[Redacted], Russ Y., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020004025 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Russ Y.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020004025 Agency No. DHANCR 17-0081 DECISION 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 24, 2020, final decision concerning his equal employment opportunity (EEO) complaint 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and 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 Diagnostic Radiology Technician (DRT) assigned to the Radiology Department at the Fort Belvoir Community Hospital (FBCH) located on Fort Belvoir, Virginia. S1, Supervisor Radiology, was Complainant’s immediate supervisor, and S2, Supervisor, Diagnostic Radiology, was his second level supervisor. Complainant filed a complaint, later amended, alleging that he was subjected to discrimination and a hostile work environment based on race (Caucasian), age (over 40), disability (Posttraumatic Stress Disorder, Major Depressive Disorder, Attention- 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. 2020004025 2 Deficit/Hyperactivity Disorder, and Hepatitis C), and reprisal for engaging in protected EEO activity), from December 2013 until August 2017, when the following actions occurred: a) On August 28, 2017, he was issued a retaliatory and harassing memorandum at the direction of S1; b) On July 11, 2017, S1 denied his April 25, 2017, request for reasonable accommodation; c) On July 11, 2017, S1 inappropriately cited an unrelated and resolved prior medical issue in his (S1’s) denial of Complainant’s April 25, 2017, reasonable accommodation request; d) On July 8, 2017, he discovered S1 and S2 revised his performance rating to “Acceptable” and forged his on the rating form; e) Around June 29, 2017, S1 and S2 issued him an “Unacceptable” performance rating; f) Since March 24, 2017, S1 and S2 began to distance themselves from him and ostracized him; g) Beginning on March 13, 2017 and continuing, rather than attempting to reasonably accommodate him, S1 detailed him to an Administrative/File Room Clerk position; h) Since March 10, 2017, S1 ignored a patient’s survey which praised him; i) On January 9, 2017, S1 issued a Memorandum for the Record (MFR) accusing him of “Sub-Performance of Duties and Inability to Uphold Professional Standards”; j) On September 9, 2016, S1 issued him an MFR accusing him of failure to provide radiology services and follow FBCH professional standards; k) On or about November 12, 2015, S1 interrupted him and ordered him to take a Respirator Fit Test which he would be unable to pass due to breathing issues; l) On July 2, 2015, S1 sent him an email falsely accusing him of being on leave without notifying management of his whereabouts; m) On or about October 22, 2014, S1 issued him an Error Memorandum, which falsely accused him of utilizing improper patient arrival procedures; n) On August 6, 2014, S2 ordered him to undergo a second medical examination which resulted in him being found unfit for duty and forced to take unpaid leave; o) On July 24, 2014, S2 ignored his request to be excused from the front desk to complete required training which was necessary because of his medical condition; p) In June 2014, S2 forced him to undergo an unnecessary Fitness for Duty exam; q) In May 2014, upon returning to work after being on leave, S2 accused him of “lollygagging” in the halls; r) On December 30, 2013, S2 singled him out in an accusatory manner for not being present when the day shift was released for the day. Complainant also filed an amendment to his complaint alleging that he was discriminated against and subjected to a hostile work environment due to his race, age, disability, and reprisal when: 2020004025 3 s) On December 6, 2018, when he attempted to return to work after extended leave due to a medical condition, his supervisor, S1, advised him that his preexisting reasonable accommodation working in the Mammography Department was being cancelled; t) On December 6, 2018, when he attempted to return to work, S1 issued him a memorandum directing that, among other things, he would need to undergo a fitness for duty exam for job duties inconsistent with those required by his current accommodated position; u) Since December 2018, when he resumed work, and continuing, the Agency failed to compensate him for his performed work, including failing to pay him for performed work on two consecutive pay dates; v) Since December 2018, when he resumed work, and continuing, S1 required him to sign in at a location at a significant distance from the Mammography Department where he currently worked, even though he was permitted to sign in at Mammography before he went out on the aforementioned extended leave; and w) Between approximately March 2018, when he went out on extended leave, and December 2018, when he returned to work, the Agency subjected him to additional harassment by ignoring his repeated requests for assistance and information regarding medical/disability related benefits and leave. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. After Complainant did not make an election, 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 as alleged. This appeal followed. 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”). Regarding claim a, S1 stated that, upon Complainant’s return to work after an eight-month absence, he issued a memorandum entitled “Request for Reasonable Accommodation - Job Search Information,” dated August 25, 2017. The document indicated that the notes from Complainant’s medical care providers did not afford enough information to enable the Agency to determine what position might be appropriate to accommodate his medical conditions. 2020004025 4 Regarding claims b and c, S1 stated that, after a thorough review of Complainant’s request to continue working in some capacity in the Radiology Department, the request was denied based in part, on Complainant’s acknowledgement that he could not stand for long periods of time, that he had problems with his memory, and that he could not support patients or control a patient if he were to fall. The Agency noted that it set out in detail Complainant’s documented medical and psychological limitations and the reasons why the various accommodations he sought were inappropriate or unfeasible. Regarding claims d and e, S1 stated that, during the period in question, Complainant was working in an administrative position, not in a radiology technology position. Therefore, his performance evaluation was revised to reflect the duties of the administrative position. S1 stated that Complainant did not receive an “Unacceptable” performance rating, nor did he or S2 have any knowledge regarding his signature being forged. The record indicated that Complainant was rated “Fully Successful” in the administrative position in Mammography to which he was temporarily detailed. The Agency also found no evidence that would indicate that his signature was forged. Regarding claims f and g, S1 stated that Complainant was detailed to the Administrative/File Room Clerk position to comply with his reasonable accommodation request, not to distance him from S1. Complainant was unable to perform the essential functions of his position as a DRT due to his medical conditions and that was the reason for the detail. S2 also denied any attempt to distance or ostracize Complainant but maintained that the temporary reassignment was only until they found an alternate work location within his restrictions. Regarding claims h and i, S1 denied ignoring Complainant’s positive patient recognition survey. He maintained, however, that when issuing the January 9, 2017, MFR, he relied upon information from the complaints and reports from the FBCH clinical activities where Complainant provided radiology services. This information was provided by operating room surgeons, medical technologists assisting patients, orthopedic activity supervisors, administrative reception personnel and emergency room staff. Based on this information, S1 determined that Complainant was not performing up to professional standards. Regarding claim j, S1 stated that he issued Complainant an MFR on September 9, 2016, for failure to follow professional standards. Although he did not personally observe Complainant failing to perform his duties, S1 relied on reports from those who worked with him. Among the reasons cited in the MFR were Complainant’s inability to operate the x-ray apparatus to the satisfaction of the operating room surgeon, his disclosure of personal patient information concerning a young patient within earshot of her parents, patients, and staff, the dissatisfaction of Orthopedic Services with his performance, and his lack of professional tact. With respect to claim k, S1 stated that he did not recall interrupting Complainant but that all employees under his supervision were required to take Respirator Fit Tests. S2 corroborated this by stating that all DRTs were required to take Respiratory Fit Tests annually. 2020004025 5 With respect to claims l and m, S1 stated that there were times when Complainant took leave without providing notice to him, because he was detailed out of the Radiology Department, he could leave work and he, S1, would not become aware of Complainant’s absence until much later. This was why he insisted on Complainant’s compliance with established leave procedures. Moreover, with respect to the October 22, 2014, Error Memorandum, the record contains an email exchange between Complainant and S1 on October 23, 2014. In the exchange, Complainant asked S1 to issue a correction to the Error Memorandum, which resulted from a recent counseling. Complainant wanted to rebut the incident described in the Memorandum, but S1 denied his request, stating that everything concerning the counseling would stay on the record as it was and that the Memorandum was part of the counseling and would also remain in the record. Regarding claim n, S2 stated that due to patient safety concerns he had regarding Complainant’s performance as a DRT, he requested and received guidance from the Labor Management Employee Relations (LMER) office about conducting a Fitness for Duty examination. The examination determined that Complainant was not able to perform his duties of a DRT. Regarding claim o, S2 stated that he did not recall the specific incident but that it was possible that, during a time of high patient volume, Complainant’s request to leave the work area to complete training was denied. S2 indicated, however, that staff was provided ample opportunity to complete required training when it did not interfere with patient care. The Agency also noted that, based on email communications, there was no clear indication that Complainant was every required to complete the training at issue or that he was denied the opportunity to leave the front desk to do so. With respect to claim p, S2 stated that he was uncertain of the dates Complainant had Fitness for Duty exams in 2014, or if he was told to take an additional examination, but that employees who demonstrated an inability to safely perform their duties will be considered for Fitness for Duty assessments. Regarding claim q, S2 stated that he did not recall accusing Complainant “lollygagging” in the halls in 2014. Regarding claim r, S2 did not recall accusing Complainant, on December 30, 2013, of not being present when the day shift was released for the day. Regarding claim s, S1 denied telling Complainant that his assignment to the Mammography Department was cancelled. He noted, however, that when Complainant was first assigned to the Mammography Department in March 2017, due to his inability to perform the duties of a DRT, it was only a temporary assignment that was never intended to be permanent. 2020004025 6 Regarding claim t, S1 stated that he told Complainant to take another Fitness for Duty examination pursuant to the direction of the LMER Office, because Complainant had been absent from work for eight months, and indicated that he was weak, and was experiencing loss of memory and tiredness. S1 also noted that Complainant was slow to respond to questions and trembled when he wrote documents due to his brain operation. With respect to claim u, S1 stated that after Complainant informed him and S2 about his pay problem, he immediately informed the Finance Office of the situation and did everything to resolve the problem. S1 denied having any involvement in the system error that caused Complainant to not receive pay for two consecutive pay periods after returning from his eight- month absence. S2 stated that it was determined that Complainant had been placed in an in- active status in the pay system and the Human Resources Department was asked to rectify the problem. According to S2, the length of time it took to resolve the problem did not accurately reflect the efforts made to resolve it. Also, Complainant received all money owed to him via a special payment. Regarding claim v, S1 stated that the reason he told Complainant to sign in at the Radiology Department was because all Radiology personnel signed in at one location regardless of where they were assigned. He noted that by doing so, he can ensure all DRTs come to work and he could consult with them if there are any problems, when they all sign in at one location. S2 noted that Complainant’s sign-in location was subsequently changed to the Mammography Department while the LMER Office was reviewing his medical limitations. Regarding claim w, Complainant maintained that, between approximately March 2018, when he went out on extended leave, and December 2018, when he returned to work, the Agency subjected him to additional harassment by ignoring his repeated requests for assistance and information regarding medical/disability related benefits and leave. S1 stated that Complainant did not ask him for information regarding his medical disability or related medical benefits. Complainant, he stated, did ask him questions regarding leave, and he did not refuse to help Complainant and gave him the information he requested. S2 stated that Complainant did not ask him directly for his assistance regarding medical/disability issues and information, but that S1 provided information to both Complainant and his sister regarding their inquiries. S1, he maintained, was in constant contact with the LMER Office and other Agency officials and received guidance from them. Upon review of the record, we find that based on the preponderance of the evidence that Complainant did not establish that he was subjected to discrimination or harassment based on race, age, disability, and prior EEO activity. Assuming, arguendo, Complainant established prima facie cases of discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for claims a, c, d, e, f, h, i, j, k, l, m, o, u, v and w. We further find that Complainant did not provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in these matters. With respect to Complainant’s claim of a hostile work environment, we find that a finding of a hostile work environment is precluded regarding claims a, c, d, e, f, h, i, j, k, l, m, o, u, v, and w by our determination above that 2020004025 7 Complainant failed to establish that these actions were motivated by discriminatory animus. Moreover, we found no persuasive evidence that any other matter Complainant deemed harassing were motivated by discrimination, i.e., claims q and r, nor do we find that these matters, even if true, were severe or pervasive enough to rise to the level of unlawful harassing behavior. We also find regarding claims b, g, and s that the Agency offered Complainant effective reasonable accommodations after determining that he could not perform the essential functions of his DRT position. Finally, with respect to claims n, p, and t, we find that the Agency established that Complainant was referred to Fitness for Duty examinations for reasons that were job-related and consistent with business necessity. CONCLUSION Upon review of the evidence of record, and Complainant’s statement on appeal, 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. 2020004025 8 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. The court has the sole discretion to grant or deny these types of requests. 2020004025 9 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 July 19, 2021 Date