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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003597 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003597 Agency No. 200I-0546-2019100707 DECISION On May 31, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 21, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Registered Nurse at the Agency’s In-Patient Mental Behavioral Health Unit, Miami VA Medical Center in Miami, Florida. The Nurse Manager was Complainant’s first-line supervisor (“S1”) (African American, European/Caribbean). On January 25, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him based on national origin (Hispanic), color (white), and in reprisal for prior protected EEO activity when: 1. On July 16, 2018, S1 denied Complainant a reasonable accommodation of light duty, while other similarly situated employees were accommodated. 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. 2020003597 2 2. On October 25 and October 30, 2018, S1 bullied and humiliated Complainant by speaking to him in an intimidating voice. 3. On October 30, 2018, S1 restricted Complainant from contacting supervisors to request additional staff. 4. On November 26, 2018, S1 denied Complainant’s previously approved leave for December 24, 2018. 5. On December 25, 2018 and December 31, 2018, Complainant was not paid correctly. On January 21, 2021, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation: Claim 1 We note that the basis of disability was not expressly raised. However, given the nature of the matter raised in claim 1, an analysis in terms of a reasonable accommodation is in order. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, Complainant claimed that he had abdominal surgery and requested light duty on the inpatient psychiatric unit. S1 offered Complainant a day shift at his current duty station - 4AB, and/or day shift on the fifth-floor outpatient mental health programs which serviced a less acute mental health patient population. However, Complainant declined any offers to work any other shift outside of his night shift. S1 then recommended Complainant speak with the Human Reasonable Accommodation Coordinator in Human Resources (“RA Coordinator”). However, Complainant then decided to withdraw his reasonable accommodation request because his doctor no longer supported light duty work during his recovery and used his sick leave to recover. We find that Complainant is not entitled to the accommodation of his choice. See e.g., Casteneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to an effective reasonable accommodation). 2020003597 3 Complainant has not presented adequate evidence to support a finding that the alternative accommodations offered her by the Agency would not have been effective and comport with his physician’s recommendations. Thus, the evidence of record fully supports the AJ’s conclusion that he was not unlawfully denied reasonable accommodation. Disparate Treatment: Claims 3 - 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See 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, as here, 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 3, Complainant asserted that on October 30, 2018, S1 restricted Complainant from contacting supervisors to request additional staff. However, S1 explained that on October 30, 2018, she received an email from the Nursing Supervisor stating that Complainant contacted her to send a female Nursing Assistant to 4AB. The Nursing Supervisor reported that she informed Complainant he already had two female staff working, and that the unit was staffed according to the Agency’s guidelines. Further, S1 stated that the next day, October 31, 2018, she followed up with Complainant concerning his rationale for requesting additional staff on October 25, 2018. She noted that Complainant stated that he made a decision as the Charge Nurse because he already had made his assignments and did not want to change them. 2020003597 4 S1 informed Complainant that he should call the Nursing Supervisor whenever he had any concerns regarding the unit and/or staffing. Moreover, S1 stated “at no time during this conversation, or after, verbally or in writing, was [Complainant] restricted from contacting supervisors to request additional staff, verbally or in writing.” Regarding claim 4, Complainant alleged that on November 26, 2018, S1 denied Complainant’s previously approved leave for December 24, 2018, S1 asserted at no point there was a leave request for December 24, 2018, entered into VA Time and Analysis (VATAS) nor the prior system Veterans Health Information Systems and Technology (VISTA). She also noted there was no verbal discussion regarding a leave request for December 24, 2018. Complainant presented no evidence other than his own statement to the contrary. Regarding claim 5, Complainant claimed that on December 25 and December 31, 2018, he was not paid correctly. S1 stated that a review of the VATAS timecard records indicated that Complainant was coded as working on those dates with holiday premium. She noted that Complainant had not protested not being paid for the subject days to her. Furthermore, S1 stated that a review of payroll documentation confirmed that Complainant was paid with holiday premium for December 25 and 31, 2018. In sum, the evidence does not support Complainant’s claims that he was discriminated against with regard to the subject matters. S1 provided unrebutted testimony that either directly contradicted Complainant’s allegations or that provided a legitimate, non-discriminatory reason for the actions. Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were pretext designed to mask discriminatory or retaliatory animus. Harassment Complainant has also alleged that S1 created a discriminatory hostile work environment. To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases - in this case, his race, sex and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his national origin, color or prior EEO complaint. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2020003597 5 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003597 6 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 November 4, 2021 Date