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

Equal Employment Opportunity Commission

Apr 6, 2022

Appeal No. 2021000266 (E.E.O.C. Apr. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeffry R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000266 Hearing Nos. 520-2018-00310X and 520-2017-00242X Agency Nos. 200H-X002-2016100706 and 200H-X002-2017104653 DECISION On October 14, 2020, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 5, 2020, final order concerning two equal employment opportunity (EEO) complaints 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. BACKGROUND During the period at issue, Complainant worked as Attorney-Advisor, Grade GS-14, at the Agency’s Office of General Counsel (OGC), in Brooklyn, New York. Initially, Complainant had been assigned to OGC Region 2. Complainant’s supervisor had been the Region 2 Counsel. In April 2015, Complainant was in an accident while travelling off-duty and sustained an injury requiring partial amputation of one leg. Thereafter, Complainant wore a prosthetic and used a cane, walker or wheelchair for ambulation. Following an OGC reorganization, the Region 2 Counsel became the Chief Counsel for the North Atlantic District. 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. 2 2021000265 and 2021000266 In October 2015, when Complainant returned from extended absence because of the accident, he was reassigned to the Collections National Practice Group (CNPG). Complainant’s first-line supervisor was the CNPG Deputy Counsel. Complainant’s second-line supervisor was the CNPG Chief Counsel. On Feb 2, 2016, Complainant filed the first captioned formal EEO complaint, identified as Agency Case No. 200H-X002-2016100706, EEOC Hearing No. 520-2017-00242X, alleging that the Agency discriminated against him based on disability (amputation of his lower right leg) and age (65) when: A) On October 1, 2015, Chief Counsel for the North Atlantic District directed that Complainant be reassigned to the National Collections Team without the Complainant's knowledge or consent; and B) On March 10, 2016, Complainant learned that Chief Counsel for the North Atlantic District hired another attorney into a “hospital commitments position” without advertising or posting the position, thereby denying Complainant the opportunity to apply, as Chief Counsel for the North Atlantic District previously told Complainant that he would be allowed to do. On October 13, 2017, Complainant filed a second formal EEO complaint, identified as Agency Case No. 200H-X002-2017104653, EEOC Hearing No. 520-2018-00310X. Therein, Complainant claimed that the Agency discriminated against him based on disability (amputation of his lower right leg) and age (65) and in reprisal for prior EEO-protected activity when: 1. On December 15, 2016, CNPG Deputy Counsel directed Complainant to update approximately 130 cases by January 3, 2017; 2. On May 25, 2017, CNPG Deputy Counsel told Complainant he was being assigned all Reimbursable Health Insurance Payer Agreements; 3. On June 7, 2017, CNPG Deputy Counsel Directed Complainant to either close out, or provide an update of, 33 North Atlantic District cases that he was not assigned to and was given five days to complete the task. When Complainant requested an extension, CNPG Chief Counsel denied the request; 4. On July 5, 2017, CNPG Deputy Counsel issued Complainant a Written Reprimand for failing to complete an assigned work task; 5. On October 10, 2017, CNPG Chief Counsel directed that Complainant had to request advance authorization before working more than one hour before or after his tour of duty (Monday-Friday, 9:30 a.m.- 6:00 p.m.), on weekends, while on leave, and/or on holidays; 3 2021000265 and 2021000266 6. On December 7, 2017, CNPG Deputy Counsel, with CNPG Chief Counsel concurrence, issued Complainant a Performance Appraisal rating of “Unacceptable”, which was lower than Complainant believed he deserved; and 7. On December 8, 2017, OGC’s Deputy General Counsel denied Complainant’s administrative grievance regarding a Written Reprimand issued on July 5, 2017. After investigations, the Agency provided Complainant with copies of the reports of investigation and notice of the right to request a hearing before an EEOC AJ Administrative Judge (AJ). Complainant timely requested a hearing. The AJ decided to consolidate the two complaints for processing. Over Complainant’s objections, the AJ granted the Agency’s July 17, 2019 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 30, 2020. On October 5, 2020, the Agency issued a final order adopting the AJ’s decision, finding no discrimination or unlawful retaliation. The instant appeal followed. On appeal and through legal counsel, Complainant argues that the AJ’s decision failed to ascertain that Complainant was the only Attorney-Advisor who OGC management involuntarily reassigned, overburdened, prevented from working additional hours, given a downgrade performance rating, disciplined and ultimately removed. Complainant argues that the Chief Counsel for the North Atlantic District was obsessed with reassigning Complainant to CNPG upon the false belief that Complainant’s disability prevented him from representing the Agency in court. Complainant’s counsel asserts the AJ failed to consider testimony of Complainant’s colleagues who also questioned the Agency’s motives for reassigning Complainant. Meanwhile, Complainant asserted that the CNPG Chief Counsel and CNPG Deputy Counsel retaliated against him by giving him an impossible workload and also contriving conduct and performance problems. Counsel for Complainant argued that the temporal proximity between CNPG managers learning of Complainant’s EEO activity and their adverse actions supports Complainant’s reprisal claim. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. See Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. 4 2021000265 and 2021000266 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. As an initial matter, we observed that Complainant did not request a reduced workload or any other type of reasonable accommodation for his disability. This Commission reviews claims of disparate treatment under the three-party analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, that a prohibited considerations such as his age, his disability, or his EEO-protected activity factored in the Agency’s decisions regarding adverse employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). For purposes of this analysis only and without so finding, we have presumed, that Complainant satisfied the prima facie case for all claims and on all bases. Nevertheless, undisputed facts support the AJ’s determinations that Agency management witnesses articulated legitimate, non- discriminatory reasons for the actions that Complainant has claimed to be discriminatory. Regarding Claim A and Claim B, the Agency witnesses explained that the OGC reorganization had been planned prior to Complainant’s disability. The reorganization was directed by OGC leadership above the management in the Brooklyn office, for purposes of efficiency. The record disclosed that Complainant was not the only attorney reassigned because of the reorganization. The Agency maintained that Complainant had been selected for the CNPG because he had years of experience in handling collections, which was the CNPG’s primary mission. The Chief Counsel for the North Atlantic District stated that Complainant had performed well on the cases that were handled by the CNPG as opposed to tort or personnel cases. The Agency denied that Complainant’s prior position in the North Atlantic District was filled with a younger and inexperienced attorney. Instead, the Agency asserted that the younger attorney had been hired into a new, temporary position dedicated to hospital commitments. Shortly before the North Atlantic District hospital commitment attorney term expired, the position was converted to a permanent one. 5 2021000265 and 2021000266 Although Complainant had experience in hospital commitments, nothing in the record supports Complainant’s position that he was promised an opportunity to apply for the temporary attorney position working on hospital commitments. Regarding Claims 1 through Claim 7, the Agency relied on its system for tracking OGC cases called “GCLAWS.” GCLAWS monitored how many cases each attorney was assigned and how long each attorney took to work on each case until it was completed. Regarding Claim 1, the Agency stated that as a result of the reorganization, Complainant merely had to transfer the 130 cases from the legacy GCLAWS to the post-reorganization GCLAWS for the CNPG. In other words, Complainant was expected to perform 130 simple administrative tasks that were neither excessive nor abusive. Regarding Claim 2, CNPG Deputy Counsel testified that Complainant had experience with Reimbursable Health Insurance Payer Agreements. Indeed, when discussing the assignment of those cases to Complainant, Complainant had told her that such cases would not be a problem. GCLAWS showed that Complainant did not do any work on those cases for over a year so the Reimbursable Health Insurance Payer Agreements were later reassigned to two other CNPG attorneys. Regarding Claim 3, GCLAWS showed that Complainant had simply to close-out 32 old cases that had been assigned to him before he was moved to the CNPG. The stated that Complainant simply had to mark on a spreadsheet whether the 32 old cases should “Remain Open” or “Be Closed.” Because Complainant did not have to perform an in-depth review of the cases, the Agency reasoned that a Complainant did not need an extension after he had already failed to complete this by the original deadline. Regarding the written reprimand in Claim 4, on April 27, 2017, CNPG Deputy Counsel had directed Complainant to draft a letter to the Chief Judge of the New Jersey’s Workers’ Compensation Commission requesting permission for OGC attorneys to represent the Agency, although not licensed in that state. Complainant had received an extended deadline of May 22, 2017. Apparently, Complainant failed to deliver the draft letter until late June 2017. Regarding Claim 5, Complainant requested permission to work beyond his regular duty hours to complete the tasks assigned to him. CNPG Chief Counsel authorized Complainant to work an extra hour beyond his tour of duty. However, Complainant had to receive permission from the CNPG Deputy Counsel to work beyond the extra hour. GCLAWS supported the Agency’s decision to scrutinize Complainant’s time management because it showed that Complainant had actually worked only 997 hours out of 2,080 possible available work hours over the preceding fiscal year. Regarding Claim 6, Complainant was rated “unacceptable” as opposed to “fully successful” because his performance was found deficient in critical elements of timeliness and professional responsibility. 6 2021000265 and 2021000266 The Agency explained that all CNPG attorneys had a metric to complete their legal work involving Service Level Agreements, within seven days. Complainant failed to do so more than thirty times during the rating period. In terms of professionalism, Complainant had provided the wrong date for another attorney to appear on behalf of the Agency. CNPG Deputy Counsel stated that she expected all attorneys to report such errors to her immediately. Complainant did not do so. Instead, CNPG Deputy Counsel only learned about Complainant’s error from the other attorney’s supervisor two days after the fact. Regarding Claim 7, the OGC Deputy Counsel’s decision to deny Complainant’s administrative grievance was legitimately based on Complainant’s failure to effectively communicate with his supervision about difficulties managing his CNPG workload despite more than twenty years of Agency experience. While the Agency has presented non-discriminatory reasons for the matters at issue, Complainant has failed show with preponderant evidence that any of the Agency’s stated justifications for its actions are somehow pretextual, irregular, or unworthy of credence. Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). In sum, we concur with the AJ’s findings that Complainant has failed to prove discriminatory animus towards his disability or age, or unlawful retaliation as a motive for the disputed actions. Finally, those matters that Complainant alleged as harassment were instead routine work assignments, every-day instructions, and supervisory admonishments that were neither severe nor pervasive enough qualify as abusive conduct that fosters an illicitly hostile work environment. Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). 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 order, implementing the AJ’s summary judgment finding no discrimination. 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. 7 2021000265 and 2021000266 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. 8 2021000265 and 2021000266 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 April 6, 2022 Date