that he was supposed to be promoted “as a result of a previous EEO settlement.” The Agency decision also states, however, that it “appears this claim is an attempt by the [C]omplainant to circumvent filing an action for breach of a settlement agreement.” We disagree. Complainant raised this claim of breach as part of the instant complaint. Therefore, we find that the Agency was on notice and should have addressed the breach claim as a breach of settlement claim. Because the Agency failed to include a copy of the settlement agreement at issue, or any 2 The Agency decision identifies the date in this claim as July 2013, however a review of the report of investigation make it clear that the dates at issue in this claim are November 2012, through June 19, 2013. 0120150491 3 other documentation relevant to this breach claim in the report of investigation, we shall remand claim (1) for a supplemental investigation into the allegation of breach. Next, with respect to claims (2), (4), and (5), to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we find that assuming, arguendo, Complainant established a prima facie case of race, sex, disability, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to claim (2), the record shows that in October 2013, Complainant received the rating of “exceptional” for direct patient care, as well as for professional relationships and responsibility, but an overall rating of “fully successful.” The record further shows that this rating was because Complainant was investigated for two incidents in which he was found to have used profanity, spoken in a loud voice, and was disruptive in the workplace. Accordingly, management lowered his rating for organizational support to “fully successful.” As to claim (4), the record shows that Complainant was not qualified for the announced Coordinator position as the position required a Master’s degree in social work and the appropriate license, which he did not possess. With respect to claim (5), the record shows that Complainant was eligible for a performance award in October 2013, as the result of his receiving two “exceptional” ratings in his performance evaluation. Management officials state that his failure to receive the award was an oversight caused by Complainant being reassigned to a new supervisor during the relevant period. We find that Complainant has not shown that the Agency’s articulated reasons for its actions were a pretext for unlawful race, sex, disability, or reprisal discrimination. With respect to claim (3), the record shows that Complainant entered into mediation with the Agency in October 2013, after alleging that he was being harassed by his supervisor. As a result of this mediation, management attempted to find Complainant another position into which he could be reassigned. The record shows that when no other vacant position was located for which Complainant was qualified, management assigned him to a new supervisor and prevented his prior supervisor from having any contact with him. We find that Complainant has not shown that the Agency’s actions were motivated by discriminatory or retaliatory animus. With respect to claims (6) and (7), 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. § 1630.9. In 0120150491 4 order to establish he was unlawfully denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (October 17, 2002). Here, as to claim (6), assuming, without finding, that Complainant is a qualified individual with a disability, the record shows that Complainant informed management in November 2012, that the vehicle assigned to him to transport veterans was unsafe because there was “a hole in the floor” and the vehicle “sometimes lunges forward when the gas is first applied.” The record contains an email dated December 12, 2012, stating that Complainant agreed to accept another older van “with more leg room for ergonomic reasons” but that he would be assigned a newer replacement vehicle in the new ordering cycle. The record shows that Complainant was assigned a new van in June, 2013. Accordingly, we find that Complainant has not shown that the Agency failed to provide him with a reasonable accommodation. We note that, in so finding, the record does not contain any evidence to show that Complainant informed management that the temporary accommodation provided in December 2012 was ineffective. Next, as to claim (7), the record shows that after reporting the alleged harassment by his supervisor to management, as discussed in claim (3), Complainant went out on extended sick leave. While on leave, he requested that management reassign him to another office so that he would not come into contact with his now former supervisor. Although Complainant states that this was a request for a reasonable accommodation, it is clear from the record that the Agency viewed the request as part of his allegation of harassment and that Complainant did not state in his request that it was related to his disability. Further, the record shows that when Complainant returned to duty in November 2013, his supervisor had already been removed from his chain of command and Complainant no longer had any contact with her. Even assuming Complainant’s request was viewed as a request for a reasonable accommodation, generally, the Commission has held that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question 33 (Mar. 1, 1999) (employer not required to provide employee with new supervisor as reasonable accommodation; Hilton v. Dep't of Veterans Affairs, Appeal No. 0120080691 (Mar. 25, 2010). In addition, we note that while protected individuals are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Here, the record shows that the Agency assigned Complainant a new supervisor and prevented his former supervisor from coming into contact with him. Accordingly, we do not find that the Agency violated the Rehabilitation Act. Finally, as to claim (8), although Complainant contends that the incidents alleged constitute a hostile work environment based upon his protected classes, the Commission finds that since he failed to refute the legitimate, nondiscriminatory reasons proffered by the Agency for its actions, he also failed to establish that such actions were taken on the basis of his membership in the protected classes. Accordingly, Complainant failed to establish that he was subjected to a 0120150491 5 discriminatory hostile work environment. See Bennett v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000). CONCLUSION We VACATE the Agency decision in claim (1) and we REMAND claim (1) to the Agency to be treated as a breach of settlement agreement claim in accordance with our Order herein. We AFFIRM the Agency’s final decision with respect to the remaining claims. ORDER Within 30 days of the date this decision is issued the Agency shall process claim 1 of this complaint as a breach of settlement claim pursuant to 29 C.F.R. § 1614.504. The Agency shall acknowledge to Complainant that it has received the remanded claim within 30 days of the date this decision is issued. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the Agency’s decision on the breach claim must be sent to the Compliance Officer as referenced herein. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 0120150491 6 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the 0120150491 7 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 February 21, 2018 Date Copy with citationCopy as parenthetical citation