[Redacted], Wilbur R. 1 Complainant,v.Denis McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020000285 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbur R.1 Complainant, v. Denis McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000285 Agency No. 200J06952018104005 DECISION On August 21, 2019, 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 July 18, 2019, 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. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination when it failed to grant his reasonable accommodation, issued him a counseling letter, and subsequently removed him from federal service during his probationary period. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker, WG-7408-04/01, at the VA Medical Center in Milwaukee, Wisconsin. He was appointed to his position on January 7, 2018. The appointment was subject to a one-year probationary period. 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. 2020000285 2 On September 8, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (mental) when:2 a. On April 18, 23, and May 22, 2018, management issued him written counseling; b. On April 18, 2018, he was not granted an effective reasonable accommodation, which was to have written instructions for his work duties; c. On May 21, 2018, the Food Service Supervisor, who was his first line supervisor (S1), would not allow him to exit the dishwashing room due to his disabilities; and, d. On May 29, 2018, management terminated him during his probationary period. On October 4, 2018, the Agency issued Complainant a Notice of Partial Acceptance, informing him that the Agency would accept claims a, b, and d for investigation. The Agency, however, dismissed claim c for failure to state a claim, as the Agency determined that the underlying allegations were insufficiently severe or pervasive to constitute harassment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant challenges the merits of the Agency’s findings. With regard to claim c, Complainant asserts that his physician who is with the Agency told him to avoid heat sources due to the medications he was taking at the time. Complainant states that while the Agency’s final decision found that the medical evidence of record did not support this restriction, he in fact supplied “all of this paperwork” to human resources. Furthermore, he notes that the Agency knew about this restriction because the restriction was the reason why he went on medical leave prior to his removal. As for claims a, b, and d, Complainant contends that his fourth level supervisor (S4 - Division Manager, Nutrition and Food Services) issued him the counseling letter on April 19, 2018,3 because he refused to sign the “Accommodation Request Determination on April 18, 2019.” He asserts that his supervisor presented him the same letter on May 1, 2018 and asked him to sign it. 2 For ease of reference, we have numbered the claims in the same manner as the Agency. 3 The ROI reflects that the counseling letter was issued on April 23, 2018. See ROI at 261-262. 2020000285 3 Complainant maintains that when he told his supervisor that he still had not received the requested accommodations, his supervisor stated that the Agency could not grant the request because there would be “too many” tasks to list and “that the procedures would all have to [be] changed” when the new kitchen opened. Complainant asserts that he ultimately signed the “Accommodation Request Determination” under protest after his supervisor told him that he would be terminated if he refused to sign. Furthermore, Complainant emphasizes that his supervisor “was well aware that an EEO investigation was well underway for reasonable accommodations when she made the decision to terminate [him].” Complainant also questions the timing of his removal, and he asserts that if his conduct was so deficient as of the counseling on April 19, 2018,4 the Agency should have terminated him at that time rather than wait a month and a half to terminate him. Lastly, Complainant maintains that he contacted the EEO Investigator to add a reprisal claim regarding his removal, but this claim was never addressed in the Agency’s final decision. The Agency opposes the appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW 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), 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”). ANALYSIS AND FINDINGS Preliminary Matters As a preliminary matter, we will first review Complainant’s allegation that the Agency failed to address his reprisal claim, which he allegedly raised with the EEO Investigator. Under our regulations, a complainant may, at any time prior to the agency’s mailing of the notice required by 29 C.F.R. § 1614.108(f), amend a pending EEO complaint to add claims that are like or related to those claims raised in the pending complaint. See EEO MD-110, at Ch. 5, § III.B. If a complainant raises a new claim with an EEO Investigator, the EEO Investigator should instruct him or her to submit a letter to the Agency’s EEO Director or Complaints Manager describing the new claim and stating that he or she wishes to amend the complaint to include the new claim. See id. 4 See fn. 3. 2020000285 4 Once the agency is aware that a complainant is raising a new like or related claim, the agency is required to amend the complaint, acknowledge the amendment in writing, and notify the EEO Investigator to include the new claim in the investigation. See EEO MD-110, at Ch. 5, § III.B.2. Here, our review of the record shows that Complainant alleged during EEO counseling that his removal was based on retaliatory motive. ROI at 10. However, he did not raise reprisal as a basis in his formal EEO complaint. Id. at 4. While we considered Complainant’s contention that he contacted the EEO Investigator to add reprisal as a basis, we note that he has not provided evidence to corroborate his claim. Our own independent review of the record fails to establish that Complainant contacted the EEO Investigator. Moreover, we note that the Agency afforded Complainant seven days to dispute the framing of the complaint; however, Complainant failed to dispute the omission of reprisal as a basis. As a general matter, the Commission does not generally allow a complainant to add a new basis on appeal absent a compelling reason. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (Mar. 27, 1997)). Because Complainant has not provided evidence he requested the addition of the basis of reprisal during the investigation, we shall not address the new basis of reprisal on appeal. Denial of Reasonable Accommodation We turn now to the merits of the complaint, where we will initially address claim b, concerning Complainant’s denial of reasonable accommodation claim. Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); 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); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the individual with a disability to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Assuming arguendo that Complainant was a qualified individual with a disability, we conclude that the Agency did not fail to reasonably accommodate his disabilities. Our review of the record shows that Complainant was appointed to his position on January 7, 2018. On February 12, 2018, the Agency received Complainant’s request for reasonable accommodation. 2020000285 5 In his submission, Complainant requested that the Agency provide him with written instructions describing how to complete various functions of his job. On February 28, 2018, Complainant’s treating physician submitted a medical note dated February 21, 2018, supporting Complainant’s request for reasonable accommodation. The note stated that Complainant required written instructions and repetition to successful perform his duties due to difficulties with sustaining attention and completing tasks that are not well delineated. In response to Complainant’s reasonable accommodation request for written instructions, Complainant’s chain of command and trainers began providing him with written instructions detailing his daily tasks. See ROI at 223. S4 also told Complainant that she was willing to provide Complainant with additional clarification, if needed. Id. at 98. Complainant, however, found this accommodation to be inadequate. In response to Complainant’s concerns, management met with Complainant on March 20, 2018, to listen to his concerns and to ask him what additional tasks he needed written clarification on; however, Complainant was unable to identify any tasks needing clarification. Id. at 230. Management reiterated to Complainant that he could request written clarification anytime he needed. On April 18, 2018, S4 issued Complainant a reasonable accommodation determination letter, which granted Complainant’s request for written instructions. Id. at 236-237. However, Complainant initially refused to sign it because he did not feel that he had been accommodated. He ultimately signed the letter on May 1, 2018, allegedly under duress. Id. After careful consideration of the record, we find that the Agency did not improperly deny Complainant’s request for reasonable accommodation. To the contrary, we find that the record clearly shows that the Agency reasonably accommodated Complainant by providing him with written instructions regarding his daily tasks. ROI at 270-277. While we are mindful of Complainant’s contention that management refused to provide him with written instructions for every task imaginable because it would be “too many,” we find that Complainant has not persuasively shown how the provided instructions were deficient. To the extent that the written instructions from management were deficient or unclear, we find that the Agency cured that deficiency by inviting Complainant to seek clarification whenever he needed. As we noted above, protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. See Castaneda, supra. It is clear to us here that the Agency met this obligation. We turn now to claim c, wherein Complainant alleged that on May 21, 2018, management failed to accommodate his heat restriction. Having reviewed the record, we find no violation of the Rehabilitation Act, as our review of the record clearly shows that Complainant did not have an active medical restriction in place at the time of the incident. Indeed, by Complainant’s own account he stated that he met with his physician on May 25, 2018, approximately four days after the incident in the dishwashing room, to evaluate his condition. ROI at 57. On that date, after the dishwashing room incident, Complainant’s physician placed Complainant on heat restriction. Id. On May 29, 2018, Complainant received the removal memorandum, informing him that he would be removed from federal service, effective June 1, 2018. 2020000285 6 Because Complainant had no valid heat restriction in place at the time of the incident, we find that the Agency did not violate the Rehabilitation Act by denying his request to leave the dishwashing room. Disparate Treatment We turn now to claims a and d, which we will review under the legal standard for disparate treatment. For Complainant to prevail, he 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. Co. 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 804 n. 14. To establish a prima facie case of disability discrimination under a disparate treatment theory, Complainant must demonstrate that: (1) he is an “individual with a disability” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim a, S4 stated that she made the decision to issue Complainant the counseling letter because Complainant repeatedly failed to follow the correct procedures for serving patients thickened beverages despite receiving training on the subject. S4 explained that the counseling letter was intended to document Complainant’s “poor conduct” and to help him to improve. ROI at 96. The record reflects that Complainant’s third level supervisor (S3 - Food Service Operations Program Manager) physically handed S4’s counseling letter to Complainant. Id. As for claim c, concerning Complainant’s removal, S4 stated that she recommended Complainant’s removal to human resources because Complainant had conduct issues. S4 explained that “[a]s the service division manager, it [was her] responsibility to recommend termination when [she felt it was necessary].” ROI at 100. 2020000285 7 S4 emphasized that the female comparator whom Complainant named was not similarly situated to Complainant because that individual did not have any written counseling in her file for performance or conduct reasons. Id. S4 vehemently denied removing Complainant because of his disabilities. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In addition to the above noted contentions that he raised on appeal, Complainant argued that the counseling letter was pretext for discrimination because in early February 2018, S3 told him that she “detested veterans that needed to use their disability status to get jobs at the VA.” ROI at 55. Complainant stated that S3 detested such veterans because S3 believed that she “never had to use her disability to get ahead.” Id. Complainant maintained that he reported S3’s comments to management, but management did not take any action. Id. Complainant also asserted that he received only half of the required training, and that management did not give him additional training even though his trainers voiced concerns about his performance.5 In arguing pretext, Complainant named a female comparator, but he stated that he was unsure whether the comparator had a disability or any write ups. Id. at 59. As for his removal, Complainant denied engaging in misconduct. In this regard, Complainant stated that he was initially denied unemployment benefits because the Agency characterized his removal as misconduct based; however, when he appealed the denial, he was granted unemployment benefits because the Agency did not respond. ROI at 58. Complainant contended that his removal was a “fraudulent charge brought up by [S3 and S4]” to get a disabled veteran fired, and he maintained that management, in proposing his removal, did not make human resources aware of his disabilities. Id. at 59. Having reviewed the record, we find that Complainant cannot persuasively demonstrate pretext with regard to claims a and d. We find that the record clearly establishes that management had concerns about Complainant’s repeated failure to adhere to strict food service procedures. As such failures could have caused a patient to choke to death on a thickened beverage or suffer an allergic reaction, we find the Agency’s concerns to be valid. 5 One of Complainant’s trainers made the following comment about Complainant: “He needs to do a little less talking and more working. He thinks he knows everything and argues with you about it.” ROI at 277. 2020000285 8 While Complainant asserted that the Agency failed to adequately train him; our review of the record shows that the Agency assigned trainers to guide Complainant and provided him with written instructions regarding his daily tasks. Moreover, we note that the Agency counseled Complainant, both verbally and in writing, when he made mistakes and gave him time to improve. Despite these efforts, Complainant failed to demonstrate acceptable performance during his probationary period. The Commission has long held that an Agency has broad discretion in terminating an employee during their probationary period as long as it is not for discriminatory reasons. See Valencia L. v. Dep’t of State, EEOC Appeal No. 0120150419 (May 12, 2017). We find no such evidence here. In reaching this conclusion, we considered Complainant’s comparator; however, we do not find her to be similarly situated as the record reflects that the comparator did not have any performance or disciplinary issues. We also considered Complainant’s contention that S3 detested veterans; however, we note that S3 denied making such comment. For these reasons, we conclude that Complainant cannot prevail on claims a and d. To the extent Complainant contends that he was subjected to a hostile work environment based on claims a to d, we find that a finding of harassment is precluded on the remaining claims due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 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. 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). 2020000285 9 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. The court has the sole discretion to grant or deny these types of requests. 2020000285 10 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 20, 2021 Date