Herb S.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 29, 2018

0120161998 (E.E.O.C. Jun. 29, 2018)

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

Herb S.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120161998

Agency No. 200I-0557-2015104213

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated May 20, 2016, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Housekeeping Aid, WG-02, at the Carl Vinson Medical Center in Dublin, Georgia. On August
3, 2015, Complainant filed his complaint alleging discrimination based on disability, religion
(Jehovah Witness), and in reprisal for prior EEO activity when:

(1) On January 12, 2015, he requested a reasonable accommodation but received no
response;

(2) On May 20, 2015, he was denied a weekend rotating schedule to attend religious
services;

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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(3) On June 30, 2015, he requested advanced leave from June 30, 2015, to September 30,
2015, for personal reasons but received no response; and

(4) On July 7, 2015, he was terminated during his probationary period.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued
its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant indicated that he worked as a Housekeeping Aid
since July 3, 2014, subject to a one year probationary period. Complainant stated that he had
post-traumatic stress disorder disability but he could perform his position duties without any
accommodations for his disability. Management indicated that they were aware of
Complainant’s disability and in fact, all Housekeeping Aids were qualified as disabled veterans.

Regarding claim (1), management acknowledged that when Complainant first came on board, he
did request a reasonable accommodation without telling them the nature of his needed
accommodation. Complainant was then informed to contact the Office of Human Resources
(HR) and Labor Relations Specialist/the Reasonable Accommodation Coordinator, but he failed
to do so. At the relevant time, stated the HR Specialist, Complainant did not make a request for
reasonable accommodation. Complainant does not contest this; nor does he indicate what
specific accommodation he requested at the relevant time. Therefore, we find that Complainant
was not denied a reasonable accommodation.

Regarding claim (2), Complainant alleged that management denied Complainant’s request for a
weekend rotating schedule to attend religious services. Management stated that Complainant
requested a weekend rotating schedule to attend family issues and he was informed to request
FMLA (Family and Medical Leave Act). Management stated that Complainant requested time
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off for religious reasons on several occasions and they were granted, including his request to
attend a religious convention. Complainant does not dispute this. Management indicated that
there were other employees who had more seniority regarding working the weekend rotating
schedule and Complainant was informed of such. Complainant has provided no evidence that he
ever indicated that his request for leave in this claim was for religious reasons. Therefore, we
find that Complainant was not denied a religious accommodation for this claim.

Regarding claim (3), management indicated that at the relevant time, Complainant was not
coming to work and was requesting a lot of leave. Complainant’s supervisor (S1) indicated that
on June 29, 2015, Complainant called him and told him that he had a doctor’s appointment and
he would not be at work on that day but he would bring a doctor’s note on his return to duty. At
that time, stated S1, Complainant did not have any sick or annual leave left for him to use. On
June 30, 2015, indicated S1, Complainant called S1 and asked S1 if S1 received his text for
advanced leave. S1 stated he had not received the text and he informed Complainant to contact
HR about his advanced leave request. The next day on July 1, 2015, Complainant did not call or
report to duty. The record indicates that on June 30, 2015, Complainant submitted his request
for advanced annual leave from June 30 – September 30, 2015, for “time needed for personal
business/needs.” There is no evidence that management approved/disapproved this request.

Regarding claim (4), management acknowledged that Complainant was terminated during his
probationary period due to his excessive leave usage and failure to report to duty. The record
indicates that on March 3, 2015, S1 issued Complainant a warning of excessive leave usage.
Thereafter, on March 16, 2015, S1 issued Complainant a letter of sick leave certification wherein
he was informed that S1 met with him on that day to discuss his excessive use of leave. As of
that day on March 16, 2015, the Agency explained that Complainant had used an excessive
amount of sick leave in a pattern that suggested sick leave abuse. The Agency stated that
Complainant had used 40 hours of annual leave, 24 hours of family care leave, 56 hours of sick
leave, and 72 hours of leave without pay. The sick leave certification letter required Complainant
to support any use of sick leave with medical evidence upon his return to work.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that he was denied a reasonable
accommodation. Complainant does not allege that he was required to perform his duties beyond
his medical restrictions; nor does he allege that he was denied leave to accommodate his
disability. After a review of the record, we find that Complainant failed to show that there were
any similarly situated employees not in his protected groups who were treated differently under
similar circumstances. Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

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

0120161998

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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.

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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 29, 2018
Date