[Redacted], Aron W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020002887 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aron W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002887 Agency No. 200P-0605-2018103771 DECISION On August 21, 2020, 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 July 23, 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. 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 the Agency’s final decision. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination based on race, religion, disability, and reprisal when it did not select him for the positions that he applied for, removed him from federal service, and took other harassing actions. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a probationary Human Resources Assistant, GS-0203-06, at the VA Loma Linda Healthcare System, Human Resources Management Services, in Loma Linda, California. 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. 2020002887 2 He was hired on October 29, 2017, for a period not-to-exceed (NTE) November 24, 2018. Complainant qualified for the position pursuant to a special hiring authority for veterans with a service-connected disability rating of 30 percent or more. See Report of Investigation (ROI) at 1051. On July 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), religion (Christian), disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 Section 501 of the Rehabilitation Act of 1973 when: 1. On March 20, 2018, Complainant was not selected for the Human Resources (HR) Assistant position, GS-07, advertised under Vacancy Announcement No. CBDD- 10167817-18-CO; 2. On May 17, 2018, Complainant was not selected for the Training Assistant position, GS-07, advertised under Vacancy No. CBDD-10147744-18JMC; 3. On April 30, 2018, Complainant was removed during his probationary period; 4. On May 1, 2018, Complainant was notified via USAJOBS that he did not satisfy the time-in-grade requirement for the HR Assistant position that he applied for in claim 1; 5. From February 21, 2018 to May 1, 2018, Complainant was subjected to additional instances of harassment when: a) Complainant did not receive a response from a HR employee when he requested a progression opportunity in HR; b) Complainant’s supervisor failed to reassign him to a position within the main HR, as his supervisor had previously verbally promised; c) Complainant’s supervisor commented to Complainant, “Well, I talk to God, and He said it was okay for you to come to work [on Sundays] and later told Complainant that he “spoke with God, and God gave him the okay for [Complainant] to work and if he needed we could hold church at the office”; d) Complainant’s supervisor required Complainant to work on Sunday even though he explained that he had church obligations on Sunday; e) Complainant’s supervisor threatened to change Complainant’s disabled veteran leave to sick leave, or he would lose pay; and f) Complainant was informed by his coworkers that his supervisor had told them that he had been fired. 2020002887 3 The Agency subsequently accepted all of the claims and commenced an investigation. At the conclusion of the investigation into the accepted claims, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. In accordance with Complainant’s request, the AJ assigned to the matter dismissed the complaint and ordered the Agency to issue a final agency decision (final decision) on the merits of the complaint. On remand, the Agency determined that the record was insufficient to adjudicate claim 5(d), as the Agency had initially only accepted and investigated that claim as part of Complainant’s overall harassment claim and failed to recognize that the claim also constituted a discrete act. Because the Agency had failed to conduct a proper investigation, the Agency undertook a supplemental investigation into the merits of claim 5(d) and completed the supplemental investigation on May 26, 2020.2 Following the supplemental investigation, the Agency issued a final decision on July 23, 2020, pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant had been subjected to discrimination based on religion when his supervisor refused his request to attend church services and a religious class on Sunday, March 11, 2018, and instead required him to work overtime on that date (claim 5(d)). The Agency, however, found no merit to Complainant’s remaining claims. In this regard, for claims 1 and 4, concerning his non-selection for the Human Resources Assistant position, the Agency found that Complainant was not selected for that position because he did not have the requisite one year time-in-grade as a GS-06 to qualify for the GS-07 position. While the Agency considered Complainant’s contention that the Agency could have waived the time-in-grade appointment pursuant to the various special hiring authorities for veterans, the Agency found such contention to be insufficient to demonstrate pretext. In so finding, the Agency emphasized that the Commission did not have jurisdiction to review violations of the various special hiring authorities. For claim 2, concerning Complainant’s non-selection for the Training Assistant position, while the Agency acknowledged that Complainant had difficulty submitting his Standard Form (SF)-50 in support of his application, the Agency determined that Complainant’s non-selection had nothing to do with contents of his application, but rather his qualifications or lack thereof. In this regard, the Agency noted that Complainant was not the only applicant who failed to submit a SF- 50, as there was a technical glitch. 2 Though the ROI for the supplemental investigation into claim 5(d) is not in the record, we note that Complainant has already prevailed on that claim, thereby rendering unnecessary our review of that ROI. We note that the ROI for claims 1 to 5 and claim 5(a)-(d) and (e)-(f) is contained in the record. 2020002887 4 The Agency explained that all applicants who had problems submitting a SF-50 had their application status changed to “eligible” and were considered for the position. The Agency emphasized that two individuals reviewed Complainant’s application and assigned him a cumulative score of 44, which was three points below the cutoff score of 47. With regard to claim 3, concerning Complainant’s probationary removal, the Agency found that Complainant was removed from federal service for the following reasons: 1) Complainant improperly accessed confidential records related to his background investigation; and 2) Complainant was absent without leave for approximately four hours on April 27, 2018. Though Complainant admitted to improperly accessing confidential records, Complainant maintained that he was not absent without leave on April 27, 2019, as he was on disabled veterans leave at the time. While the Agency considered this explanation, the Agency concluded that it was insufficient to establish pretext. As for Complainant’s overall harassment claim, the Agency concluded that Complainant failed to persuasively show that he had been subjected to conditions that were so severe or pervasive to constitute a hostile work environment. In this regard, the Agency emphasized that Complainant had not presented any evidence, or even any particularized factual assertions, demonstrating a causal connection between the alleged incidents and his protected bases. The Agency further emphasized that the alleged denial of his request for disabled veterans leave (claim 5(e)), concerned matters not within the Commission’s jurisdiction. To remedy the finding of discrimination on claim 5(d), the Agency ordered the following remedial actions: 1) restore Complainant’s leave; 2) commit from engaging in unlawful employment practices; 3) conduct a supplemental investigation into Complainant’s entitlement to compensatory damages; 4) pay Complainant reasonable attorney’s fees and costs; 5) provide EEO training to Complainant’s supervisor and consider disciplining her; and 6) post notice of the finding of discrimination. The Agency subsequently completed the required remedial actions, and even reinstated Complainant to his previous position. The instant appeal followed. CONTENTIONS ON APPEAL Through his attorney, Complainant asserts that the Agency’s final decision is incomplete, as it only addresses his disparate treatment and harassment claims based on disability and reprisal. He contends that a fair reading of the complaint and the evidence of record shows that he had also alleged a failure to reasonably accommodate claim based on his disability. In this regard, Complainant asserts that he requested reasonable accommodation for his disability on March 2, 2018 when he complained to his supervisor about being overworked. Complainant recounts that he followed up with management on March 23, 2018 by email, wherein he, at the direction of the Administrative Officer, requested a change of duty hours for “work life balance.” Complainant maintains that management was, at the very least, on notice that he may have needed an accommodation, but failed to act. 2020002887 5 Complainant further contends that management failed to provide him with reasonable accommodation when he was charged with being absent without leave on April 27, 2019, as it would not have been an undue burden on the Agency to excuse his absence due to a medical emergency caused by his service-related disability. In support of his contention, Complainant cites to Schauer v. Soc. Sec. Admin, EEOC Appeal No. 01970854 (July 13, 2001) for the proposition that the Agency’s decision to charge him as absent without leave violated the Rehabilitation Act. Complainant emphasizes that his supervisor “failed to recognize [his] disability accommodation request, failed to engage in an interactive process to determine an effective and reasonable accommodation, and ultimately denied [his] request without demonstrating that approving it would have been an undue hardship.” Complainant also asserts that the record shows that the Agency subjected him to disparate treatment and a hostile work environment based on religion, disability, race, and reprisal on the accepted claims. With regard to his non-selection for the HR Assistant position, Complainant asserts that he informed his supervisor, who was coincidentally the selecting official, that he qualified for the position despite the time-in-grade requirement because the Agency had direct hire authority; however, his supervisor refused to use the direct hire process and ultimately did not select anyone for the position. He emphasizes that the Agency could have used the direct hire process to fill the HR Assistant position and the Training Assistant position, even though both positions were for internal candidates. In support of his contention, Complainant notes that the Agency hired two people through the direct hire process just two months later. Complainant also asserts that the Agency could have granted him retroactive disabled veteran leave. For the remaining claims, Complainant reiterates his prior contentions, as discussed above and in the Agency’s final decision. In response to the appeal, the Agency asserts that Complainant failed to show how a reversal of the final decision would benefit him, as the Agency has already granted and given him everything he was legally entitled to receive. 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”). 2020002887 6 ANALYSIS AND FINDINGS Preliminary Matters Our analysis begins with Complainant’s contentions regarding the Agency’s failure to address his denial of reasonable accommodation claim. While we are certainly mindful of Complainant’s contentions, including his citation to Schauer, supra, we nevertheless decline to address whether the Agency denied him reasonable accommodation, as Complainant never expressly raised that claim with the Agency or the AJ at the hearing stage. We note that Complainant had multiple opportunities to amend his complaint, including during the supplemental investigation; however, he repeatedly failed to do so. In accordance with our longstanding policy, we decline to allow Complainant to raise new claims for the first time on appeal. See Ken M. v. Smithsonian Inst., EEOC Appeal No. 2020002426 (May 19, 2021), citing See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). We shall therefore address only the accepted claims. In so doing, we are also mindful that the Agency believes that the matter is moot, as the Agency believes that it has already granted and given Complainant everything he was legally entitled to receive. However, we note that Complainant did not prevail on all of his claims, e.g., non-selection and removal.3 As Complainant would be entitled to additional remedies, should he prevail, we find that the matter is not moot. As such, we turn now to the merits of the complaint. Disparate Treatment We will address claims 1 to 4 under the legal standard for disparate treatment. For Complainant to prevail on these claims, he 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 Constr. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Petitioner must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. For the purposes of our analysis, we shall assume arguendo that Complainant established a prima facie case of discrimination on the alleged bases. 3 Though the Agency’s response to Complainant’s appeal states that Complainant was reinstated, the Agency did not provide any corroborating evidence showing that Complainant was in fact reinstated. We note that the Agency’s final decision did not order reinstatement, as Complainant did not prevail on his removal claim. 2020002887 7 As discussed above, however, the record reflects that the Agency had legitimate, nondiscriminatory reasons for taking the alleged actions, namely that his non-selections were due to his failure to meet the time-in-grade requirement for the HR Assistant position (claims 1 and 4) and meet the qualifications cutoff for the Training Assistant position (claim 2). With regard to Complainant’s removal, the record shows that Agency removed Complainant because he accessed confidential records and was absent without leave (claim 3). Having reviewed the record, we are unpersuaded by Complainant’s proffer of pretext. For claims 1 and 4, we are mindful of Complainant’s contention that the Agency used the direct hire authority to hire two other individuals; however, we are unable to discern from the record whether these comparators were similarly situated to Complainant, as the record does not show that these individuals were hired under the same special veterans hiring authorities that Complainant applied under. To the extent that the Agency violated the special hiring authorities, we note that the Commission does not have jurisdiction over these matters. With regard to claim 2, while we considered Complainant’s contention that he was unable to submit his SF-50 in support of his application, we note that his failure to do so had no impact on his candidacy, as the Agency recognized that there was a glitch in the system and considered all of the applicants who had not submitted a SF-50. However, Complainant was not interviewed because he did not make the cutoff to be interviewed. Given these factors, we are disinclined to find discrimination. As for claim 3, our review of the record shows that the Agency removed Complainant for two reasons: 1) Complainant improperly accessed confidential record related to his background investigation; and 2) Complainant was absent without leave for approximately four hours on April 27, 2018. While we are mindful of Complainant’s contention that the Agency should not have used his absence without leave as one of the reasons for his removal, we are nevertheless disinclined to find his removal to be discriminatory because the record clearly shows that he admitted to improperly accessing confidential information without authorization. ROI at 106. Given that Complainant was a probationary employee, a period when agencies have the greatest discretion, we conclude the preponderant evidence fails to persuasively show that Complainant’s removal was more likely than not due to his protected bases. Harassment/Hostile work Environment We turn now to Complainant’s overall harassment claim. As an initial matter, we find that a finding of harassment is precluded on claims 1 to 4 due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or 2020002887 8 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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). Further, the incidents must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). Having reviewed the record, we agree with the Agency that Complainant’s allegations of harassment, even if true, are insufficiently severe or pervasive to constitute harassment and/or not attributable to his protected characteristics. We also find that the underlying allegations would not dissuade a reasonable person from engaging in protected EEO activity. To the extent that Complainant argues that his supervisor acted unprofessionally towards him, the Commission notes that anti-discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant has not made such showing here. 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. 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). 2020002887 9 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. 2020002887 10 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 August 9, 2021 Date Copy with citationCopy as parenthetical citation