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

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020001995 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chad D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001995 Hearing No. 430-2018-00052X Agency No. 2004-0590-2017101293 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 17, 2019, final order which accepted the findings of an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order. BACKGROUND During the period at issue, Complainant was a full-time, career Police Officer GS-6/4, with the Agency’s Medical Center, located in Hampton, Virginia. He filed a complaint alleging discrimination based on disability (knee and depression) and reprisal for engaging in prior protected EEO activity when: 1. On July 18, 2016, S2, Deputy Chief of Police, told Complainant to surrender his badge and credentials and assigned him to the PIV (Personal Identify Verification) Office. 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. 2020001995 2 2. On July 18; September 2, 21, 29; and October 11, 2016, S1, Police Chief, violated his agreement with Human Resources (HR) during a conference call when he pressured Complainant to do more work and told him he did not do enough around the office and to get up and help more, which aggravated his injury more. 3. On August 16; September 2, 29; and October 11, 2016, S1 stated to Complainant that he needed to get healthy and back to work or he would deem Complainant a burden to the service, have him fired, and removed permanently from federal service. 4. On August 16, 2016, S1 threatened to charge Complainant with insubordination when he asked a simple question to the Police Academy about potential job opportunities. 5. On September 21, 2016, Complainant asked a simple travel question which infuriated S1. S1 threatened to charge him with union busting and told Complainant to quit representing the department. 6. On October 14, 2016, S2 informed Complainant that S1 did not want him to go to his appointment, because he had requested a reasonable accommodation.2 7. On October 14, 2016, S1 told Complainant in the reception area to leave his scheduled appointment with his physician and forcefully stated, “you work for me, remember that, you need to leave!” Complainant complied with S1’s order. 8. On October 18, 2016, S2 told Complainant that S1 would not grant him leave and would mark him Absent Without Leave (AWOL) if he did not report to work. 9. On November 18, 2016, Complainant was denied a reasonable accommodation by A1, HR Specialist. After an 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. Complainant requested a hearing. After the hearing, the AJ issued a bench decision. The AJ analyzed claims 1 - 6 as a claim that Complainant was subjected to a hostile work environment. Claims 7, 8, and 9 were analyzed as discrete acts of alleged discrimination. With respect to claim 7, the AJ found that S1 interfered with Complainant’s rights under the Rehabilitation Act when he denied Complainant access to his doctor’s appointment to complete his accommodation request. In finding a violation, the AJ noted that an employee need not establish that he was an individual with a disability in order to prove interference under the ADA. 2 Complainant was initially scheduled to attend a psychological evaluation as part of his annual physical examination, which was required of all police officers, but the physical examination was canceled because he was not currently serving in his police officer role. Due to his knee injury, Complainant was performing light duty and had recently requested a reasonable accommodation. S1 and S2 were already at the doctor’s office for their evaluations when Complainant arrived. 2020001995 3 With respect to all other claims, the AJ found in favor of the Agency. The AJ found that Complainant did not establish that he was subjected to a hostile work environment based on disability or reprisal. Regarding claim 8, the AJ, in finding no discrimination, noted testimony that S1 denied the leave request because Complainant had a pattern of using unplanned leave and the PIV office was short-staffed. Attendance records, the AJ found, confirm that Complainant used extensive sick and annual leave in September and October 2016, and that Complainant had no medical or other support for the use of leave. Regarding claim 9, the AJ found that a fair reading of Complainant’s accommodation request indicated that he sought either a reassignment or a change in supervisor in order to escape what he perceived as harassment that exacerbated his depression. Either way, the AJ found that seeking a non-hostile work environment, a less stressful work environment or a new supervisor was not a proper request for a reasonable accommodation. See Tessa L. v. Dep’t of the Interior, EEOC Appeal No. 0120141159 (Jul. 25, 2017). The AJ, among other remedial relief, ordered the Agency to pay Complainant $8,500.00 in compensatory damages, and $5,875.00 in attorney’s fees. The Agency issued a final order fully accepting the AJ’s decision. This appeal followed. On appeal, Complainant argues that the AJ erred in finding no discrimination regarding claims 1 - 6, 8, and 9. According to Complainant, he did present evidence that S1 and S2 subjected him to a hostile work environment and discrimination because of his knee injury and previous EEO activity. The Agency requests that its final order be affirmed. ANALYSIS AND FINDINGS At the outset, we note that the neither party is challenging the AJ’s finding of discrimination with regard to claim 7, or the remedial relief ordered by the AJ. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD- 110, Ch. 9, § VI.B. 2020001995 4 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VI.C (Aug. 5, 2015) provides that on appeal to the Commission, the burden is squarely on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. See id. In this case, this means that Complainant has the burden of pointing out where and why the AJ’s findings are not supported by substantial evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ’s] factual determinations are supported by substantial evidence”). Upon review of Complainant’s appeal, we find that he has not established that the AJ’s findings are not supported by substantial evidence in the record. Like the Agency, we find that Complainant presented no evidence or arguments challenging the AJ’s decision. Complainant recited his allegations of discrimination without indicating what, if any errors the AJ allegedly committed. Therefore, we find that Complainant has failed to show that the AJ erred finding no discrimination in claims 1 - 6, 8, and 9. We shall restate the relief ordered by the AJ as slightly modified herein. CONCLUSION Accordingly, we AFFIRM the Agency’s final order finding discrimination regarding claim 7, and no discrimination regarding claims 1 - 6, 8, and 9, because we find that there is substantial evidence in support of the AJ’s determinations. The Agency will comply with the Order herein. ORDER The Agency is ordered to take the following remedial actions to the extent the actions have not already been taken: 1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $8,500.00 for nonpecuniary, compensatory damages. 2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $5,875.00 in attorneys’ fees. 3. Within 90 days from the date this decision is issued, the Agency shall provide four hours of training to S1 as to the Agency’s obligations under the Rehabilitation Act with an emphasis on not interfering with employees’ rights. 4. Within 60 days from the date this decision is issued, the Agency shall consider taking disciplinary action against S1 for the discrimination perpetrated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. 2020001995 5 If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.3 The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Medical Center in Hampton, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 3 According to the Agency, S1 is no longer an Agency employee but that if he is reemployed it will provide him with the ordered training and will consider taking disciplinary action against him. 2020001995 6 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 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. 2020001995 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. 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. 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 June 2, 2021 Date