[Redacted], Harley S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 19, 2021Appeal No. 2020003158 (E.E.O.C. Aug. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harley S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003158 Hearing No. 420-2017-00112X Agency No. 2001-0005-2016102113 DECISION On April 3, 2020, 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 March 23, 2020, final agency decision (final decision) 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 decision. ISSUE PRESENTED The issue presented concerns whether the Agency subjected Complainant to discrimination on the bases of race, disability, age, and reprisal. 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. 2020003158 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist (IT Hardware Specialist), GS-2210-11, at the Tuscaloosa VA Medical Center (Tuscaloosa VA) in Tuscaloosa, Alabama. Complainant joined the Tuscaloosa VA over 19 years ago. In April 2015, Complainant went on leave due to lower back pain associated with degeneration of his lumbar spine. He subsequently filed a request for reasonable accommodation on June 29, 2015, but withdrew the request on September 23, 2015, as he had decided to apply for disability retirement. Report of Investigation (ROI) at 346, 637 and 644. Complainant eventually exhausted both his sick leave balance and medical leave balance under Family Medical Leave Act (FMLA), and beginning in January 2016, the Agency charged him with being absent without leave (AWOL). The Office of Personnel Management (OPM) ultimately denied Complainant’s request for disability retirement on or about March 25, 2016. Complainant never returned to work despite being issued two return to duty letters, as Complainant’s medical providers always assessed him as disabled and recommended that he never return to work. Id. at 170, 209, 212. He remained AWOL until the effective date of his removal on March 20, 2017. See Removal Letter dated March 3, 2017 (charging Complainant with medical inability to perform position duties since April 2015). Prior to his removal, Complainant filed a formal EEO complaint on May 4, 2016, alleging that the Agency discriminated against him on the bases of race (Black), disability (physical/degenerative lumbar spine), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, and Section 501 of the Rehabilitation Act of 1973 when:2 1. Since January 15, 2016 to present, Complainant’s second level supervisor (S2, White/male/over 40)3 charged Complainant with being absent without leave; 2. On February 9, 2016, Complainant requested to be placed in a non-pay status from January 14, 2016, pending approval of his medical disability, with no response from S2; 2 Complainant’s also alleged that the Agency violated the Genetic Information Nondiscrimination Act (GINA) of 2008; however, he subsequently withdrew that allegation during the initial conference. As such, we will not discuss Complainant’s GINA allegation, infra. We will also not discuss Complainant’s allegations concerning the manner in which the Office of Personnel Management processed his disability retirement application, as we find that the Agency properly dismissed this claim as falling outside the purview of the EEO process. We note that Complainant did not raise this claim on appeal. 3 S2 worked as a supervisor in Office of Information and Technology (OIT). 2020003158 3 3. On March 1, 2016, Complainant was denied leave without pay (LWOP) from January 14, 2016 through January 2017; and 4. On March 24, 2016, Complainant’s first level supervisor (S1, Black/male/over age 40)4 issued him a return to duty letter. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing; however, on October 28, 2018, the assigned AJ dismissed Complainant’s hearing request. Consequently, the AJ remanded the complaint to the Agency for the issuance of a decision without a hearing. On March 23, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which found that Complainant failed to prove his allegations of discrimination. In finding no discrimination, the Agency found that management had legitimate, nondiscriminatory reasons for taking the alleged actions, namely that management had concerns over Complainant’s extended failure to return to work. While the Agency considered Complainant’s contention that the Agency took the alleged actions because of his protected characteristics, the Agency ultimately found his offer of pretext to be insufficient to rebut management’s articulated reasons. For these reasons, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of his appeal.5 The Agency opposes the appeal and requests that the Commission affirm its final decision. 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). 4 S1 was the Chief Information Officer for the facility. 5 Complainant uploaded and marked “Scan0016” as “Statements/Briefs Complainant.” Having reviewed this file, we note that Scan0016 contains the March 24, 2016, return to duty letter. We note that Complainant did not raise the AJ’s dismissal of the hearing on appeal and, therefore, we shall not review it. 2020003158 4 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”). ANALYSIS AND FINDINGS As the record shows that Complainant withdrew his reasonable accommodation request, we shall only consider whether the Agency subjected Complainant to disparate treatment discrimination. In this regard, Complainant contends that the Agency subjected him to four separate incidents of discrimination as listed above. For Complainant to prevail on his claims of disparate treatment discrimination, he 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 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, concerning Complainant’s allegation that S2 discriminatorily charged him with being AWOL, S2 explained that he took the alleged action because Complainant failed to submit his leave requests in accordance with the facility’s established leave procedures. In this regard, S2 identified two instances when Complainant failed to follow proper leave procedures. S2 maintained that the first instance occurred when Complainant failed to return to work after exhausting FMLA and did not notify management. With regard to the second instance, S2 stated that Complainant, after exhausting his FMLA, tried to invoke FMLA again despite not qualifying for FMLA. S2 emphasized that he consulted with human resources prior to charging Complainant with AWOL, and that he did not consider Complainant’s protected classes in deciding to charge Complainant. 2020003158 5 For claim 2, concerning management’s alleged failure to respond to Complainant’s request to be placed in non-pay status, S2 explained that when Complainant tried to invoke FMLA, he responded to Complainant’s request and informed Complainant that Complainant was not eligible to invoke FMLA. S1 confirmed S2’s account and emphasized that S2 did in fact respond to Complainant’s request and provided the reason for denying the request, i.e., Complainant had exhausted his FMLA leave balance. As for claim 3, regarding the March 1, 2016, denial of Complainant’s request for leave without pay from January 14, 2016 through January 2017, S2 explained that he decided not to grant Complainant leave without pay because Complainant’s single sentence request lacked specificity and conflicted with prior documentation. S2 stated that when he requested additional information from Complainant, Complainant did not provide it until April 5, 2016. S1 noted that S2 had concerns with the open-ended nature of the request. With regard to claim 4, concerning S1’s decision to issue a return to duty letter on March 24, 2016, S1 clarified that he issued Complainant two return to duty letters on February 23, 2016 and April 24, 2016.6 In this regard, S1 explained that he issued the first return to duty letter to Complainant because Complainant had been AWOL for an extended period. S2 maintained that he issued Complainant the second letter because Complainant failed to respond to the first letter. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext for claim 1, Complainant explained that when he failed to return to work after his FMLA ran out, management sent him a text message charging him with being AWOL. Complainant maintained that this was an attempt by management to impede his ability to retire medically so that he could be removed from federal service rather than be allowed to retire. Complainant contended that management should have not charged him as AWOL because his inability to return to work was related to his disability. 6 We note that S1 issued Complainant the second return to duty letter of March 24, 2016, not April 24, 2016. ROI at 272. 2020003158 6 For claim 2, Complainant stated that, on February 9, 2016, he requested to be placed in a non- pay status pending OPM’s review of his request for disability retirement. Complainant maintained that S2 failed to respond to his request and ultimately denied his request. With regard to claim 3, Complainant asserted that management should have placed him on leave without pay from January 14, 2016 through January 2017, because management allegedly allowed everyone to go on leave without pay. Complainant, however, did not identify any similarly situated comparator who was allowed to go on leave without pay for extended periods of time. As for claim 4, Complainant maintained that S1, in issuing him a return to duty letter on March 24, 2016, failed to provide him with justification for demanding his return and did not cite to any policy, procedure, or regulatory guidelines for doing so. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Having reviewed the record, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination as alleged, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are unpersuaded by Complainant’s offers of pretext, as we find management’s actions in claim 1 to 4 to be well within the bounds of managerial discretion. We also find no evidence, comparative or otherwise, that the alleged actions were taken for any reason other than management’s legitimate concern over Complainant’s nearly two-year absence from work. For these reasons, we conclude that Complainant cannot prevail on claims 1 to 4. To the extent Complainant believes that the underlying actions in claims 1 to 4 amounted to harassment, we find that a finding of harassment is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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 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 2020003158 7 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, 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. 2020003158 8 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 August 19, 2021 Date Copy with citationCopy as parenthetical citation