[Redacted], Alphonse L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 2021Appeal No. 2020004230 (E.E.O.C. Dec. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alphonse L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004230 Hearing No. 490-2018-00078X Agency No. 200I-0626-201710404497 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 June 22, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues are whether it is appropriate to: (1) address Complainant’s claim that the Agency discriminated against him on the basis of his disability when it assigned him to the Inventory Specialist Position and required him to perform tasks outside his restrictions; and (2) add disability as a basis. 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. 2020004230 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Assistant Chief (GS-11), Sterile Processing Service (SPS) at the Agency’s Tennessee Valley Health Care System in Murfreesboro, Tennessee. On July 24-28, 2017, the National Program Office for Sterile Processing conducted a site visit and concluded that SPS leadership should be immediately removed due to a steady decline in the education, implementation, and oversight of regulatory and standards of practice, and “deep concerns” regarding the provision of safe access to care under the present leadership. Report of Investigation (ROI) at 227-39. On July 28, 2017, the Associate Director informed Complainant that he was relieved of his supervisory duties and operational oversight of the SPS based on the findings of an external audit. Complainant was also placed on an Enforced Leave status. ROI at 240. On August 15, 2017, the Associate Director notified Complainant that he was being detailed to Prosthetics and Sensory Aids Service because the allegations and information brought to the Agency’s attention warranted further review. ROI at 257. On September 19, 2017, the Deputy Director issued Complainant a proposed removal based on four specifications of Neglect of Duty. The Deputy Director concluded that the seriousness of the lack of oversight, negligence, lack of accountability, and potential for harm to veterans supported Complainant’s removal from the Agency. ROI at 245-7. On November 27, 2017, the Director issued her decision on the proposed removal, which was mitigated to a demotion to an Inventory Management Specialist position (GS-9), finding that the charges in the proposed removal were supported by substantial evidence. ROI at 258-60. On December 8, 2017, Complainant submitted a request for leave pursuant to the Family and Medical Leave Act (FMLA). ROI at 308-11. Complainant subsequently requested FMLA leave for December 26, 2017, through January 26, 2018, and January 29, 2018, through February 28, 2018, which was approved on December 19, 2017. ROI at 307. EEO Complaint On September 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), and color (Black) when: A. from July 24, 2017, to September 19, 2017, Complainant was subjected to a hostile work environment when: (1) he was prevented from participating in a National Performance Office for Sterile Processing site visit; (2) he was required to turn in all government- issued equipment, denied computer access, and escorted from the building by Agency Police and prohibited from both campuses of the Tennessee Valley Healthcare System; (3) his request for a copy of the findings of an administrative investigation was ignored; and (4) he was issued a proposed removal notice; 2020004230 3 B. from July 28, 2017, to August 11, 2017, Complainant was placed on “enforced leave” and required to use his accrued leave to remain in a paid status; C. on July 28, 2017, Complainant was removed from his position as Assistant Chief; D. on August 15, 2017, Complainant was detailed to Prosthetics and Sensory Aids Service; E. effective November 26, 2017, Complainant was demoted from the position of Assistant Chief of SPS (GS-11/5) to Inventory Management Specialist (GS-9/10); and F. on December 11, 2017, officials failed to accommodate Complainant’s disability when he was assigned to pick up boxes of supplies. The Agency accepted the claims for investigation and informed Complainant that claim E was a mixed-case claim appealable to the Merit Systems Protection Board (MSPB). The Agency also noted that claims B-F were timely raised discrete acts, in addition to being included in the overall harassment claim. ROI at 25, 31. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing before an EEOC AJ for his non- mixed-case claims. On December 11, 2018, Complainant moved to withdraw claim B due to a settlement agreement with the Agency. Also, on December 11, 2018, the Agency filed a Motion to Dismiss Claim E based on Complainant’s appeal of this same claim before the MSPB (Docket No. AT-0714-19- 0113-I-1), filed on or about November 14, 2018. Complainant timely responded to the Agency’s motion, and simultaneously filed a Motion to Stay Processing of This Complaint Pending Adjudication of his MSPB Appeal. Complainant asserted that the Agency’s Motion to Dismiss was unnecessary because claim E was not currently before the EEOC AJ and was processed separately from his other claims. However, Complainant stated that it was unclear if the MSPB would assert jurisdiction over claims A, C, and D, which all stem from events closely related to Complainant’s demotion, and as such, they should be held in abeyance. The Agency did not object to Complainant’s Motion to Stay. On February 6, 2019, the EEOC AJ issued an Order Dismissing Hearing Request and Remanding for Final Agency Decision. The EEOC AJ stated that, while the Agency filed a motion to dismiss claim E, Complainant correctly noted that the demotion claim was not part of this case because it was pending before the MSPB. The EEOC AJ found that the MSPB could determine that it lacked jurisdiction over some aspects of the complaint, and until the MSPB made that determination, the EEOC lacked jurisdiction over the matter, and she dismissed the hearing request and remanded the complaint to the Agency. On May 13, 2019, the MSPB AJ issued an initial decision for Complainant’s appeal of his demotion finding that the charge of negligence was not supported by substantial evidence. 2020004230 4 However, the MSPB AJ found that Complainant did not prove any of his affirmative defenses, including race discrimination. The MSPB AJ reversed Complainant’s demotion and ordered appropriate remedies. On July 20, 2019, the Agency filed for a petition for review of the MSPB’s initial decision. On June 22, 2020, the Agency issued the final decision. The Agency found that Complainant did not establish a prima facie case of discrimination when he was removed from his position as SPS Assistant Chief; detailed to another position; and issued a notice of proposed removal because the record was devoid of any evidence to suggest discriminatory animus based on race, color, or sex. The Agency also determined that Complainant did not establish a hostile work environment because the record contained no evidence to show that the alleged behavior was because of Complainant’s race, color, or sex. Regarding Complainant’s reasonable accommodation claim, the Agency found that the record contained no evidence that Complainant requested a reasonable accommodation, or that he was assigned work that violated an existing accommodation on December 11, 2017. The Agency determined that the record confirmed that Complainant did discuss his back surgery with leadership, and that he submitted medical documents in support of his FMLA leave request, which was fully granted. However, the Agency found that Complainant’s FMLA request was not equivalent to a reasonable accommodation request because leave associated with FMLA is a distinctly different process. The Agency concluded that Complainant did not establish that he was subjected to discrimination as alleged. Complainant filed the instant appeal, and he submitted a brief plus additional documents in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through his attorney, Complainant “requests the Commission review only claim (E) and only with respect to whether the Agency discriminated against him on the basis of his disability when it assigned him to the Inventory Specialist Position and required him to perform tasks outside his restrictions.” Complainant also requests that the Commission accept a basis of disability for claim F, noting that the Agency failed to expressly include disability as a basis, which appears to be an inadvertent oversight, and that the Commission has long recognized that a complainant is entitled to amend a complaint to accept an additional basis during the complaint’s processing. Complainant argues that the Agency’s final decision “totally ignores the issue of whether it discriminated against Complainant on the basis of the disability when it assigned him to the GS- 9 Inventory Management Specialist position.” 2020004230 5 Complainant asserts that management officials were aware of his medical restrictions at the time of the reassignment because it is undisputed that he disclosed his upcoming back surgery during his oral response to the proposed removal. Complainant states that the position description of the Inventory Management Specialist position includes required physical demands in excess of Complainant’s medical restrictions. Complainant asserts that he requested to be reassigned to a position in Prosthetics, and the Agency refused to consider his request. Complainant also avers that when the MSPB AJ ordered the Agency to return Complainant to his prior position, on an interim basis if it filed a Petition for Review, the Agency chose to assign him to a position which was patently outside his medical restrictions. In addition, Complainant argues that the Agency made an error of law in finding that his request for FMLA leave did not constitute a request for reasonable accommodation since the very purpose of the FMLA form is to seek an accommodation for a serious medical condition, it can constitute a request for reasonable accommodation under the Rehabilitation Act. Complainant further asserts that the Agency “should not be permitted to cavalierly resolve credibility disputes” in its favor and disregard his sworn testimony regarding the box lifting incident to exonerate itself from liability. Complainant adds that the Agency took over one year and four months to issue the final decision.2 Complainant requests that the Commission reverse the Agency and find that the record established that it discriminated against Complainant on the basis of disability when it assigned him to the Inventory Management Specialist position and required him to perform tasks that were outside his restriction. Agency Contentions The Agency counters that Complainant’s appeal should be dismissed because it asserts an issue which was not presented to the Agency during the processing of his EEO complaint or prior to the issuance of the June 22, 2020 final decision. Specifically, the Agency notes that Complainant’s demotion claim (claim E) was appealed as a mixed-case claim to the MSPB, and which Complainant contends was a matter “squarely within the MSPB’s jurisdiction,” and which remains pending before the MSPB. The Agency asserts that claim E was presented solely as a claim that Complainant was “demoted,” and he did not allege that the Agency took such action on the basis of Complainant’s disability; as such, there was no allegation presented that the Agency’s assignment to the Inventory Specialist Position was discriminatory because “it required [Complainant] to perform tasks outside his restrictions.” 2 While Complainant raises issues regarding the untimely issuance of the final decision, we note that he is not requesting that the Commission sanction the Agency for its action. 2020004230 6 The Agency also argues that Complainant had every opportunity to raise this allegation prior to the EEOC AJ’s February 6, 2019 dismissal of his hearing request, and there is no record that Complainant ever presented the issues in claim E to the Agency, or to the EEOC, prior to his appeal of the final decision. The Agency further notes that Complainant never timely asserted it in his EEOC complaint within 45 days of occurrence. The Agency states that Complainant correctly asserts that the Commission recognizes that a complainant is entitled to amend a complaint, even as of the time of hearing, but this principle is inapplicable to this appeal as there is no evidence that Complainant ever sought to amend his complaint at any time prior to the issuance of the final decision on June 22, 2020. The Agency also argues that Complainant set forth no evidence in his testimony of any incident when he was ever required to lift anything in violation of his medical restrictions, and that Complainant’s managers testified that they did not assign Complainant to lift boxes. Moreover, the Agency notes that claim E does not contain any assertion that Complainant was assigned to perform tasks outside his restrictions and no appeal is being asserted on claim F. The Agency objects to Complainant’s new evidence on appeal, noting that all of the documents predate the EEOC AJ’s February 6, 2019 dismissal of Complainant’s hearing request, therefore, those documents were available to Complainant prior to February 2019. The Agency also notes that Complainant has not made any assertion or showing that the record was incomplete. In addition, the Agency asserts that Complainant failed to show how he was prejudiced by any delay in issuance of the final decision, and that the Commission has held that an agency’s delay in the issuance of a final decision was not sufficient to make a finding of discrimination. The Agency requests that the Commission deny Complainant’s appeal. STANDARD OF REVIEW 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”). 2020004230 7 ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See id. at Chap. 9, § VI.A.3. Here, the Agency objected to Complainant’s new evidence on appeal, noting that all of the documents predate the EEOC AJ’s February 6, 2019 dismissal of Complainant’s hearing request. We find that Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. Claims on appeal As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id., at Chap. 9, § IV.A.3. On appeal, Complainant stated that that the “sole issue” is whether the Agency was correct in finding that he was not discriminated on the basis of his disabilities when the Agency assigned him to the Inventory Management Specialist position and when it required him to perform tasks that were outside his medical restrictions. However, Complainant also requests the addition of disability as a basis for claim F, and he raises other arguments regarding a failure to accommodate. We find that Complainant made two specific requests in his appeal brief: (1) “the Commission review only claim (E) and only with respect to whether the Agency discriminated against him on the basis of his disability when it assigned him to the Inventory Specialist Position and required him to perform tasks outside his restrictions”; and (2) the addition of disability as a basis for claim F. While Complainant raised additional arguments to allege that the Agency failed to accommodate him, we find that these arguments are in support of his contention that the Agency discriminated against him on the basis of his disability when it assigned him to the Inventory Specialist Position and required him to perform tasks outside his restrictions. As such, this decision will only address Complainant’s two specific requests in his appeal. Regarding claim E, it is undisputed that this claim is pending before the MSPB, and the Agency properly excluded it from its final decision. We find that Complainant inappropriately attempts to raise claim E on appeal before the Commission and add a new discrimination claim that the Agency assigned him to the Inventory Specialist Position and required him to perform tasks outside his restrictions. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). 2020004230 8 While the accepted demotion claim and the reassignment to the Inventory Specialist position occurred simultaneously, we find that the allegation that the reassignment to this position was inappropriate because it required Complainant to perform duties that were beyond his medical restrictions was not previously raised, nor investigated. In addition, Complainant raises new allegations that the Agency failed to accommodate him, such as when it did not reassign to a position in Prosthetics and when the Agency chose to assign him to a position which was patently outside his medical restrictions, after the MSPB AJ ordered the Agency to return Complainant to his prior position. However, Complainant’s accepted failure to accommodate claim only includes an allegation that he was assigned to pick up boxes of supplies on December 11, 2017. We note that the Agency informed Complainant that he should contact them if he believed that the accepted claims were not complete or correct, and Complainant does not contend that he contacted the Agency to modify the accepted claims. ROI at 22. Further, we note that Complainant did not move to amend his complaint, either with the Agency or the EEOC AJ, to include these additional claims. As such, we find that any additional allegations of a failure to accommodate are not appropriate to raise for the first time on appeal. We further find that Complainant’s allegation that the Agency failed to accommodate him when the Agency chose to assign him to a position which was patently outside his medical restrictions, after the MSPB AJ ordered the Agency to return Complainant to his prior position, occurred well beyond the scope of the accepted claims in the instant complaint and should he wish to pursue this new claim, Complainant is advised to contact an EEO Counselor to initiate the administrative process. Accordingly, we decline to address Complainant’s new allegations raised for the first time on appeal. To the extent that Complainant argues that the Agency erred in finding that his request for FMLA leave did not constitute a request for reasonable accommodation, we find that any error on the Agency’s end is not significant because Complainant did not claim that the Agency denied him FMLA leave, and the record shows that Complainant’s FMLA leave requests were approved. ROI at 307. Complainant also argues that the Agency discredits his sworn testimony regarding the box lifting incident and simply credits the supervisors’ statement that it did not occur. While Complainant asserts that the Agency “should not be permitted to cavalierly resolve credibility disputes,” Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). 2020004230 9 In this case, Complainant did not provide any evidence, aside from his own assertions, to disprove the testimony of the Agency’s witnesses. As such, we find that Complainant did not meet his burden to show that the box lifting incident occurred as alleged. In addition, Complainant requests that the Commission add disability as a basis for claim F. The Commission has found that it is not appropriate to raise a new basis for the first time on appeal, absent a compelling reason, because allowing a complainant to raise a basis not presented to the Agency at some point prior to its final determination would thwart the investigative process. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000). While the Agency inadvertently excluded disability as a basis for claim F when it accepted the complaint for investigation, the Agency analyzed claim F as a failure to provide a reasonable accommodation based on disability in the final decision. As such, we find that there is no need to address the “addition” of disability as a new basis. We note that Complainant did not provide any arguments to challenge the Agency’s remaining findings in the final decision. Accordingly, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on his race, sex, or color. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on his race, sex, or color. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020004230 10 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004230 11 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 December 13, 2021 Date Copy with citationCopy as parenthetical citation