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

Equal Employment Opportunity Commission

Jun 29, 2021

Appeal No. 2020004000 (E.E.O.C. Jun. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wayne C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004000 Agency No. 200J-0537-2017103199 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 20, 2020, finding no discrimination concerning his 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. 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Assistant, GS-6, at the Jesse Brown Veterans Affairs Medical Center in Chicago, Illinois. On October 10, 2017, Complainant filed an EEO complaint, which was later amended, alleging he was subjected to a hostile work environment based on disability and in reprisal for prior EEO activity when: 1. On October 3, 2016, he received a written counseling. 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. 2020004000 2 2. Beginning October 14, 2016, and continuing through June 5, 2017, he received a written notice of verbal counseling; he was placed on a Performance Improvement Plan (PIP); he was assigned to a different position and required to work in a cubicle across from his supervisor’s (S1) office; S1 monitored him and wrote him up for being away from his desk; S1 accused him of stealing government money by taking long breaks; whenever he took leave, S1 complained and discussed his absence with his coworkers; he received a mid-year performance evaluation which was rated “Needs Improvement”; S1 told him that he was irresponsible and should have kept her more informed; on June 5, 2017, he was placed on a PIP; and referred to Employee Assistance Program (EAP). 3. In May 2017, S1 assigned him extra duties that should have been performed by other departments. 4. From August 10, 2017, and continuing through the present, S1 required him to meet with her regarding his leave; moved his desk back upstairs; restricted his dispatch duties by giving them to two supervisors to perform, causing departmental confusion; his time and leave were heavily scrutinized; and as a result, he was being threatened with Absent Without Leave (AWOL). 5. From August 10, 2017, and continuing through the present, his Timekeeper placed him into a position where he had to work overtime and not get paid. 6. Beginning November 3, 2017, and continuing to the present, S1 told Complainant that she knew he was inquiring about other positions that he was eligible for; S1 told him that numerous people called her and she deliberately gave them a bad report to sabotage all chances of him advancing; S1 stated “if you think you are going anywhere you are not;” and S1 further stated “you should be thankful that she has not gotten rid of him yet.” 7. On or about December 28, 2017, he was offered a new position at the Gary Vet Center; however, on or about January 23, 2018, Human Resources (HR) advised him that he was not eligible for the position. Complainant does not challenge the Agency’s framing of his claims. After completion of the investigation of the complaint, the Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that his disabilities were post-traumatic stress disorder, depression, anxiety, migraines, and sleep apnea. Regarding claim 1, the record reflects that on October 7, 2016, Complainant was given a Written Counseling dated October 3, 2016, concerning his poor performance in three major areas which included: scheduling patients for pickups, data collections, and tracking support; consult management responsibilities; and program support responsibilities. 2020004000 3 Regarding claim 2, S1 denied accusing Complainant of stealing government money or not trusting him. The Transportation Services at the facility expanded and some employees, including Complainant, were located to the 2nd floor. The record reflects that on October 14, 2016, Complainant was issued a Notification of Unacceptable Performance/Opportunity to Improve for his performance deficiencies in program administration/scheduling when he failed to properly schedule transport for patients and dispatch workload to drivers with correct patient information. The record also reflects that on October 27, 2016, Complainant was given “Unacceptable” annual performance rating for the rating period from October 1, 2015, to September 30, 2016, for his unacceptable performance in the critical areas of program administration/scheduling duties. On January 24, 2017, S1 recorded her meeting with Complainant indicating the fact that Complainant was informed of his tardiness and unauthorized absence from his duty station. On April 6, 2017, S1 issued Complainant a written verbal counseling for his failure to log in his travel arrangements that were made by him for veterans and as a result, veterans were not transported for scheduled appointments on April 3, 2017. The record reflects that the facility received complaints from veterans on March 28 and 31, 2017, and on April 3, 2017, against Complainant that they scheduled with Complainant for their pick up time but they were not picked up as scheduled and they were late for their appointments on several occasions. They also complained that Complainant was rude to them when they inquired about their scheduling issues. On April 6, 2017, S1 also issued Complainant a Notification of Unexcused Absence from Duty Station during the time period of March 3 - 31, 2017. On June 5, 2017, Complainant received “Needs Improvement” mid-year performance evaluation due to his unacceptable performance in the areas of scheduling/administration and teamwork/support to management. He was referred to EAP due to his performance and conduct issues. Regarding claim 3, S1 denied the incident. Regarding claim 4, S1 indicated that due to Complainant’s consistent tardiness and his poor performance, she requested to meet with him to discuss her concerns. Complainant’s desk was moved upstairs due to the expansion of their facility. S1 denied giving Complainant’s duties to two supervisors. The record reflects that on September 15, 2017, Complainant was issued a Tardiness - Written Counseling. Therein, he was informed that any episodes of unexcused tardiness would result in a charge of AWOL. There is no evidence Complainant was issued AWOL as a result. Regarding claim 5, Complainant clarified that the incident occurred on July 27, 2017, when he worked overtime to correct an error by the Timekeeper with scheduling. S1 denied Complainant worked overtime on July 27, 2017. Regarding claim 6, S1 did not recall the incident. 2020004000 4 Regarding claim 7, as his professional references for a new position for which he applied, i.e., the Program Support Assistant position, GS-6, in the Gary Vet Center, Complainant provided Person A’s name, not S1’s name, as his immediate supervisor. When the Gary Vet Center Human Resources (HR) unsuccessfully tried to contact Person A for a transfer date, Complainant admitted to HR that HR could contact S1 for his transfer date and that he was not forthcoming with S1’s name due to “questions of the credibility of her reference.” HR contacted S1 and S1 confirmed that there was no one with Person A’s name on her team and S1 had been Complainant’s immediate supervisor for the past two years. Based on the foregoing, the Gary Vet Center withdrew Complainant’s job offer. Complainant filed the instant appeal. 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 (EEO MD-110), Chap. 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"). Assuming, without deciding, Complainant is an individual with a disability, Complainant does not allege that he was denied a reasonable accommodation. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Here, S1 was doing her supervisory duties which included assuring Complainant’s compliance with the Agency’s leave policy and procedures, monitoring his performance, providing counseling, taking actions for his improper conduct, evaluating his performance, taking actions in the face of his performance shortcomings, and otherwise managing the workplace. See Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). We also find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020004000 5 Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 2020004000 6 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 29, 2021 Date