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

Equal Employment Opportunity Commission

Jan 27, 2022

Appeal No. 2020005308 (E.E.O.C. Jan. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damon Q.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005308 Hearing No. 530-2018-00150X Agency No. 200H-0646-2017193598 DECISION On September 21, 2020, Complainant filed a motion for sanctions, regarding the Agency’s untimely issuance of its final decision (FAD), with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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. Thereafter, on September 24, 2020, the Agency issued its FAD. For the following reasons, the Commission AFFIRMS the Agency’s decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chief Financial Officer (CFO), GS-14, at the VA Pittsburgh Healthcare Systems facility in Pittsburgh, Pennsylvania. 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. 2020005308 2 On July 24, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (hypertension, Autism Spectrum Disorder (ASD), and Post-traumatic stress disorder (PTSD) 2), and reprisal for prior protected EEO when: 1. On May 2, 2017, the Associate Director (AD) issued Complainant a proposed 14-day suspension for inappropriate conduct; 2. On June 1, 2017, the Complainant’s May 17, 2020 request for a reasonable accommodation in the form of a geographic reassignment was denied; 3. By letter dated June 5, 2017, the Veterans Integrated Service Network (VISN)-4 Network Director sustained the proposed suspension and issued Complainant a 14-day suspension effective June 25, 2017 through July 8, 2017. 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, but subsequently withdrew his request. Consequently, on March 5, 2020, the AJ issued an Order for Dismissal for Final Agency Action. On September 20, 2020, when the Agency failed to timely issue a final decision, Complainant filed a motion for sanctions with the Commission seeking a default judgment. Thereafter, on September 24, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that the Agency articulated legitimate, nondiscriminatory reasons for the suspension, i.e., that Complainant left the facility prior to the end of his tour of duty without authorization and exhibited inappropriate behavior towards his subordinates, and that Complainant failed to establish that the proffered reason was a pretext. Specifically, the Agency noted that the proposed suspension, which was later sustained, was issued because, on September 30, 2016, Complainant left the facility prior to the end of his tour of duty without authorization. See Report of Investigation (ROI) at 116. The Chief of Accounting (CA) informed the AD, who was Complainant’s supervisor, of Complainant’s unauthorized early departure. See id. Later that day, the CA sent Complainant a text message stating that she and the Assistant CFO would not be in the office the following day. See id. Complainant responded via text saying, “You both resign? K, I’ll do the ARPS’s Monday!” and “I’m confused. You both quit and now making allegations while trespassing on federal property? Or is it just you indicting the innocent [assistant CFO]? Sorry Lady. Had to have some priorities. I’m real close if needed!” Id. at 116-117. Additionally, when he returned to the facility, Complainant asked the Assistant CFO why he did not answer the email Complainant had sent him approximately 20 minutes earlier. 2 We note that the Agency’s FAD failed to include PTSD as one of Complainant’s disabilities. 2020005308 3 Complainant threatened to discipline the Assistant CFO for insubordination, noting that he had fired people before. See id. at 117. Complainant also commented to the CA that, while he did not need his job, the CA needed hers and, since she “threw [Complainant] under the bus,” he was taking away her compressed work schedule. See id. at 117. Based on these interactions with subordinates, as well as his early departure, the Agency issued Complainant the 14-day suspension. The Agency concluded that Complainant had not established that the reasons for the suspension were pretextual. With respect to his reasonable accommodation request, the Agency found that it provided Complainant with an alternative reasonable accommodation. The medical documentation Complainant provided did not support his request for a geographic reassignment. Specifically, Complainant requested to be reassigned as the Assistant Director at the Memphis VA Medical Center (VAMC) in order to allow him to have continuous support from both his treating psychiatrist and therapist. See ROI at 135-36. Instead, the Agency provided Complainant up to 24 hours of leave without pay, per pay period, to allow him access to his established behavioral health care team. See ROI at 133. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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, 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”). Request for Sanctions - Untimely Final Agency Decision Complainant requests we sanction the Agency, in the form of a default judgment, for the untimely issuance of its final decision. On March 5, 2020, the AJ ordered the Agency to issue a final decision in accordance with EEOC regulation 29 C.F.R. § 1614.110. This regulation provides that agencies must issue a final decision within 60 days. The Agency, however, did not issue its final decision until September 24, 2020, or 203 days after the AJ’s order. In response, the Agency acknowledges the delay in issuing the FAD but explained that it was due to the need to transition to an all-virtual work environment, in response to the Covid-19 pandemic, as well as a dramatic increase in workload. 2020005308 4 The Agency contends that the delay was only four months and that Complainant did not suffer any prejudice beyond the time waiting for the FAD. Moreover, argues the Agency, because it has since issued the FAD, the request for sanctions is moot and the imposition of any sanction at this point would be unduly punitive. Complainant argues the April 6, 2020 Memorandum issued by this office, regarding the processing of federal sector EEO complaints in light of the Covid-19 pandemic, instructed agencies to continue issuing final actions where the investigation was complete and the Complainant requested a FAD, as in this case3. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). While we recognize that the decision was not issued within the 60-day time limit, the Agency explained that the delay was due to the global pandemic. Complainant has also not shown that he was prejudiced in any way by the delay. Under the specific circumstances of this case, we find that the Agency has not acted in such a manner as to justify the imposition of a sanction. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571- day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). We therefore decline to issue a sanction against the Agency. Disparate Treatment Turning to the merits of the complaint, Complainant alleged that the Agency subjected him to discrimination and a hostile work environment on the basis of disability (ASD, high blood pressure, and PTSD) and reprisal for prior protected activity. 3 The record reflects that in withdrawing his request for a hearing, Complainant asked that AJ remand his case to the Agency for a FAD. 2020005308 5 Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination based on disability or reprisal. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In order to establish a prima facie case of discrimination on the basis of reprisal, a complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Whitmire v. Dep’t of the Air Force, Appeal No. 01A00340 (September 25, 2000). As an initial matter, we find that Complainant did not establish a prima facie case of reprisal. His reprisal claim is based on filing FMLA paperwork, which does not constitute protected EEO activity for purposes of a reprisal claim, and Complainant stated that he has no other prior EEO activity. See ROI at 45-46. We find that the Agency established legitimate, nondiscriminatory reasons for its actions in suspending Complainant (claims 1 and 3). The notice of proposed suspension stated that Complainant had behaved inappropriately towards his subordinates by abusing his authority. See ROI at 116-17. The Agency explained that on September 30, 2016, Complainant left the Agency’s facility without authorization prior to the end of his tour of duty, even though a Veterans Affairs Central Office mandate had specifically directed Complainant, as the CFO, to remain at the facility until being released due to the importance of the end of the fiscal year financial closeout. See ROI at 116. Later that day, Complainant responded to a text message from the CA, stating that she and the Assistant CFO would not be in the next day, with a text asking if they were resigning and then, “I’m confused. You both quit and now making allegations while trespassing on federal property? Or is it just you indicting the innocent [assistant CFO]? Sorry Lady. Had to have some priorities. I’m real close if needed!” Id. at 116-117. When he returned to the facility later that day, Complainant threatened to discipline the Assistant CFO for insubordination for not responding to an email sent 20 minutes earlier. See id. at 117. Complainant also told the CA that he was taking away her compressed work schedule. See id. at 117. The notice of proposed suspension found that these comments constituted retaliation for the CA informing the AD that Complainant left the facility without authorization and that the CA felt them to be threatening. See id. Complainant asserted that the Agency’s reasons for his suspension were a pretext for disability discrimination because he left the facility on September 30, 2016 in order to deal with a medical emergency related to his high blood pressure. Moreover, he argues that his text messages to the CA were intended to be humorous. 2020005308 6 Complainant also contended that his comments to the CA were meant to address CA’s insubordination. See ROI at 353. Complainant explained that his ASD makes it difficult for him to navigate social and emotional situations and that punishing him for his ASD is akin to punishing him for his disability. See ROI at 124. We find that the evidence in the record does not establish that the Agency’s reason for the suspension was pretextual. Complainant did not identify any examples of instances where employees who do not have a disability were treated differently for similar conduct. To the extent Complainant argues that he should not be disciplined for leaving the facility without authorization because he left for a medical emergency, we note that Complainant did not notify any of his co-workers at the time that he was leaving for such a reason and his text message on that day only stated that he “[h]ad to have some priorities.” See ROI at 96, 116. The evidence in the record indicates that Complainant only informed the AD that he left the facility for a medical reason during the investigation into Complainant’s inappropriate conduct. See ROI at 61. In addition, Complainant’s contention that disciplining him for an interpersonal miscommunication due to his disability is a form of discrimination is without merit. It is well- settled that the Rehabilitation Act does not preclude an agency from enforcing standards of conduct, as long as such standards are job-related, consistent with business necessity, and enforced uniformly among all employees. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation and Undue Hardship), p. 47; Hunter v. Dep’t of the Air Force, EEOC Petition No. 03980060 (Oct. 8, 1998). Moreover, an agency does not have a duty to excuse an employee’s misconduct as a form of reasonable accommodation for that employee’s disability where such misconduct would result in discipline or discharge if committed by another employee. See Stallworth v. Dep’t of Veterans Affairs, EEOC Appeal No. 01893705 (Jan. 29, 1990) req. for recons. denied, EEOC Request No. 05900416 (August 2, 1990) (complainant was not a qualified individual with a disability because, by assaulting a supervisor, he had engaged in conduct for which the agency customarily terminated employees and the agency was not required to accommodate the complainant by excusing his violent conduct); see also Enforcement Guidance on Reasonable Accommodation and Undue Hardship at Question 36 (“an employer may discipline an employee with a disability for engaging in [] misconduct if it would impose the same discipline on an employee without a disability.”). Complainant did not provide any evidence to support his assertions of pretext. 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). We find that Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reason was a pretext for discriminatory animus. 2020005308 7 Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Complainant contends that he was subjected to a hostile work environment due to his disability. As stated earlier, Complainant did not show that the suspension at issue in claims 1 and 3 was motivated by a protected basis. We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, a federal 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation. Complainant alleges that his May 17, 2017 request for a reasonable accommodation, in the form of a geographic reassignment, was denied. Specifically, Complainant requested to be placed as the assistant director at the Memphis VA Medical Center (VAMC) in order to allow him to have continuous support from his psychiatrist and therapist. See ROI at 135-36. The Agency denied the requested reassignment, finding that the medical documentation did not support it. See ROI at 133. The Agency instead granted Complainant up to 24 hours of leave without pay per pay period, to allow him to receive continuous support from his established behavioral health care team. See id. Thereafter, Complainant requested a hardship transfer to Memphis under the reasonable accommodation program. See ROI at 190-92. On August 2, 2017, Complainant was reassigned to the position of Management and Program Analyst in Memphis at a lower grade level, signing a statement that he voluntarily agreed to the reassignment and the change in grade level. See ROI at 186-89. 2020005308 8 We will assume, for the purposes of analysis only, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. We find that Complainant did not establish that he was denied a reasonable accommodation. The record reflects that Complainant’s medical documentation stated he needed continuous support from his established health care team. See ROI at 130, 135. His doctor explained that the recommended treatment for Complainant’s condition is a 1-hour weekly psychotherapy session. See id. The Agency granted Complainant up to 24 hours of leave without pay per pay period to allow him to travel to Memphis for these weekly sessions. Complainant did not explain how the Agency’s accommodation was ineffective, but rather considered it to be punitive in light of the travel expenses involved. See ROI at 191, 353. To the extent Complainant challenges the August 2, 2017 reassignment to a lower grade level position as a denial of reasonable accommodation, because of the reduction in income and position, the record shows that Complainant voluntarily agreed to the reassignment and associated reduction in grade level. See ROI at 186-87; 353. In addition, the evidence in the record indicates that Complainant was not qualified for the requested position of Assistant Director in the Memphis VA facility at the GS-14 grade level, because the Assistant Director position, although of the same grade level, was of a higher status than his CFO position. See ROI at 196. We note that, in general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. See Donna S. v. Dep’t of Def., EEOC Appeal No 0120160652 (May 16, 2018); see also 29 C.F.R. Part 1630. App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors. If there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. Moreover, while Complainant is entitled to an effective accommodation, he is not entitled to the accommodation of his choice. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). Therefore, we find that Complainant has not established that he was denied a reasonable accommodation in violation of the Rehabilitation Act. 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 finding that Complainant did not establish that he was subjected to discrimination as alleged. 2020005308 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). 2020005308 10 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 January 27, 2022 Date