[Redacted], Herman F., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 14, 2021

Appeal No. 2021000246 (E.E.O.C. Apr. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aldo B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002648 Agency No. 200P-0653-2018105655 DECISION On March 5, 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 February 11, 2020, final decision 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. 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 based on disability, age, and reprisal when he was assigned additional duties. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Healthcare Education Specialist, GS-1701-12, in the Medical Education Program of the Roseburg VA Healthcare System in Roseburg, Oregon. 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. 2020002648 2 He had previously worked as a Health Systems Specialist; however, he was reassigned to his current position as a result of a September 2016, global settlement agreement that resolved his EEO complaint, alleging discrimination based, in part, on the alleged failure of the Agency to provide him with reasonable accommodation for his disabilities (i.e., essential tremors of the head, neck, and hands, and cervical dystonia) . See Report of Investigation (ROI) at 45, 205 and 339-42. Complainant stated that the reassignment was effective in meeting his needs, and that while his new supervisor in Medical Education Program encouraged him to telework three days per week as a reasonable accommodation, he declined the offer and requested the opportunity to telework “in the same manner it is offered and provided to other non-disabled employees.” ROI at 47-48. In his role as a Healthcare Education Specialist, Complainant was responsible “for a broad range of activities related to the institutional objectives of medical education.” Id. at 254. Approximately two years following Complainant’s reassignment, the Roseburg VA Healthcare System gained a new interim Medical Center Director in early 2018. This individual was Complainant’s third level supervisor (S3). While touring the campus, S3 observed that the housing quarters of the Roseburg VA Healthcare System were not being used and were vacant. ROI at 66-67. When S3 learned that the Roseburg VA Healthcare System had a problem attracting medical students due to the lack of affordable, short term housing, S3 decided to refurbish the housing quarters and offer them to medical students. Id. As Complainant and S1 (a physician) were the only two employees in Medical Education Program at the time, S3 made the decision to expand Complainant’s duties to include overseeing the management of the housing quarters for medical students. Id. S3 communicated this decision to Complainant via email on June 21, 2018. Complainant accepted the assignment; however, he asked S3 to hire an administrative support employee to assist the Medical Education Program in accordance with a promise allegedly made to him by the prior Chief of Staff in 2016. Id. at 205. S3 declined to hire an administrative support employee because the Roseburg VA Healthcare System would be “unable to support additional staffing for Medical Education.” Id. at 206. On July 21, 2018, the month after Complainant received his new assignment, Complainant allegedly learned from one of the foremen in Facilities Management Services (FMS) that the Facilities Management Chief wanted him to issue keys to maintenance and facilities staff whenever they needed access to the housing quarters for liability purposes. ROI at 52. Complainant vehemently objected to this assignment because the responsibility for maintaining the keys had historically been with FMS. Id. at 53-54. Furthermore, Complainant had concerns about providing keys to individuals who were not under his supervision. Id. Complainant stated that he forwarded his concerns to his supervisor, S1, who agreed that FMS should be the ones issuing keys for their own staff. Id. Ultimately, S3 decided that the issuance of keys to FMS employees and contractors was within the scope of Complainant’s duties. Id. at 226. Though Complainant did not seek a reasonable accommodation of any kind, the Agency subsequently transferred an employee to the Medical Education Program in August/September 2018, to assist Complainant with issuing keys. Id. at 55. However, Complainant was still responsible for issuing keys to FMS when the administrative support employee was not available. Id. 2020002648 3 On November 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical), age (over 40), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 when: 1. On July 21, 2018, he was assigned additional duties; and 2. On November 9, 2018, during a medical meeting, S3 agreed to create an addendum to the previous settlement. The Agency subsequently informed Complainant that it would only accept claim 1 for investigation. In dismissing claim 2 for failure to state a claim, the Agency reasoned that such allegations were not actionable in light of Commission precedent holding that comments and actions made during mediation cannot form the basis of a claim. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision reaffirmed the Agency’s prior dismissal of claim 2 and concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged in claim 1. In finding no discrimination on claim 1, the Agency initially determined that management had effectively accommodated Complainant by hiring an administrative support employee to assist him. While the Agency acknowledged that Complainant had concerns regarding the number of times he had to issue keys to FMS employees, the Agency noted that Complainant never notified management of this limitation or requested a reasonable accommodation. The Agency emphasized that had Complainant done so, the ensueing interactive process may have resulted in a suitable accommodation to reduce the frequency of his key issuance duties. The Agency also analyze claim 1 under the legal standard for disparate treatment. Having reviewed the record, the Agency found that Complainant could not persuasively rebut the legitimate, nondiscriminatory reasons that management had articulated for assigning him additional duties. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the “genesis of the unlawful discrimination” began when the previous Chief of Staff offered him a GS-12, Health Systems Specialist (Executive Assistant) position in the Executive Office to advise the then Medical Center Director on how to run the Roseburg VA Healthcare System. Complainant states that he accepted the offer because he no longer had any aspirations to run the hospital system as a senior executive; however, several executive officers and staff viewed his appointment as a threat to their own aspirations, and they began attacking him in order to isolate and undermine the Medical Center Director. Complainant explains that when he filed his first EEO complaint in 2016, he was able to negotiate a reassignment to “a role less threatening to his oppressors in the Executive Office.” 2020002648 4 Complainant maintains that following his negotiated reassignment to his current position, the discrimination and harassment abated until 2018, when he was assigned “secretarial duties” as a housing/key manager that were not part of his position description. Complainant further asserts that the discrimination also included delays in approving his leave requests, as well as the denial of his subsequent request for full time telework. He claims that he did not request telework as a reasonable accommodation because when he filed a reasonable accommodation request in 2016, he was threatened with removal. Complainant emphasizes that this is the reason why he is pursuing relief through the EEO complaint process, rather than the reasonable accommodation process.2 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). 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 Preliminary Matters As an initial matter, we shall affirm the Agency’s dismissal of claim 2, as we have long held that issues arising from mediation cannot the form the basis of an EEO claim. See, e.g., Oliver v. U.S. Postal Serv., EEOC Appeal No. 01A14752 (Oct. 3, 2001) (dismissing complaint containing claims arising out of mediation negotiations between the parties); and Nelson v. Dep’t of Def., EEOC Appeal No. 01A13907 (Sept. 25, 2001) (noting that “comments and actions made during a mediation session [are] akin to actions during a settlement negotiation, which we have held fail to state a claim”). 2 Following the submission of his appellate brief, Complainant submitted another statement in support of his appeal on March 31, 2020, wherein he argued that management’s subsequent directive for him to manage non-student housing will significantly jeopardize his ability to accomplish his primary duties. While we certainly understand Complainant’s concern, we note that the Commission does not generally allow parties to submit multiple briefs. See Joellyn L. v. Dep’t of Justice, EEOC Appeal No 0120170274 (Apr. 5, 2019), citing 29 C.F.R. § 1614.403(d). For this reason, we decline to consider Complainant’s statement dated March 31, 2020. 2020002648 5 We also decline to consider Complainant’s allegations regarding his leave and telework requests due to Complainant’s failure to raise these claims with the Agency. See Tiffanie S. v. Dep’t of the Air Force, EEOC Appeal No. 2020000381 (Apr. 12, 2021) (holding that a complainant may not raise new claims for the first time on appeal). Reasonable Accommodation We turn now to the merits of claim 1. Here, Complainant alleged that the Agency subjected him to discrimination when on July 21, 2018, he was assigned additional duties. Though Complainant has not characterized this claim as a denial of reasonable accommodation claim, we agree with the Agency that the claim can be reasonably viewed as a denial of reasonable accommodation claim based on the issuance of additional duties that rendered the original accommodation ineffective. Under our regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to provide 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 and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). We have long held that “[i]f a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.” In the absence of an alternative accommodation, “the employer must attempt to reassign the employee to a vacant position for which s/he is qualified, unless to do so would cause an undue hardship.” Enforcement Guidance on Reasonable Accommodation at Q. 32. For the purposes of our analysis, we shall assume arguendo that Complainant is a qualified individual with a disability. Here, our review of the record shows that Complainant initially filed a denial of reasonable accommodation claim in 2016, which management resolved by granting his request for reassignment as part of a negotiated global settlement. The record further shows that Complainant found the reassignment to be effective in addressing his needs, and he had no problems performing his duties as a Healthcare Education Specialist; however, Complainant subsequently encountered additional challenges when in July 2018, he was directed to issue keys to FMS staff, as the unscheduled nature of the role caused him stress, which in turn, exacerbated his medical conditions. 2020002648 6 While we are certainly mindful of his new limitations, we note that he never informed management that the unscheduled nature of his new role exacerbated his medical conditions. By his own admission, Complainant’s opposition to his new role was based on his personal policy disagreement that housing quarters management duties belonged with FMS, rather than his program. ROI at 54-55. We note that S3 had no knowledge of Complainant’s limitations, as he was not involved in Complainant’s prior EEO complaint, and Complainant did not tell him that he needed reasonable accommodation.3 Because Complainant did not put management on notice that the original accommodation was no longer effective, we find that Agency was under no obligation to provide him with additional accommodations to address limitations that the Agency never knew he had (i.e., his inability to handle unscheduled tasks). Therefore, his denial of reasonable accommodation claim must fail. Disparate Treatment We will also analyze claim 1 under the legal standard for disparate treatment. To prevail, 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 Constr. 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. Aff. 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); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant has established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for assigning him additional duties. As discussed, S3 made the decision to refurbish the housing quarters in order to attract medical students to the Roseburg VA Healthcare System. Following the refurbishment, S3 determined that management of the housing quarters for medical students should be under the purview of the Medical Education Program, as that office was responsible for coordinating the education of medical students. As Complainant and his supervisor (a physician) were the only two employees in the Medical Education Program, S3 decided to assign housing management duties to Complainant. Complainant accepted the assignment but objected to having to issue keys to FMS staff. 3 In so finding, we note that Complainant sent an email to S3 on June 21, 2018, wherein he informed S3 that he had transferred to his current position pursuant to global settlement agreement. ROI at 2015. However, we note that Complainant’s email did not contain any mention of his disabilities and/or limitations that would have put S3 on notice of Complainant’s need for additional accommodations. Id. 2020002648 7 In arguing pretext, Complainant believed that he should not have been assigned the role because his position description did not expressly include an “Other Duties as Assigned” clause that would have allowed management to assign him housing/key manager duties. Further, Complainant asserted that the housing/key manager duties should have remained with FMS, as it always has been. Complainant reasoned that he was given additional duties because the Executive Assistant to S3 was good friends with the previous employee (C1) who performed these duties. As that employee no longer wanted to perform the additional duties, the Executive Assistant allegedly pressured S3 to shift the additional duties to Complainant. ROI at 56. Complainant contended that management was too smart to make comments about his age. He denied that the alleged actions were taken because of his disability or in reprisal for prior protected EEO activity. On appeal, Complainant largely reiterates these contentions on appeal and recounts the “genesis of the unlawful discrimination.” Having reviewed the record, we find no evidence that Complainant was subjected to discrimination on any basis. While we considered Complainant’s belief that the alleged actions were originally based, in part, on jealously towards his appointment to the Executive Office, we find such contention to be wholly speculative. We discern no persuasive evidence that the alleged actions were causally related to his protected characteristics. To the extent that Complainant believes that it was unlawful for management to assign him additional duties because his position description did not include an “Other Duties as Assigned” clause, we find that contention to be unpersuasive as Complainant has not shown that management assigned him other duties because of his protected characteristics. Moreover, we note that Complainant’s position description as Healthcare Education Specialist required him to perform “a broad range of activities related to the institutional objectives of medical education,” which could conceivable include matters related to housing of medical students. As for Complainant’s comparator, C1, we note that anti-discrimination statutes do not prohibit employment decisions based on friendship and/or favoritism. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120132858 (Mar. 9, 2015); and Davis v. U.S. Postal Serv., EEOC Appeal No. 0120120097 (Jan. 31, 2013). Lastly, while we have serious concerns regarding Complainant’s allegation that management threatened him with removal for filing a reasonable accommodation request, we find no evidence to corroborate that allegation, and we note that Complainant did not make the allegation during the EEO investigation. We ultimately conclude that Complainant cannot persuasively show that he was subjected to disparate treatment discrimination on any basis. Given our finding that the underlying allegation in claim 1 was not discriminatory, we need not consider whether the alleged actions amounted to a hostile work environment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Based on the foregoing, we conclude that Complainant cannot prevail on his complaint. 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. 2020002648 8 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). 2020002648 9 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 August 9, 2021 Date