Jefferey G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Jul 26, 2019

0120181206 (E.E.O.C. Jul. 26, 2019)

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

Jefferey G.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs (VA),
Agency.

Appeal No. 0120181206

Hearing No. 520-2017-00055X

Agency No. 200H-0528-2016101833

DECISION

On March 2, 2018, 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
January 24, 2018 final decision concerning his equal employment opportunity (EEO) 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply Technician,
Primary Inventory Point Manager, GS-7, in the Logistics Department at the Agency’s Western
New York VA Medical Center (VAMC) located in Buffalo, New York. Complainant’s first-
level supervisor (S1) was a Supervisory Inventory Management Specialist. His second-level
supervisor (S2) was the Chief Logistics Officer.

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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On February 26, 2016, Complainant filed an EEO complaint alleging that the Agency subjected
him to hostile work environment harassment and disparate treatment based on disability
(traumatic brain injury, depression, and anxiety), age (61), and reprisal for prior protected EEO
activity (Family and Medical Leave Act (FMLA) submission) when:

1. on December 16, 2015, S1 issued Complainant a Formal Request for
Performance Improvement (FRPI) letter,
2. on December 22, 2015, S2 threatened to suspend Complainant if he did
not sign an apology letter to a vendor that S1 drafted on Complainant’s
behalf and S2 denied Complainant union representation, and
3. as of February 26, 2016, the Agency failed to render a decision on
Complainant’s November 2015 request for accommodation.

The Agency investigated Complainant’s complaint.

During the EEO investigation, Complainant stated that he suffered a head injury years ago and
has occasional forgetfulness, fuzziness in thought, dizziness, and trouble with balance. As to
incident (1), Complainant stated that management informed him that he was not performing up
to level and threatened to place him on a performance improvement plan (PIP). He stated that
management did not follow up on the PIP because it was not justified. Complainant stated that
the Agency was aware of his disability because he applied for leave under FMLA. Complainant
stated that he can perform all of his position duties, but he applied for FMLA to have time off as
needed for occasional medical issues. (Complainant stated that he provides all supplies and
equipment for the facility’s dental service.) Complainant stated that management resented the
fact, in August 2015, he was able to join the dental supply area based on his seniority and, in
September 2015, he applied for FMLA. He stated that management was concerned that he
would be absent too often.

Regarding (2), Complainant stated that he left a message of “you suck” on a vendor’s (V1)
voicemail in error and he was not referring to the vendor. Complainant stated that S2 lied about
the incident to make it worse. Complainant stated that his action was not deliberate, and
management attempted to make him sign an apology letter to force him to retire.

For incident (3), Complainant stated, in November 2015, he requested a transfer to a different
department because his supervisor was consistently harassing him. Complainant stated that a
transfer would be better for his mental health. Complainant stated that he submitted his
accommodation request to Human Resources (HR) and never received a response. Complainant
stated that he provided HR a resume about the type of jobs he could perform, and HR did not
follow up with him. Complainant stated that HR contacted him in July 2016 with a potential
transfer department (timekeeping or engineering) but he thought those areas would put greater
stress on him.

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During the EEO investigation, as to (1), S1 stated, in about August 2015, Complainant assumed
the role of Primary Inventory Point Manager, which made him responsible for all of the ordering
and restocking for the whole clinic and over the course of a year he was failing at that position.
S1 stated that Complainant failed to pull data reports and generate reports, and he committed
egregious errors that resulted in over-ordering and negligent financial stewardship of Agency
funds. S1 stated that Complainant failed to properly address his inventory and solicited the help
of clinical staff to assist him, which took them away from their patient care duties. S1 stated that
he conferred with HR about the FRPI letter and it was a formal request for improvement to
prevent further action. S1 stated that the letter was not a PIP and he informed Complainant of
his concerns via emails before issuing the FRPI letter.

For incident (2), S1 stated that Complainant made purchases and orders via telephone and, on
October 19, 2015, Complainant called a routine vendor and left “you suck” on its voicemail. S1
stated that the vendor, V1, sent evidence of the voicemail and the originating number to Agency
management. S1 stated Complainant’s behavior was inappropriate, so he proposed a suspension.
S1 stated that he, S2, Complainant, and Complainant’s union representative met, and they
negotiated reduction of the proposal to a reprimand with a letter of apology to V1. S1 stated that
Complainant would not provide a reasonable, useable apology so he drafted one. S1 stated that
his letter of apology was a suggestion, and, if Complainant could not agree to an appropriate
apology, management would reinstate the proposed suspension. However, management did not
reinstate the proposal. Regarding incident (3), S1 stated that he was not aware that Complainant
had a disability and requested reasonable accommodation until he filed the instant complaint. S1
stated that Complainant may have submitted his accommodation request through HR.

The Supervisory Human Resources Specialist (HR1) stated, in 2015, she met with Complainant
to discuss the reasonable accommodation process. HR1 stated that she did not receive medical
documentation from Complainant, but Complainant requested a sedentary, non-physical position.
HR1 stated that Complainant’s accommodation request was still in a pending stage. She stated,
about June 2016, she contacted Complainant’s representative who stated that Complainant no
longer needed accommodation because management removed the PIP. Also, HR1 stated that
Complainant’s representative stated that Complainant wanted to pursue the matter through the
administrative process. HR1 stated that she believes Complainant took another Supply
Technician position, but he never contacted her again to check the status of his request.

In pertinent part, the investigative record contains the documents that follow.

▪ Emails from S1 regarding billing, vendors, spending limits, purchase orders,
procurement, and related matters that needed to be addressed by Complainant.
The emails range in date from March 2015 to July 2016.

▪ Proposed suspension dated November 9, 2015, citing “Inappropriate Conduct.”
The proposal alleged that Complainant contacted V1 twice on October 19, 2015,
and left a voicemail, stating “you suck” and then complaining about a billing error
in a subsequent voicemail.
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▪ Proposed settlement dated November 17, 2015, reducing the proposed
suspension to a Letter of Admonishment and a Letter of Apology from
Complainant to V1.
▪ Request for Reasonable Accommodation dated December 2, 2015. Complainant
stated, “I want to do a job, that is sedentary, and has no physical labor involved,
or a physical labor job, that does not have a fast pace, but a slow steady pace, but
I would prefer administrative job, that is not to[o] demanding.” Complainant
stated that he is unable to perform physical aspects of job due to vertigo and
dizziness at times. He requested a different type of position, such as
Administrative Assistant, Human Resources Assistant, or Health Coder and in a
different department or subcomponent of the Agency. The request provided a
limited release to request medical documentation.

▪ Formal Request for Performance Improvement dated December 16, 2015,
informing Complainant that his performance is “unacceptable” in four
performance standards and has been since his move to Primary Inventory Point
Manager in October 2015.

▪ Memorandum dated March 11, 2016, citing “Admonishment-[Complainant]-
Inappropriate Conduct.”

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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, but subsequently withdrew his hearing request.
Consequently, 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. Specifically, the Agency found that Complainant failed to show
discriminatory motives or to establish his need for an accommodation due to a disability.

The instant appeal from Complainant followed.

On appeal, Complainant stated that he was one of the best performers in the Logistics
Department. Complainant stated, due to harassment, on November 24, 2015, he requested the
reasonable accommodation of a new department and new supervisor. Complainant stated that he
provided medical documentation that recommended accommodations to reduce extreme work-
related stress. He stated that work-related stress caused him depression, panic attacks, difficulty
concentrating, low energy, anxiety, and insomnia. Complainant stated that transfer was the only
effective means of accommodation.

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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”).

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). After receiving a request for reasonable accommodation, the employer should engage in
an informal process with the disabled individual to clarify what the individual needs and identify
the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see
also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012).
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No.
01931005 (February 17, 1994).

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 provide reasonable accommodation in violation of the Rehabilitation Act. Complainant
stated that he had head trauma years ago and sometimes has forgetfulness, fuzziness in thought,
dizziness, and balance issues. He stated further that he can perform all of the duties of his
Supply Technician/Primary Inventory Point Manager position and was one of the best
performers in the Logistics Department. Complainant stated, in September 2015, he requested
FMLA for absences related to his occasional vertigo or dizziness. Subsequently, Complainant
submitted a Request for Reasonable Accommodation dated December 2, 2015. In that request,
Complainant asked for a position that is sedentary with no physical labor or with a slower pace.
He stated that he preferred an administrative position that is not too demanding. Complainant
also alleged that his supervision harassed him, and a transfer would be best for his mental health.

Based on the circumstances herein, we find that the Agency did not discriminate against
Complainant based on disability. Complainant failed to establish a nexus between his medical
needs and the requested accommodation.
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Without evidence sufficient to support a nexus between Complainant's disability and the
accommodation requested, we find that the evidence of record fails to establish that Complainant
required transfer to a different department or supervisor as reasonable accommodation. We
remind Complainant that he is not entitled to the accommodation of his choice and that change of
supervisor is not a required reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation, questions 9 & 33.

Hostile Work Environment and Disparate Treatment

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).

As to hostile work environment, we find that Complainant failed to establish a claim of
discriminatory harassment. Specifically, we find that Complainant failed to prove, by a
preponderance of the evidence, that the actions complained of were based on disability, age, or
reprisal. The Agency stated that it issued Complainant an FRPI letter, which was not a PIP but a
request for improved performance, due to his poor performance as Primary Inventory Point
Manager. The Agency stated it informed Complainant of performance concerns via email prior
to issuance of the FRPI letter. Further, the Agency stated that it proposed Complainant’s
suspension because he left an inappropriate message on the voicemail of an Agency vendor. The
Agency stated that it met with Complainant and his representative and agreed to reduce the
proposal to a letter of admonishment and letter of apology from Complainant to the Vendor. The
Agency stated that Complainant did not want to provide a genuine apology, so management let
him know that it would reinstate the proposal if he did not do so. It noted that it gave
Complainant a suggestion for an appropriate apology. Finally, HR stated that Complainant was
no longer interested in a transfer once management did not pursue a PIP. Complainant
acknowledged that HR contacted him with potential transfer departments but stated the positions
seemed more stressful. Complainant stated that he was the best performer in his department.

Further, to the extent that Complainant alleged disparate treatment, we find that Complainant
failed to establish that the legitimate, nondiscriminatory reasons articulated by the Agency for its
actions were pretext.
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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.
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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

July 26, 2019
Date