[Redacted], Bill S.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021001808 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001808 Hearing No. 520-2017-00583X Agency No. 200H-0632-2016103890 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 15, 2020, finding no discrimination concerning 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 worked as a Medical Support Assistant, GS-06, Health Screening/Community Relations at the Agency’s Veterans Affairs Medical Center Northport in Northport, New York. On September 6, 2016, Complainant filed a formal complaint alleging that he was subjected to a hostile work environment based on race (African American), sex (male), and disability as evidenced by the following events: 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. 2021001808 2 1. On January 28, 2016, he was charged Absent Without Official Leave (AWOL) from 9:00 am to 11:00 am, and 1:00 pm to 3:00 pm. 2. On May 3, 2016, he was charged AWOL from 7:30 am to 7:40 am and 8:15 am to 9:25 am. 3. On May 5, 2016, he was charged AWOL from 8:40 am to 9:52 am. 4. On May 12, 2016, he was charged AWOL from 7:30 am to 4:00 pm. 5. On May 15, 2016, a research flyer was placed on his desk that was offensive because of his current condition. 6. On May 17, 2016, his first level supervisor (S1), Community Relations and Outreach Supervisor, and his second level supervisor (S2), Executive Assistant to the Director, placed him on a Performance Improvement Plan (PIP) for alleged poor performance and also proposed denying his within grade increase. 7. From May 19-26, 2016, S1 required him to work without taking a lunch break. 8. On May 26, 2016, he became aware his coworker (C1), Medical Support Assistant, had received an email regarding a meeting about him being AWOL, which was posted on the shared calendar and visible to all of his coworkers. 9. On or about June 2016, S1 and his coworker (C2), Medical Support Assistant, told him that he was no longer attending a community outreach event he was previously scheduled to attend. 10. On June 1, 2016, S1 intimidated him by yelling and screaming in his face, and falsely accusing him of not completing certain forms. 11. On June 1, 2016, S1 issued a proposed reprimand to him for being AWOL, lack of candor, failure to comply with leave procedure, failure to follow instructions, and careless workmanship. 12. On or about June 6, 2016, S1 notified him that she was starting a fact finding into his being AWOL and his failure to follow instructions. 13. On June 9, 2016, S1 told him she wanted to meet with him to discuss his being AWOL. 14. On June 13, 2016, during their first meeting for his PIP, S1 presented him with several old assignments to work on, rather than addressing his present performance concerns. 15. On June 22, 2016, he was presented with a last chance agreement that would strip him of all his rights and put him on probation, which could cause him to be removed under broad circumstances with no avenue for recourse. 16. On June 27, 2016, S2 issued him a formal reprimand sustaining the charges outlined in the June 1, 2016 proposed reprimand. 17. On June 27, 2016, he became aware that S2 denied his within grade increase. 18. On July 8, 2016, S1 accused him of threatening her; which caused him to be involuntarily held in the facility’s psychiatric ward for six days, and unable to return to work until August 1, 2016. 19. Since August 3, 2016, he has not been given keys or printer access to the new office he was assigned to work in. 20. On August 3, 2016, S1 verbally attacked him in front of his wife, then denied his request to have a witness present for a meeting about to begin to discuss the incident. 21. On August 10, 2016, S1 proposed a one-day suspension for him during a meeting to discuss the PIP. 2021001808 3 22. On August 15, 2016, he became aware that his advanced sick leave was not put into the system on time, which resulted in him having to take leave without pay for two days of leave that he had previously been approved to take. 23. On August 16, 2016, he was accused of losing a patient application and supporting documentation on two occasions after having a phone call with W2, even though he denied losing the information. 24. In or about September 2016, he was charged with being AWOL when he took leave for an appointment. 25. On September 24, 2016, he served a one-day suspension for bad behavior that had been proposed on August 10, 2016. Complainant did not challenge the Agency’s framing of his claims. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that his disability (right shoulder, left knee, lower back, wrists, and posttraumatic stress disorder) did not impair from performing his position duties. Complainant stated that he was reassigned to the instant office from another Agency office on October 5, 2015, and his last day in the instant office was September 29, 2016, which is not at issue. As a Medical Support Assistant, Complainant’s primary duties involved obtaining veterans’ applications for their Veterans Affairs healthcare eligibility and entering the information in the healthcare system to be assigned to a healthcare provider. Regarding claims 1, 2, and 3, S1 stated that Complainant was not in his office on the occasions at issue and was absent without authorization. Regarding claim 4, S1 indicated that Complainant was not charged AWOL; rather Complainant was placed on an emergency sick pay and was paid for that day. Complainant acknowledged that S1 approved his sick leave for that day. Regarding claim 5, Complainant indicated that the flyer was about overweight people and he was offended because he was, according to Complainant, a little “plump.” Management had no knowledge about this incident. Regarding claims 6 and 17, S1 indicated that Complainant was placed on a PIP on May 17, 2016, because two critical elements of his performance, i.e., Program Administration and Customer Service, were unacceptable since the beginning of the appraisal period, i.e., October 6, 2015. Specifically, S1 stated that Complainant failed to communicate with his coworker and supervisor regarding daily operations, including working on applications, assisting veterans and incomplete tasks; he failed to document veterans’ appointments accurately and consistently; he made numerous critical mistakes in registering patients for benefits, including entering in wrong social 2021001808 4 security numbers and wrong spelling of veterans’ names and income; he failed to utilize Agency computer programs to accomplish his work; he failed to review and respond to electronic messages in a timely manner; he failed to complete mandatory training a timely manner; he failed to provide timely assistance to veterans; he failed to timely contact veterans about their applications; and he failed to follow up with patients regarding their eligibility and their application status. S1 indicated that her department received numerous calls from veterans Complainant had worked with that they did not receive a call regarding their eligibility status. S1 also indicated that there had been several occasions that at events, Complainant had a head piece in his ear, and it was reported that he was watching videos or news on his government issued laptop. The record indicates that on May 19, 2016, S1, and concurred by S2, issued Complainant a special rating of record of Unacceptable (the lowest rating). Specifically, Complainant received Unacceptable level of achievement for his two critical elements of Program Administration and Customer Service. Receiving the Unacceptable rating for two critical elements, meant he was required to receive the overall rating of Unacceptable. Complainant was not eligible for a within grade increase due to his overall Unacceptable rating. S1 indicated that Complainant was given a variety of training and counseling for his performance issues, but his performance did not improve. S1 also indicated that due to Complainant’s errors, her team and another team had to work on over 100 veterans’ records and service recovery for several months. As a result of his not meeting an acceptable level of his performance standards, S2 withhold Complainant’s within grade increase, which was due June 14, 2016. Regarding claim 7, S1 stated that she never denied her employees, including Complainant, their lunch breaks. Regarding claim 8, Complainant indicated that S1 told him she made a mistake. S1 stated that it was her practice to email directly to Complainant, not in a share calendar, regarding Complainant’s AWOL meetings. Complainant does not indicate that S1 posted his AWOL meeting in the shared calendar any occasion other than this isolated incident. Regarding claim 9, S2 stated that she managed the schedules and outreach events. She indicated that staff attended community outreach events based on the number of veterans attending the events. Since the number of veterans attending the event at issue were low, S2 stated that Complainant was not sent to the subject event. Regarding claim 10, S1 indicated that she went to Complainant’s office to give him his patients’ records to make corrections. S1 stated that Complainant became argumentative and slammed his drawer and left his office. Complainant acknowledged that S1 did not yell or scream at him. Regarding claims 11 and 16, S1 issued a proposed reprimand to Complainant due to his AWOLs and for failure to comply with leave procedures on several occasions in January and May 2016, for failure to follow instructions (by keeping veterans’ applications in his locked drawers and not 2021001808 5 entering veterans’ information as instructed on a number of occasions), for lack of candor (informing S1 that there was no incomplete work when there in fact were about ten incomplete applications/work), and for careless workmanship (not providing information regarding patients’ benefits and eligibility during a meeting). Subsequently, S2, sustained S1’s proposal, and issued a decision to reprimand. Regarding claim 12, the record indicates that S1 conducted a fact-finding interview on July 6, 2016, about Complainant’s misconduct concerning unauthorized absence and breaks and failure to follow instructions. Specifically, S1 stated that Complainant failed to request to leave the work area repeatedly for extended periods of time during the workday without approval; his trainer informed S1 that Complainant would disappear for 50 minutes without an explanation; and he failed to identify or provide any documentation whether he called his assigned veterans as instructed to do so. At the end of the interview, Complainant added his comments that “I see a lawsuit coming on real soon. I am tired of all of this witch hunt each day I work.” Regarding claim 13, S1 denied the incident. Complainant indicated that he did not remember if they met on June 9, 2016. Regarding claim 14, S1 indicated that Complainant was given his assigned veterans’ records, where he made errors, in order to make corrections. Regarding claim 15, S1 and S2 stated that they had no knowledge about the incident. The record is devoid of a Last Chance Agreement. Complainant indicated that a last chance agreement issue was brought up at the PIP meetings. Regarding claim 18, the record indicates that S1 and Complainant, including his union steward and a HR Specialist, attended the July 8, 2016 PIP meeting. During the meeting, Complainant became argumentative and S1 asked him if he wanted to go to the employee health unit since he was getting increasingly angry and calling her names. Upon his request, S1 escorted Complainant to the health unit. Complainant checked in to the emergency room. S1 left her contact information with the front desk in case they needed to contact her and left the health unit. S1 did not know if Complainant was involuntarily admitted to a psychiatric ward or not. Complainant indicated that when he checked in to the emergency room, he told a psychiatric doctor that he was very angry. The doctor then advised him to go upstairs to the psychiatric ward. Complainant followed that advice and he was released from the ward after six days. The union steward and the HR Specialist stated that both S1 and Complainant were argumentative during the meeting at issue, but they did not remember any yelling, screaming, or threatening between them. Regarding claim 19, S2 indicated that Complainant worked in a limited key office which was for a surgical team which only had one key. Since they were not able to reproduce the key based on the facility rules, the office was opened early so Complainant could enter and closed each day by S1 or S2 after he left. S1 stated that Complainant was given temporary access to the office in a 2021001808 6 back hallway. Regarding Complainant’s printer issue, S1 stated that when Complainant asked her for assistance, she called Information Technology who fixed his printer issue. Regarding claim 20, Complainant indicated that his wife was visiting his office on August 3, 2016, when S1 walked in. S1 told him about his work and asked his wife to leave. Complainant stated that his wife told S1 she was not leaving. S1 indicated that Complainant then stood up and screamed at her to leave his office. S2 then came to Complainant’s office and asked S1 to leave and brought both Complainant and his wife (who was still there) into the common area of the office to ensure everybody’s safety. Regarding claims 21 and 25, S1 issued Complainant a proposed one day suspension for his inappropriate conduct (slamming his desk draw or his office door and leaving his office while discussing his work with S1 on June 1 and 29, 2016), for lack of candor (informing S1 that he called a veteran as instructed when he did not on June 21 and 23, 2016), for AWOLs/failure to follow leave procedures in June 2016, and for failure to follow instructions on five occasions in June 2016. S1 stated that Complainant’s June 27, 2016 reprimand was taken into consideration for the proposal. S2 sustained the foregoing proposal and issued a one-day suspension effective September 23, 2016. Regarding claim 22, S2 indicated that it was Complainant’s responsibility to put the advanced sick leave request into the Agency’s time and leave system, which was a new time keeping system, and receive the Director’s approval. The office was not able to locate the documents Complainant submitted to the Director until two or three days later at which time his request was approved and his leave corrected. Regarding claim 23, S1 indicated that several weeks after Complainant met with a veteran and the veteran’s family, S1 asked Complainant for the veteran’s application and the military form. As Complainant denied having either, S1 asked him to reach out to the veteran’s family and explain that the office needed a new copy of the application and the military form as they were lost. Complainant told S1 that he would do this, but he never did. A couple weeks later, Complainant’s coworker had to call the veteran for a replacement application. Regarding claim 24, Complainant indicated that he requested Leave Without Pay (LWOP) since he did not have any accrued leave for his doctor’s appointment, but he was charged AWOL. S1 indicated that Complainant was not charged AWOL for his doctor’s appointment; rather, he was given 2.5 hours of accrued sick leave and LWOP for the rest as he requested. Complainant appeals from the Agency’s final decision. 2021001808 7 ANALYSIS AND FINDINGS 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 (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"). Disparate Treatment To prevail in a disparate treatment claim such as this, 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 or she 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, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift 2021001808 8 Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). After a review of the record, we find, assuming arguendo Complainant established a prima facie case of discrimination, that the Agency proffered legitimate, nondiscriminatory reasons for the alleged incidents. The Agency charged Complainant AWOL because he left work areas without S1’s approval. Further, Complainant was placed on a PIP and was denied a within grade increase because he was not meeting an acceptable level of his performance standards for his position. The record indicates that Complainant made numerous errors in his work. On many occasions, Complainant either did not finish his assignments or finished in an untimely manner. On some occasions, S1 or his coworkers were required to fix veterans’ records due to Complainant’s errors, i.e., by entering wrong social security numbers or wrong spelling of veterans’ names and incomes. S1 indicated that Complainant was issued the June 27, 2016 reprimand due to his failure to comply with the Agency’s leave procedures, his failure to follow instructions, for lack of candor, and for careless workmanship. S2 issued Complainant a one-day suspension for his inappropriate conduct, lack of candor, AWOLs/failure to follow leave procedures, and for his failure to follow instructions. Upon review, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. We further 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. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). S1 and S2, as supervisors, were responsible for making business decisions, assuring compliance with Agency leave policy and procedures, monitoring subordinates, assigning the tasks, scrutinizing and evaluating performance, providing job-related instructions and counseling, taking action in the face of performance shortcomings (such as the PIP at issue), and managing the workplace. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2021001808 9 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). 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, 2021001808 10 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 April 25, 2022 Date