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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000992 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renaldo V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000992 Agency No. 200P-0345-2015105593 Hearing No. 540-2016-00258X DECISION On October 31, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 2, 2019 final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant was employed by the Agency as a Legal Administrative Specialist (LAS), GS-5, at the Agency’s VA National Call Center (NCC) in Phoenix, Arizona. Complainant was hired under the Schedule A Hiring Authority with a two-year probationary period. On December 10, 2015, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on disability,2 age (over 40), and in reprisal for protected EEO activity (current EEO complaint) when: 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. 2020000992 2 1. from December 2014 to August 2015, the Supervisory Legal Administrative Specialist, also Complainant’s supervisor, told Complainant to use the restroom during his fifteen-minute breaks or lunch in response to his verbal accommodation request for additional bathroom breaks; 2. during the period of December 2014 to September 3, 2015, he was not paid for overtime work; 3. during the period of December 2014 to September 3, 2015, the supervisor changed Complainant’s performance to a level so high, he could not meet the performance level, and he was the only employee not given time for exclusionary tracking; 4. from December 2014 to February 2015, his former coach informed him he was being discussed at staff meetings and subjected to extra scrutiny; 5. on June 10, 2015, the supervisor encouraged Complainant not to file a workman’s comp claim when he was injured on the job; 6. on July 13, 2015, the NCC Phoenix Manager did not respond to Complainant regarding a named Supervisor Training Specialist, telling Complainant in a loud voice that he was carrying things too far; 7. on July 16, 2015, Complainant received mail from Veterans Benefits Administrative (VBA) at his eBay PO Box; 8. on July 24, 2015, Complainant was not referred for the position of Congressional Analyst, Vacancy Announcement #345-15-045 and did not receive a response from the VA Regional Office Phoenix (VARO) Phoenix Assistant Director, inquiring why he was determined unqualified for this position; 9. on September 3, 2015, Complainant resigned in lieu of disciplinary action, constituting a constructive discharge; and 10. on September 4, 2015, the supervisor mishandled Complainant’s medication by removing it from a shipment intended for him and placed them in plain view on his bookcase disclosing his confidential medical information. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 30, 2019, the AJ issued a decision by summary judgment in favor of the Agency. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 2020000992 3 The Agency issued its final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove his harassment/hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability, age and/or prior EEO activity. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The record developed during the investigation establishes that during the relevant period Complainant has worked as a Legal Administrative Specialist (LAS), GS-5, at the Agency’s VA National Call Center (NCC) in Phoenix, Arizona. The Supervisory Legal Administrative Specialist was Complainant’s first line supervisor. The AJ noted that Complainant acknowledged that being denied additional bathroom breaks were not based on his age. He further noted being denied additional bathroom breaks did not interfere with his work performance or ability to do his job. 2020000992 4 The supervisor (over 40), he stated that a request for additional bathroom breaks were common at the VA National Call Center and there were means to accommodate employees’ requests. With respect to Complainant’s allegation that he was not paid for overtime work, the AJ noted that Complainant was aware he needed prior approval and acknowledged he never submitted paperwork to request getting paid for overtime. The supervisor asserted that Complainant never told him he was working beyond his regular work hours. Regarding Complainant’s allegation that the supervisor changed his performance standard to a level so high that he could not meet the performance level and that he was the only employee not given time for exclusionary tracking, the supervisor asserted that he never raised Complainant’s performance standards. He also mentioned that he and the NCC Manager had discussed Complainant’s previous higher pay request, but the discussion was not in the context of a staff meeting or for purposes of extra scrutiny. With respect to Complainant’s worker’s compensation allegation, Complainant did not file a worker’s compensation claim. The supervisor stated he never advised Complainant not to file a worker’s compensation claim. In regard to Complainant’s mail he received from Veterans Benefits Administration (VBA) at his eBay PO Box, the supervisor claimed he had no knowledge of this matter. Complainant claimed that the VARO Director did not respond to his inquiry why he was determined to be unqualified for the position of Congressional Analyst. However, the AJ noted that the VARO Director was not the selecting official. As a Director, he would have not been in the position to give this type of information to Complainant. Moreover, the Director stated he does not recall receiving an inquiry from Complainant. Finally, after Complainant resigned from Agency employment, he left his office without taking his personal belongings. The supervisor asked two employees to assist him in packing Complainant’s belongings to him, which is standard practice. During the process, the supervisor discovered Complainant’s medication. Because the supervisor did not know what the medication was for, he locked it in his cabinet. The record reflects that Complainant’s belongings were brought to Human Resources to be mailed to Complainant, but the supervisor said he forgot to include Complainant’s medicine in the package. The supervisor attempted to mail Complainant’s medication later, but it was advertently sent to the wrong address, returned to the Agency and then sent to Complainant’s correct address. He asserted that these mistakes were unintentional. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his disability, age, and prior EEO activity. 2020000992 5 Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Constructive Discharge Complainant also asserted that he was forced to resign effective September 3, 2015, due to the discrimination and retaliation he was experiencing. In his affidavit, Complainant claimed Agency management intended to constructively discharge him. Complainant stated that he therefore resigned, because a reasonable person could not remain in his position. Complainant also claimed his former coach informed him that someone in management mentioned his Higher Previous Rate (HPR) grievance during a meeting. He believed the HPR issues were the triggering event for his hostile work environment and constructive discharge. As a result, Complainant submitted his resignation. In essence, by arguing his resignation was coerced by the Agency's actions, Complainant is raising a claim that he was constructively discharged. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Here, in light of our conclusion explained earlier in this decision that Complainant was not subjected to disability and age discrimination or unlawful retaliation for engaging in prior protected activity, we conclude that Complainant has failed to prove that his resignation was a constructive discharge in violation of Title VII. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 2020000992 6 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). 2020000992 7 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 May 24, 2021 Date