[Redacted], Broderick D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 5, 2022

Appeal No. 2022003211 (E.E.O.C. Dec. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Broderick D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022003211 Hearing No. 541-2019-00099X Agency No. 2003-0554-2018104333 DECISION On May 23, 2022, 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 May 9, 2022, final order 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., 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (MSA) at the Agency’s VA Medical Center in Denver, Colorado. On August 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of color (black), disability (physical), age (YOB: 1949), 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. 2022003211 2 and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In December 2017, the complainant was denied reasonable accommodation when he was reassigned from the [Total Support Supply] TSS Break Room; 2. On February 2018, during training, the Supervisory Medical Support Assistant (Supervisor) stated to the complainant, “Well you better catch on these procedures or else.” 3. Between February and March 2018, the complainant submitted a doctor’s note which was deemed unacceptable; 4. After February 2, 2018 and another training, the Supervisor continuously informed the complainant that he needed to type faster and “catch on more quickly,” 5. In March 2018, the Supervisor began asking complainant daily if he had a retirement date; 6. On April 6, 2018, the Supervisor presented the complainant with an e-mail from Human Resources stating he did not have a retirement date on file, requested him to provide a retirement date, and subsequently granted him off that afternoon to “work out the date,” 7. On May 16, 2018, the Supervisor questioned the complainant again when he was going to retire. Complainant had worked as a Supply Technician in TSS since 2002. At some time in 2017, Complainant had a car accident and suffered back injuries. See Report of Investigation (ROI) at 326. On May 8, 2017, a doctor concluded that Complainant could no longer meet the functional requirements for the Supply Technician position because of his physical restrictions and Complainant submitted a request for a reasonable accommodation of reassignment. See ROI at 352-56. The Agency reassigned Complainant to the MSA position as a reasonable accommodation which Complainant accepted on December 7, 2017. See ROI at 360-61. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s July 21, 2020, motion for a decision without a hearing and issued a decision without a hearing on May 5, 2022. The AJ initially noted that the only disability for which Complainant requested an accommodation was a back injury and Complainant himself acknowledged that no one at the Agency knew of his tinnitus. The AJ found that the Agency did not deny Complainant a reasonable accommodation because it reassigned him to the MSA position and Complainant has not shown that there were any other positions available which he could have taken and in addition, Complainant’s later request for an accommodation requested to be reassigned back to his previous position was not based on any disability but because he could not perform the MSA job. 2022003211 3 The AJ finally found that the Supervisor asked Complainant about his retirement because Complainant had mentioned several times to him and other employees that he planned to retire at the end of April 2018 and that taken together, the alleged incidents were not severe or pervasive enough to constitute harassment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). We find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed and that Complainant failed to establish a genuine dispute of material fact. Complainant’s argument on appeal that the AJ erred by accepting the Agency’s “self-serving” evidence is unavailing as Complainant did not provide any evidence to support his challenges to the Agency’s evidence.2 It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We therefore find that the AJ’s issuance of a decision without a hearing was proper. We find that the AJ’s decision correctly identified the legal standards for Complainant to establish that the Agency violated the Rehabilitation Act by denying him a reasonable accommodation. The AJ correctly determined that the evidence in the record does not support Complainant’s assertion that he was denied a reasonable accommodation. Complainant’s mere insistence that the Agency could have reassigned him to some other position aside from the MSA position is simply not sufficient to establish any violation of the Rehabilitation Act. See Randle- Banks v. U.S. Postal Serv., EEOC Appeal No. 07A10076 (Sept. 25, 2002) (stating that a complainant is required to identify particular vacancies which existed at the time or otherwise show that, more likely than not, a funded vacancy for which he satisfied the prerequisites existed at the relevant time within the commuting area). 2 Moreover, to the extent Complainant appears to challenge the veracity of the Agency’s explanations based on a class action complaint against the Agency or of the Supervisor’s later employment history, there is no evidence indicating that either of those incidents are at all relevant to the instant case. 2022003211 4 In addition, the evidence in the record supports the AJ’s finding that Complainant’s later request to be reassigned to his previous position was because Complainant did not have the skills to perform the MSA position, which is not the purpose of the reasonable accommodation process. We further find that the AJ’s decision correctly identified the legal standards for Complainant to establish that he was subjected to disparate treatment and a hostile work environment. We conclude that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant himself acknowledged that he could not perform the MSA position because he didn’t have the administrative background or the computer skills for the position. See ROI at 330. The Employee and Labor Relations Specialist, who handled Complainant’s accommodation request, stated that Complainant did not inform her until months after he had accepted the MSA position that he did not have the requisite skills for the position and Complainant never submitted a self-assessment of his knowledge, skills, and abilities. See ROI at 347-48; 366. The Supervisor stated that Complainant was counseled multiple times because of his poor performance and was offered MSA training three times but never improved his performance. See ROI at 338-39. He explained that he questioned Complainant about his retirement plans because he had heard from two other employees that Complainant had told them that he was retiring in April 2018 and it was his responsibility to ensure proper staffing so if Complainant was planning to retire, he needed to be aware of it in order to plan for filling Complainant’s position. See ROI at 339-40. The Supervisor stated that he contacted Human Resources to inquire if Complainant had a retirement date on file and when told Complainant did not, even while Complainant continued to state his intention of retiring, he sent Complainant to HR to address the confusion. See ROI at 340-41. We conclude that the AJ correctly found that Complainant did not establish that any of the Agency’s reasons were a pretext for discrimination. Significantly, Complainant did not provide any evidence to support his assertions of a discriminatory motive. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). While Complainant insists that he is not simply taking issue with the Supervisor’s management style, his subjective assertion that the Supervisor’s tone was abusive and belligerent is not sufficient to meet the objective standard required to establish a hostile work environment. See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120052563 (July 3, 2007). Moreover, the Commission has repeatedly held that incidents that are the result of routine supervision, managerial discipline, and general workplace disputes do not rise to the level of severe or pervasive conduct to establish a hostile work environment. See Maricela P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141945 (Oct. 21, 2016); see also Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) (A supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence” and generally does not constitute harassment). 2022003211 5 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 order finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2022003211 6 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. 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 5, 2022 Date