[Redacted], Otis H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020003743 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otis H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003743 Agency No. ARBLISS19MAY01647 DECISION On June 11, 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 May 13, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 a Medical Support Assistant (Office Automation), Grade GS-4, in the Agency’s William Beaumont Army Medical Center (WBAMC), Ear Nose and Throat Clinic (ENT Clinic), at Fort Bliss, Texas. On June 11, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (Black), disability (PTSD, TBI, depression, chronic pain or cancer-related nerve damage),2 age (49), and in reprisal for 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 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 2 2020003743 EEO protected activity (support of 2019 EEO complaint by spouse and his present complaint initiated by EEO Counselor contact on May 3, 2019) when: a) On April 17, 2019, Complainant's first direct-supervisor, who was a military Captain (CPT), met with an WBAMC Labor Management Employee Relations Specialist (LMER Specialist) to discuss Complainant’s Family and Medical Leave (FMLA) confidential private medical information without allowing him to have a union representative present to represent him. b) On April 23, 2019, in a letter, CPT, the WBAMC Surgery Administrator (Administrator) and WBAMC Civilian Personnel Specialist (HR Specialist) requested Complainant’s medical diagnosis while he was on active military duty and threatened to place Complainant on absent without leave (AWOL) status if he did not provide them his diagnosis. c) On May 14, 2019, Complainant’s second direct supervisor from May 2019 onward and was a civilian nurse (Nurse) discussed Complainant’s confidential medical information with the acting non-commissioned officer in charge, a military Sergeant (SGT), without Complainant’s consent. d) On June 18, 2019, Nurse stated in an email Complainant failed to provide a doctor’s note with a stamp and signature for Complainant’s mental health FMLA leave. e) On June 18, 2019, Nurse requested doctor’s notes before and after Complainant’s appointment on June 17, 2019. f) On June 20, 2019, Nurse sent Complainant a threatening email placing Complainant on AWOL status for June 17, 2019. g) On June 21, 2019, Nurse falsified Complainant’s timecard by changing it from 16 hours of sick leave to 56 hours of sick leave. h) On July 8, 2019, Complainant received an email from Nurse informing him that his disability reasonable accommodation request was not approved yet, that he should continue to follow leave request procedures while a determination is being made on his RA request, and he should clarify his FMLA leave request by providing any new medical conditions associated with his medical leave request. i) On July 20, 2019, Nurse sent a harassing letter to Complainant’s home, which included his disabilities, and informed him of Nurse’s referral of Complainant to the Employee Assistance Program for therapy for Complainant’s disabilities. 3 2020003743 j) On July 24, 2019, in an email, Complainant’s second-level supervisor who was the Major that was the Chief, Clinical Surgery (MAJ), accused Complainant of providing expired FMLA leave information. k) On August 12, 2019, Complainant received two memoranda, dated August 6, 2019, denying his reasonable accommodation requests submitted on June 28, 2019, and on July 23, 2019, threatened Complainant with AWOL status, and threatened Complainant with disciplinary action. After an 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Per our discussion hereafter, even if Complainant could establish a prima facie case for any of his claims, the Agency articulated non-discriminatory reasons that legitimized its actions. Meanwhile, Complainant has not shown that the Agency’s explanations were a pretext to mask unlawful discriminatory animus related to the raised bases. Regarding Claim (a), the evidence shows that CPT and LMER Specialist had met with Complainant to discuss his conspicuous leave usage. The meeting’s focus was to remind Complainant about compliance with Agency rules. CPT and LMER Specialist denied that Complainant was ever asked to divulge health confidential information. Apparently, Complainant may have received conflicting advice concerning union representation for that meeting. CPT stated Complainant could elect to have his union representative at the meeting. Before leaving the meeting, LMER Specialist stated that neither her presence nor that of the union was necessary at their meeting. 4 2020003743 Regarding Claim (b) wherein CPT requested medical documentation covering Complainant’s absences in April and May 2019, CPT had expressly instructed that disclosure of health conditions was unnecessary. CPT only needed Complainant’s doctors to confirm that Complainant had received medical treatment on the dates he had said he was absent for those reasons. It was proper for CPT to charge Complainant AWOL for absences that he could not prove were for medical reasons. Regarding Claim (c), the record evidence shows that it was Complainant himself who had divulged medical information during a regular work-related discussion. SGT testified that while in scheduling meeting, Complainant volunteered that he had “a lot going on” and then went on to discuss having PTSD and surgery. Regarding Claim (d), (e) and (f), the record revealed that Complainant took unscheduled leave. Moreover, unlike other ENT Clinic staff, Complainant did not consistently give Nurse minimal verbal notice. Complainant described Nurse as unreasonably strict about leave and about medical documentation for health-related leave. A co-worker and fellow medical support assistant also protested scrutiny by ENT Clinic management. Nurse, in contrast, stated that Complainant had ignored instructions to provide qualifying documentation of receiving medical care. We find the sworn statements about the situation are in equipoise. What Complainant has described in the Claims (d) through (f) seem to concern a routine workplace personality conflict not related to any discriminatory motivation. This Commission has consistently held such ordinary disputes do not rise to the level of discriminatory harassment. Regarding Claim (g), Complainant had submitted a time and attendance record (timecard) claiming 56 hours of leave in accordance with Executive Order 5396 (EO 5396). The Agency’s regional counsel for WBAMC advised that EO 5396 authorized Complainant veterans leave for medical treatment necessary to his military-service-connected disabilities. However, EO 5396 required advance documentation from Complainant regarding specific days and specific times for Complainant’s medical treatment. According to the Agency, Complainant incorrectly mischaracterized EO 5396 leave because he did not show qualifying healthcare over the entire 56-hour absence reported in his timecard. A fair reading of the record reflects that Nurse corrected Complainant’s timecard by recoding the EO 5396 leave as sick leave. Complainant did not persuade us that he was wrongfully denied leave as he had alleged. Regarding Claim (h), the record revealed that, in June 2019, Complainant requested a two-month medical leave of absence to manage his mental health. Later, Complainant extended this leave request to three months. In July 2019, MAJ emailed and acknowledged Complainant’s request for three months of leave. However, MAJ clarified that that leave would only be granted upon sufficient documentation that the time-off was required for Complainant’s health. MAJ warned Complainant that, without sufficiently detailed justification documents, medical-related leave converted to AWOL. After a careful reading, we are unpersuaded that MAJ’s emails treated Complainant in any way that was disproportionate or unreasonable under the circumstances. 5 2020003743 Regarding Claim (i), Complainant claimed that the Employee Assistance Program referral (EAP letter) that was mailed to Complainant’s house constituted Agency harassment. Complainant stated that Nurse’s sending the EAP letter was unwelcome conduct. We find that the single EAP letter, without more, does not constitute discriminatory harassment. Nurse justified mailing the EAP letter because Complainant was out of the office. This record lacks evidence of unlawful supervisory motivation. Regarding Claim (j) concerning Complainant’s request for extended leave to attend to his mental health, MAJ instructed Complainant to have his mental health provider complete an updated FMLA form. MAJ clarified that the Agency lacked particular information it needed to authorize FMLA. At that time, the Agency only had a form that Complainant described pain conditions from 2017, as opposed to Complainant’s mental conditions in 2019. Here, it was reasonable for the Agency to request that Complainant provide a FMLA form that was consistent and contemporaneous with his 2019 request for extended leave based on mental health. The record did not show that the Agency had accused Complainant of providing inaccurate FMLA information. Regarding Claim (k), the Agency did not mistreat Complainant by denying reasonable accommodations or threating discipline or AWOL. MAJ explained that the ENT Clinic served a high volume of patients, estimated at 1,000 patients per month. As a reasonable accommodation, MAJ approved acquisition of a headset for Complainant. Complainant was also permitted to take Fridays off. Complainant had requested having Mondays off, or two days off each week. Sworn statements explained that Mondays-off were denied because the ENT Clinic’s Mondays were busier than Fridays. MAJ stated Complainant’s three-day work week request could not be accommodated because Complainant was one of three medical support assistants and all of whom were needed at the ENT Clinic. Although, Complainant did not receive his preferred accommodations, we find that the Agency acted in good faith during the interactive process for purposes of the Rehabilitation Act. Additionally, Complainant lacked evidence to demonstrate that accommodations granted by the Agency were somehow ineffective. In sum, we are not persuaded that Complainant was treated differently from any other Agency employee. We conclude that the Agency properly denied some requested accommodations while providing others. Complainant has not carried his evidentiary burden to establish that age, race, disabilities or EEO activities had unlawfully factored into management’s decisions regarding his employment. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination, for the reasons discussed above. 6 2020003743 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). 7 2020003743 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 November 15, 2021 Date