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

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2019003562 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michael G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003562 Agency No. 2003-0502-2017103581 DECISION On May 24, 2019, 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 May 24, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clinical Psychologist, GS-13, in the Mental Health/Psychology Service at the Agency’s Alexandria VA Medical Center in Alexandria, Louisiana. On October 13, 2017 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (Attention Deficiency Hyperactive Disorder (ADHD), dyslexia, hypertension, and anxiety) and in reprisal for prior protected EEO activity when: 1. in March 2014, the Administrator Officer instructed Complainant to backdate his Focus Professional Practice Evaluation (FPPE); 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. 2019003562 2 2. in March 2014, Complainant’s second-line supervisor (S2) referred to Complainant as schizophrenic, incompetent, and negligent; 3. on April 19, 2016, S1 verbally counseled Complainant; 4. on April 28, 2016, a coworker (CW1) told Complainant that S2 would go after him and referenced his FPPE; 5. on June 1, 2016, S1 issued Complainant a letter of counseling; 6. on June 3, 2016, S1 denied Complainant the opportunity to respond to the letter of counseling; 7. on June 3, 2016, S2 informed Complainant that she recommended he be subjected to a FPPE; 8. on June 6, 2016, S1 told Complainant she was pleased he had been keeping up with his documentation; 9. on June 19, and August 25, 2016, S1 and S2 assigned Complainant an excessive workload and subjected him to high levels of scrutiny; 10. on June 23, 2016, S1 and S2 failed to provide Complainant feedback to his response to his written counseling and placed him on a FPPE; 11. on February 13, 2017, S1 and S2 failed to act when Complainant received an email accusing him of hiring a veteran to murder individuals; 12. on April 6, 2017, S1 and S2 questioned Complainant’s whereabouts on February 3, 2017, and instructed him to provide a statement; 13. on or about April 14, 2017, S1 called Complainant while he was on leave to discuss workload and his health stressors; 14. on April 18, 2017, S1 informed Complainant she was reviewing his clinics, was looking for ways to help him, saw some concerning patterns, and that a supervisory inquiry would be initiated; 15. on or about April 20, 2017, S1 told Complainant there were concerns about his competency and behavioral issues for which he was not accepting responsibility; 16. on April 26, 2017, S1 and S2 assigned Complainant an excessive workload and subjected him to high levels of scrutiny; 17. on or about May 9, 2017, S2 told Complainant he needed to choose between his health and his job; 18. on August 8, 2017, S2 issued Complainant a letter of reprimand; and 19. on December 14, 2017, S2 issued Complainant a notice of proposed removal.2 Complainant claimed that his supervisors were aware that he experienced complications from hypertension and anxiety, but that he never discussed any other conditions with them. 2 The Agency dismissed Claim (5) as a discrete act finding that Complainant failed to timely raise the matter before an EEO Counselor. The Commission can find no basis to disturb the Agency’s dismissal of this claim as a discrete act; however, we will consider it as background evidence in support of Complainant’s overall hostile work environment claim. 2019003562 3 S2 also denied being aware of Complainant’s prior EEO activity, but S2 testified that Complainant was a witness in a court case but is unaware what the case entailed. S1 also acknowledged Complainant was a witness in a court case. S2 acknowledged Complainant had a medical condition but said she did not know what it was other than high blood pressure. Further, Complainant never requested a reasonable accommodation, but management officials informed him on several occasions of how he could request one if one was needed. In Claim (1), Complainant alleged that his supervisors did not provide him with performance standards until three months after he began working for the Agency. At that point, the Administrative Officer asked him to backdate his performance standards. The Administrative Officer denied this allegation. In Claim (2), Complainant alleged that S2 was trying to give him feedback on his FPPE. Complainant claimed that S2 became frustrated, ripped notes out of her notebook, and gave them to Complainant. Complainant asserted that these notes said “schizophrenic,” “negligent,” and “incompetent.” The record contains a photocopy of handwritten notes which include the words “negligent” and “incompetent,” but not “schizophrenic.” S2 denied making these comments. Regarding Claim (3), Complainant said that S1 told him to increase his productivity. Complainant believed he was reprimanded after complaining that his supervisors’ concerns about his productivity did not factor in his extended Family Medical Leave Act (FMLA) leave he took as the result of the birth of his child. The written counseling also explained that Complainant submitted notes on his patients late, and in some cases did not submit notes at all. Complainant objected because CW1 was suspended at the time, which meant Complainant had to take on CW1’s workload. S1 testified that she asked Complainant to keep up with his documentation and put together a plan so that he could keep up. S1 also said she was willing to help Complainant if he was having difficulty. According to Complainant, in Claim (4), CW1 told Complainant that, as a result of Complainant’s testimony in CW1’s case, S2 was going to go after Complainant by putting him on a FPPE. In Claims (5) through (10), according to Complainant, S1 issued him a written counseling for submitting late notes, or not submitting notes at all, concerning his patients and failed to provide Complainant with sufficient time to respond. After Complainant submitted his response, S2 did not reply, but rather placed Complainant on a FPPE. Complainant believed he should have been given administrative time to respond and should have been afforded a reply. Complainant also objects to being placed on the FPPE because he believed he was shouldering an excessive workload. Specifically, after CW1 returned from suspension, CW1 still did not see patients. Rather, Complainant needed to maintain CW1’s workload. The June 1, 2016, letter of counseling explained that 14 charts had missing documentation, and one chart flagged as a high risk for suicide was a no-show, but Complainant did not document any no-show calls. 2019003562 4 S2 explained that S1 had looked over 15 patient records and noticed that Complainant was not documenting his interactions with the patients. S2 noted Complainant’s reply but said that the records were clear, “he just didn’t document.” Therefore, S1 and S2 initiated the FPPE and thereafter noticed that Complainant demonstrated improvement. S1 corroborated S2’s explanation and explained that she followed up with Complainant after his initial verbal counseling and found out that he had even more missing information in his records. S1 noted that Complainant had over two weeks to respond to the written counseling. S1 denied that management failed to respond to Complainant’s response to the written counseling. Rather, S1’s response was to recommend a FPPE to monitor Complainant’s ability to document his patient interactions. S1 further denied subjecting Complainant to an excessive workload. Rather, Complainant was expected to perform the duties of a psychologist, which included covering another psychologist’s patients from time to time. S1 maintained this was not unusual. However, with respect to CW1’s patients, S1 noted that management canceled CW1’s appointments when he was not there. In Claim (11), Complainant explained that he took a patient to court on August 24, 2016. Within a day or two, he was contacted by the Agency’s Office of Inspector General (OIG) about an allegation by the veteran that Complainant tried to hire the veteran to murder other people. Complainant denied the allegation and said it was a miscommunication. S2 agreed that the incident was a miscommunication. According to S2, the patient complained to the Patient Advocate. When the Agency followed up with the patient, the patient said he was referring to CW1 instead. Therefore, the Agency determined that the allegation against Complainant was unsubstantiated, and informed Complainant of the result. S1 also agreed that it was a miscommunication and further added that Complainant had no problems with the patient and agreed to resume care of the patient. S1 believed the matter was resolved and documented satisfactorily. Complainant asserted that he was being accused of not being at work in Claim (12), and that S1 and S2 required him to provide a statement verifying he was at work. Complainant objected to this requirement because “it was already known where I was.” S2 explained that the Agency received a report saying that Complainant attended a meeting at a truck stop during duty hours. As a result, the Agency’s investigator required S2 to obtain a statement from Complainant. After Complainant affirmed he was at work, the matter was closed. S1 added that their efforts were intended to “exonerate [Complainant] from being implicated in this situation in any way, because he wasn’t involved.” In Claim (13), Complainant was absent from work on FMLA leave when S1 called him. Complainant said he explained that he was overwhelmed by the workload and asked for help. After Complainant returned from FMLA leave, in Claims (14) and (15), S1 said a supervisory inquiry would be initiated into Complainant’s work. Complainant again objects that he had been carrying an increased workload, which he raises in Claim (16). 2019003562 5 The record contains a copy of the June 2, 2017, memorandum in which S1 documented her supervisory inquiry. According to the memorandum, S1 reviewed 100 percent of Complainant’s appointments and noted that documentation was late on several occasions, despite Complainant having 30 minutes more for consults than other providers. In some cases, patient care was delayed due to delayed assessments and diagnosis, and Complainant excessively rescheduled lengthy assessment appointments. In other cases, patient care was delayed due to a failure to complete assessments. S1 noted Complainant’s concern that he was struggling with stress and encouraged him to contact the Employee Assistance Program or to seek a reasonable accommodation. The memorandum recommended disciplinary action, and on August 8, 2017, Complainant received the written reprimand in Claim (18). S1 said that she called Complainant because he needed to enter his leave requests. When Complainant said he was struggling, S1 asked Complainant to identify anything she could do that would help. S2 maintained that the discipline Complainant received was because he failed to document his meetings with patients. S1 reviewed Complainant’s records because Complainant complained he did not have enough time to document during his tour of duty. When S1 reviewed the records to see how she could help, S1 found that Complainant was scheduling patients for long periods of time but did not document how the time was used. For example, Complainant could have scheduled a patient for 60 minutes, of which 45 minutes would be used with the patient and the remaining 10 to 15 minutes used to document the interaction. In Claim (17), Complainant sought FMLA leave due to a high blood pressure reading. According to Complainant, S2 responded that he needed to choose between his health and the job. S2 denied this allegation but explained that Complainant had asked her whether his license and credentials would be affected if he resigned. S2 spoke with human resources and confirmed that resignation would not affect his license. As noted above, Complainant was issued a letter of reprimand as alleged in Claim (18). Complainant contended his failure to complete patient notes was a direct result of his increased workload, and that he had told S1 he was having a hard time keeping up. The reprimand covered a variety of issues associated with Complainant’s documentation. He delayed his documentation of patient care, failed to document, and improperly copied and pasted language in documentation. S1 also commented that she did not believe Complainant was incompetent since Complainant showed he was able to properly document his interactions during the FPPE. And lastly, in Claim (19), S2 proposed Complainant’s removal due to his inability to maintain a regular work schedule. In the removal, S2 explained that, between November 20, 2016, and November 21, 2017, Complainant used 578 hours of Leave Without Pay (LWOP), 86 hours of Annual Leave, and 60 hours of Sick Leave. The Agency disregarded Complainant’s FMLA leave, but noted that as of November 8, 2017, Complainant had not returned to duty. According to management, the “impact of [Complainant’s] absences has become too extreme to continue in this manner.” 2019003562 6 Complainant noted that the proposed removal was issued the day his FMLA leave expired. Complainant claimed that CW1 was treated more favorably than him because CW1 was suspended three or four times in a year but never removed. S2 explained that Complainant did not maintain a work schedule. S2 denied that CW1 was treated more favorably and noted that CW1 no longer works for the Agency. S1 added that CW1 was pulled from patient interactions due to patient complaints against him. Based on associated findings and his behavior, CW1 no longer works for the Agency. S1 maintained that Complainant’s removal had nothing to do with Complainant personally. Rather, he took excessive leave despite S1’s offers of assistance. 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 EEOC 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 concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant articulates several arguments on appeal, and we summarize some of these arguments here. Of note, Complainant withdraws Claims (1) and (2). Complainant maintains that he has been discriminated against as alleged in the remainder of his complaint. Complainant contends that the Agency should have treated his physicians’ recommendations as a request for reasonable accommodation. Complainant further contends his therapy time was so highly scheduled that he did not have adequate time for proper progress and case notes, but S1 did not provide any relief. To this end, Complainant asserts that being placed on a FPPE as a result of his documentation issues was improper and unnecessary. Complainant repeatedly returns to the issue of a heavy caseload and argues that his supervisors knowingly created a situation in which Complainant would never be able to succeed. With respect to his removal, Complainant argues that all of his absences were approved, and therefore the Agency is discriminating against him. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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”). 2019003562 7 Disparate Treatment To prevail in a disparate treatment claim, Complainant 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 Constr. Corp. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, Agency management articulated legitimate, nondiscriminatory reasons for its actions as more fully discussed above. For example, S1 and S2 each explained that the bulk of their disciplinary and performance-based actions were taken because of Complainant’s failure to document interactions with his patients, which was necessary for patient care and to ensure Complainant’s productivity was on par. S1 added that she did not believe it was an issue as to Complainant’s competence because during the FPPE, Complainant proved he was able to document his interactions. Officials denied that Complainant had an excessive workload. As further examples, S1 and S2 provided evidence of communications with other Agency officials showing that they were directed to verify Complainant’s whereabouts (Claim (12)) and that they sought to exonerate Complainant of any wrongdoing with respect to a patient’s accusation (Claim (11)). Additionally, Complainant was issued the notice of proposed removal for his failure to be regular in attendance. Complainant had accumulated 578 hours of Leave Without Pay (LWOP), 86 hours of Annual Leave, and 60 hours of Sick Leave. Complainant failed to return to work on November 8, 2017, as was stated in his medical documentation, and failed to submit documentation supporting his continued absence. The record reveals that management has not taken any further action regarding this proposed removal. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. 2019003562 8 Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of his protected classes. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that he was subjected to discrimination or a hostile work environment as alleged. 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 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). 2019003562 9 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 16, 2021 Date