Sammy R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182665 (E.E.O.C. Dec. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sammy R.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182665

Hearing No. 450-2015-00095X

Agency No. 2003-0349-2014102869

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 July 16, 2018, final order
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. 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Veterans Service
Representative at the Agency’s Waco Regional Office in Waco, Texas. On June 14, 2013, the
Administrative Officer (AO) (Methodist) asked Complainant if he had a handicap placard, in
response to Complainant’s request for handicapped parking at the Agency. Complainant
responded that his disabled veterans license plate showed that he met all the requirements to park
in a handicap spot. AO informed Complainant that a veteran with a service-connected disability
of at least 50% may obtain a disabled veteran license plate; however, not all service-connected
disabilities limit an individual’s mobility.

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.
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AO stated that having a placard ensures that individuals with mobility impairments are properly
placed into a handicap parking space. Report of Investigation (ROI) at 106-8. Complainant stated
that he did not provide his placard, and that the Agency would not tell him where he was on the
waitlist for a parking spot. ROI at 182.

On January 13, 2014, Complainant met with his Assistant Coach and his first line supervisor
(S1) (Baptist) to discuss concerns with his leave balance; Complainant had 12.25 hours of annual
leave, and 2 hours of sick leave. Complainant’s managers noted that Complainant’s low
availability of sick leave was a cause for concern, and they encouraged him to build up his sick
leave balance. They also informed Complainant that the meeting was an informal counseling,
and that the next steps included a 90-day warning and then a sick leave restriction. ROI at 111.

Complainant stated that on January 16, 2014, he requested leave without pay (LWOP), but S1
charged him with six (6) hours of annual leave, and two (2) hours of sick leave instead. ROI at
192. Complainant stated that on January 22, 2014, the Assistant Services Center Manager
(ASCM) (Catholic) required him to provide a note from his doctor, and to contact his supervisor
for LWOP. ROI at 198.

On January 23, 2014, while a coworker (CW) was training Complainant, he stated twice that he
wanted to “blow this building up.” CW stated that Complainant informed her that he would make
sure that CW had enough time to get out of the building. Another coworker overheard the
conversation and confirmed that Complainant stated that he wanted to “blow this place up.” AO
contacted the local police and Complainant was arrested. ROI at 492-8.

Following this incident, the Regional Office Director (ROD)(Methodist) issued Complainant a
Temporary Change in Duty Station. Effective January 24, 2014, Complainant’s duty station was
changed to his home, until further notice pending a fact-finding. ROI at 499-500. On February
14, 2014, AO issued a report after conducting the fact-finding. Based on the evidence, AO
recommended that Complainant be charged with “endangering the safety of or causing injury to
anyone on VA premises” and/or “fighting, threatening, attempting, or inflicting bodily injury to
another.” AO noted that the penalties for first time offenses ranged from admonishment to
removal from federal service. ROI at 501-4.

On February 10, 2014, Complainant stated that S1 denied his request to work a flexible schedule.
Complainant stated that everyone who works from home can “flex,” and that he requested to flex
on Fridays to attend bible study, and ROD denied his request. Complainant then requested 1.5
hours of annual leave to attend the bible study. ROI at 210,213. Complainant stated that he was
forced to request sick leave, instead of LWOP, for medical appointments on March 6, and 10,
2014, April 28, and 30, 2014, and May 2,8, and 12, 2014. ROI at 214.

On March 4, 2014, Complainant was issued a Proposed Suspension for Making Statements that
Caused Anxiety and Disruption in the Workplace for fourteen (14) calendar days. On March 21,
2014, ROD issued a decision to sustain the suspension, effective April 6-19, 2014. ROI at 505-
7,510-11.
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On or about June 17, 2014, Complainant initiated a request for a printer at his workstation as a
reasonable accommodation, which was granted on August 27, 2014. ROI at 704,690. On August
4, 2014, the Agency implemented a new parking policy, which resulted in the elimination of the
waitlist and additional handicap parking spaces. Employees with a placard or a disabled veteran
license plate could park in a handicap parking spot on a first-come, first-served basis. ROI at
251,239.

EEO Complaint

On July 15, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of religion (Roman Catholic) and disability (degenerative disk disease)
when:

1. on June 14, 2013, AO refused to acknowledge Complainant’s disabled veterans
handicap license plate and required him to provide the placard in his car in order
to park in a handicapped space;

2. from June 2013, to the present, AO has not approved Complainant’s request for
closer parking and to be put on the handicap parking list;

3. on January 13, 2014, his supervisors verbally counseled him regarding his leave
usage, and threatened to put him on a sick leave restriction;

4. on January 16, 2014, S1 denied his request for LWOP, and charged him six (6)
hours of annual leave and two (2) hours of sick leave;

5. on January 22, 2014, ASCM required that Complainant provide a note from his
doctor and to contact his supervisor to be eligible for approval of LWOP;

6. on January 23, 2014, AO had the Waco Police Department arrest Complainant as
a terrorist for stating, “there are times when I just want to blow this damn building
up”;

7. on January 24, 2014, ROD issued Complainant a temporary duty station
reassignment letter;

8. on February 10, 2014, S1 denied Complainant’s request to work a flexible
schedule;

9. on February 10, 2014, S1 denied Complainant’s request for a religious
accommodation, and Complainant had to use one and one-half (1½) hours of
annual leave to attend a Bible study;

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10. on March 6, and 10, 2014, April 28 and 30, 2014, and May 2,8 and 12, 2014,
Complainant was forced to request sick leave, instead of LWOP, for medical
appointments;

11. on March 21, 2014, Complainant was issued a 14-day suspension, effective April
6-19, 2014; and

12. on July 31, 2014, Complainant’s request for a desk printer as an accommodation
was denied.2

The Agency noted that events 4,7,8, and 9 constituted discrete acts; however, they were not
raised within 45-days and dismissed as untimely.3 However, the Agency accepted claims 2, 11,
and 12, as timely raised discrete acts, in addition to Complainant’s overall claim of harassment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing.

On June 4, 2018, the AJ issued a Notice of Intent to Issue Summary Judgment, noting that there
may be no material facts in dispute. For claims 1 and 2, the AJ noted that Complainant did not
allege a failure to accommodate, but she treated them as such. The AJ found that the record
showed that Complainant was one of many employees with a mobility impairment, who were
placed on a handicap parking waitlist, and that he was number 11 out of 16 on the list. The AJ
noted that AO stated that the issue of the placard was not relevant because Complainant’s request
for a waiver would only have been addressed when he reached the top of the waitlist.

However, the Agency changed its policy, which eliminated the waitlist, and assignment was
made on a first-come, first-served basis. The AJ stated that employees who still had a parking
request were informed of the process to request a reasonable accommodation, and that
Complainant did not contact any individual to initiate a reasonable accommodation.

For claim 3, the AJ found that S1 stated that he meets with employees to inform them of the
consequences when their leave balances are too low, and that he gave Complainant advice to
rebuild his sick leave balance. The AJ determined that at no time was Complainant threatened
with a sick leave restriction.

2 Complainant was provided a desk printer on August 26, 2014, and he subsequently withdrew
this claim. ROI at 221.

3 We note that the Commission has the discretion to review only those issues specifically raised
in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). Complainant did not contest the Agency’s procedural
dismissal of these acts as untimely discrete claims of discrimination; as such, we will not address
them in the instant decision.
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For claims 4, 5, and 10, the AJ found that Complainant was informed of the process for LWOP,
and that he did not comply. Specifically, Complainant was required to provide medical
documentation to S1, who drafts and sends a memorandum justifying the LWOP to the Service
Center Manager for approval. For claim 4, Complainant called S1 to request LWOP, but the AJ
found that S1 did not possess the authority to approve Complainant’s LWOP request. The AJ
noted that Complainant’s future LWOP requests were approved, and to the extent that
Complainant complained about being charged sick leave, the evidence showed that pending the
approval of Complainant’s LWOP requests, he was charged with sick leave, in order to avoid
being considered absent without leave; however, once the LWOP was approved, Complainant’s
sick leave was credited back to him.

The AJ noted that claims 6-9, and 11, surrounded the incident when Complainant threatened to
blow up the building, and his subsequent arrest. The AJ stated that there was no evidence that the
Agency deviated from their policy with any other employee, and that while the criminal charges
were ultimately dropped, at the time the suspension decision was made, the charges were still
pending against Complainant.

Regarding the harassment claim, the AJ stated that Complainant did not provide facts to link his
protected traits to his allegation, and that he did not identify how any of the alleged incidents
affected a term or condition of employment or had the purpose or effect of unreasonable
interfering with his work environment. The AJ informed the parties that they had fifteen (15)
days to submit a response to her notice. Complainant submitted a timely response, but the
Agency did not respond.

The AJ issued a decision without a hearing on July 10, 2018. The AJ concluded that summary
judgment in favor of the Agency was appropriate because the record showed that Complainant
did not offer evidence that the Agency’s articulated reasons for its actions were pretext for
discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant did not prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at
Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue
a decision without a hearing, and the decision itself, will both be reviewed de novo). This
essentially means that we should look at this case with fresh eyes.

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In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the
Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether
intentional discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”).

Decision without a hearing

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
argues certain facts are in dispute. However, we find that even if these facts are in dispute, they
are not material because they do not affect the outcome of this case. As such, we find that the AJ
properly issued a decision without a hearing.

Failure to Provide Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002).

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“The term ‘qualified,’ with respect to an individual with a disability, means that the individual
satisfies the requisite skill, experience, education and other job-related requirements of the
employment position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the Agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p).

We note that an individual is not entitled to a reasonable accommodation when the disability or
need for accommodation is not obvious, and the person refuses to provide the reasonable
documentation requested by the employer. See Hunter v. Social Security Administration, EEOC
Appeal No. 0720070053 (Feb. 16, 2012). In this case, AO stated that while Complainant was
placed on the waitlist for a handicap parking space, he did not submit a copy of his placard. AO
stated that they required a placard, in lieu of medical documentation, to show that an individual
had a mobility impairment.4 Complainant did not provide a placard, and the record does not
show that Complainant provided any alternative medical documentation to support his parking
spot request. We find that Complainant did not provide the reasonable documentation requested
by the Agency, and as such, he did not show that he was entitled to a reasonable accommodation
in June 2013. ROI at 247,232-5.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

4 Complainant argues that in 2010, the state changed the law, and that a disabled veterans license
plate was the equivalent of a placard. However, AO stated in his affidavit, dated December 5,
2014, that this information only came to light at the Agency recently. ROI at 236.
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Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find
that the Agency proffered a legitimate, nondiscriminatory reason for issuing the 14-day
suspension. ROD stated that he decided to suspend Complainant because the investigation
revealed that Complainant “definitely made” the statement about blowing up the building, which
created anxiety in the workplace. ROD stated that AO recommended a reprimand, up to a
proposed removal, and that he decided that a 14-day suspension was appropriate. ROI at
368,370.

We find that Complainant has not shown that the proffered reason was pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. On appeal,
Complainant argues that there was no real threat and that his statements were not made in
earnest. However, we find that Complainant has not presented any evidence to show that ROD’s
reason for suspending him was not worthy of belief. It is undisputed that Complainant made the
statements, and ROD noted that Complainant’s statements were made approximately three (3)
months after the Navy Yard shooting, which caused “great concern.” ROI at 354. As such, we
find that Complainant did not establish that the Agency discriminated against him based on his
disability or religion when it suspended him for fourteen (14) days.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant's employment. See Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of
harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998).

Assuming, arguendo, that the verbal conduct occurred as Complainant described, and was based
on his protected classes, we find that in looking at the totality of the circumstances, Complainant
has not shown that the actions were sufficiently severe or pervasive that it resulted in an
alteration of the conditions of his employment. While Complainant argues that the Agency’s
actions had the purpose or effect of unreasonably interfering with his work environment, and
creating an intimidating, hostile, or offensive work environment, he did not specify how they
interfered with his work environment. Accordingly, we find that Complainant did not establish
that he was subjected to a hostile work environment based on his disability or religion.

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CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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“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

December 17, 2019
Date