[Redacted], Palmer P., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020002919 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Palmer P.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020002919 Agency No. 17-02-093 DECISION On March 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 February 10, 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. 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 an Equal Opportunity Assistant, GS-0360-06 at the Agency’s Office of Federal Contract Compliance Programs (OFCCP) in New York, New York. Complainant was previously at the GS-7 level in the Agency’s Hartford, Connecticut office. According to the record, on February 4, 2014, Complainant voluntarily accepted a transfer to his position in New York pursuant to his request for reasonable accommodation for his learning impairment condition. The signed job offer made no promises or assurances as to a work schedule. The record contains email correspondence in December 2015 and February 2016. Therein, Complainant’s supervisor (S1) noted that Complainant asserted, as part of his transfer from Hartford, Connecticut to New York, he was given a flexible work schedule that does not require 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. 2020002919 2 him to start work until 10:00 a.m. Tuesdays through Thursdays, and 10:30 a.m. on Mondays and Fridays. Complainant did not provide evidence of this agreement. S1 attested that the OFCCP North East Regional Office and the Office of the Assistant Secretary for Administration and Management also did not have such an agreement. S1 explained to Complainant that he would need to provide a copy of the purported agreement or submit a request for reasonable accommodation otherwise he would be expected to provide office coverage beginning at 9:00 a.m. S1 stated that Complainant later reversed his earlier position and informed S1 that he could be in the office by 9:00 a.m. and did not need any accommodation. Complainant applied for the position of Equal Opportunity Specialist, under Vacancy Announcement No. MS-17-BNY-OFCCP-52. This position would have resulted in a promotion for Complainant to the GS-7 level. On February 3, 2017, Complainant learned he was not selected for the position. The Selecting Official (SO) testified that Complainant was minimally qualified for the position but was not selected because he was not the most qualified person. SO explained that the person selected for the position was the most qualified; she had a law degree and was trained in reading, interpreting, and applying laws and regulations. The selectee also demonstrated experience working with highly complex data, could work independently, and was fluent in Spanish, a preferred qualification for the position. SO noted that Complainant was not as qualified because, among other examples, he had a bachelor’s degree, because the selectee’s writing sample was more thorough and better written, and because he was not fluent in Spanish. On August 1, 2017, S1 met with Complainant to discuss Complainant’s attendance. According to S1, Complainant was late to work 15 times in the month of July, and that he needed to be at work by 9:00 a.m. S1 noted that Complainant did not believe that there was an Agency policy that required him to be at work by 9:00 a.m. but acknowledged that S1 had repeatedly instructed him to be at work by that time. On August 2, 2017, S1 memorialized his meeting with Complainant in an email to Complainant. S1 added that Complainant’s duties require him to answer phone calls, respond to callers, and handle in-person inquiries from the public. S1 acknowledged that Complainant was on a flexible schedule, but the requirement that he carry out mission-critical duties did not violate his flexible schedule. These mission-critical duties generally occurred between 9:00 a.m. and 5:00 p.m. On September 7, 2017, Complainant emailed S1 and stated, “As of this morning (09/07/2017), I have resigned from my position as Equal Opportunity Assistant.” Complainant noted that his badge and Agency equipment were in his cubicle desk drawer. Complainant provided no reason for his resignation. In his affidavit, Complainant explained he resigned because of a October 28, 2013 Letter of Reprimand; not receiving promotion to the GS-11 level in December 2013; being downgraded in February 2014; receiving a negative performance evaluation in February 2014; being denied telework on July 11, 2013 and February 25, 2014; and because of the alleged incidents in this complaint. S1 stated that he received no reason for Complainant’s resignation. 2020002919 3 On March 17, 2017 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (learning disability) and in reprisal for prior protected EEO activity when: 1. on February 3, 2017, Complainant learned he was not selected for the position of Equal Opportunity Specialist under Vacancy Announcement No. MS-17-BNY- OFCCP-52; 2. between August 2, 2017, and September 7, 2017, Complainant has been required to be at work between 9:00 a.m. and 5:30 p.m. despite the fact that he is on a flexible schedule; and 3. on September 7, 2017, Complainant was constructively discharged. The Agency dismissed several additional claims that occurred in 2013 and 2014 pursuant to 29 C.F.R. § 1614.107(a)(2) as untimely raised with an EEO Counselor. The Agency processed the matter as a mixed-case complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and issued a decision finding that he failed to prove he was subjected to discrimination as alleged. The Agency provided him rights to appeal to the Merit Systems Protection Board (MSPB). After the MSPB concluded it did not have jurisdiction over the constructive discharge claim, Complainant appealed to the Commission, and in Palmer P. v. Dep’t of Labor, EEOC Appeal No. 2020000396 (Oct. 22, 2019), we remanded the matter to the Agency as a non-mixed complaint for further processing. The Agency then provided Complainant with notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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. On appeal, Complainant alleges that his allegations from 2013 and 2014 dismissed as untimely are not covered by EEO regulations, but rather by contract law and therefore a different statute of limitations applies to these claims. ANALYSIS AND FINDINGS As an initial matter, we can find no basis to disturb the Agency’s dismissal of Complainant’s earlier allegations. In doing so, we reject Complainant’s argument on appeal that a different statute of limitations applies to his claims because they are grounded in contract law. To the extent Complainant alleges applicability of law outside the federal EEO process codified by 29 C.F.R. Part 1614, we do not have jurisdiction to address these matters. Under Part 1614, Complainant had 45 days to raise these claims with an EEO counselor. He did not contact a counselor until March 2017, which was years after these events occurred and they are too remote in time to constitute a continuing violation. 2020002919 4 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”). Disparate Treatment - Claims (1) and (2) 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 802 n.13. 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). In this case, the Agency has articulated legitimate, nondiscriminatory reasons. In Claim (1), Complainant was not selected because the selectee exhibited far superior qualifications. In Claim (2), Complainant needed to be at work because the duties of his job required him to cover telephone calls and be available to address in-person visits, both of which opened to the public at 9:00 a.m. Complainant was free to work a flexible schedule, for example he could have come into the office at 8:30 a.m. and left at 5:00 p.m. However, S1 testified that Complainant was required to cover the above-mentioned mission-critical duties from 9:00 a.m. to 5:00 p.m. 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). Where, as in Claim (1), the alleged discriminatory action is non-selection, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among qualified candidates based on its discretion, provided that the decision is not based upon unlawful criteria. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997). 2020002919 5 It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). In this matter, the record does not reveal that Complainant’s qualifications were demonstrably superior to those of the selectee, and the SO clearly articulates the qualifications that made the selectee a superior candidate to Complainant. Complainant does not demonstrate otherwise. In Claim (2), Complainant argues, without citation or support in the record, that he only needed to be at the office by 10:00 a.m. and that S1’s directives to him constituted retaliation. The record shows otherwise; Complainant was told on several occasions, both at the start of his transfer to New York, and by S1, that he needed to ensure coverage of telephone calls and in- person visits, which would begin at 9:00 a.m. Complainant has failed to prove that the Agency's explanations for its actions were mere pretext designed to conceal discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant did not establish by a preponderance of the evidence that the Agency subjected him to discrimination or reprisal as alleged. Denial of Reasonable Accommodation To the extent that Complainant alleges that he was denied a reasonable accommodation, our review of the record supports that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act. 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 (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. The Commission will assume, without deciding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Here, the record establishes that in December 2015, S1 met with Complainant and Complainant indicated that he had an agreement when he transferred from Hartford that allowed him to start working at 10:00 a.m. Tuesday through Thursday and 10:30 a.m. on Mondays and Fridays. S1 requested a copy of the agreement, but Complainant refused to provide it. S1 investigated, but no management or union officials could locate a copy of the alleged agreement. 2020002919 6 S1 then informed Complainant that he could either produce a copy of the document, request reasonable accommodation, or he would need to ensure that he provided coverage by 9:00 a.m. Complainant subsequently informed S1 that he could be in the office by 9:00 a.m. and did not need any accommodation. There is no evidence that Complainant ever requested an accommodation. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Constructive Discharge - Claim (3) The Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission finds that Complainant has not shown that the Agency's actions were motivated by discriminatory or retaliatory animus. We further note that the additional events Complainant alleged contributed to his constructive discharge occurred three and four years in the past; Complainant’s working environment could not be so pervasive that a reasonable person would feel compelled to resign. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. As a result, we find that Complainant was not subjected to discrimination, reprisal, or constructive discharge 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. 2020002919 7 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. 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. 2020002919 8 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 May 19, 2021 Date