Sonny M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120142970 (E.E.O.C. Mar. 11, 2016)

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

Sonny M.,1
Complainant,

v.

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

Appeal No. 0120142970

Hearing No. 530-2013-00107X

Agency Nos. 2004-0613-2012101976; 2004-0613-2012104733

DECISION

The Commission accepts Complainant’s appeal from the Agency’s July 16, 2014 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Food
Service Worker at the Agency’s VA Medical Center in Martinsburg, West Virginia.
Complainant suffers from Dysthymia, a form of depression. Complainant’s duties included
serving food and supplements to patients; cleaning equipment, floors, and tables; passing trays
on the food line; and loading a dish machine in the cafeteria. In April 2012, Complainant’s
supervisor (S1) conducted Complainant’s mid-year review. During the review, S1 noted that
Complainant performed his tasks slower than other employees. Complainant disagreed and
attempted to leave the review. S1 asked Complainant to stay to finish the review. Despite the
comments about the speed of Complainant’s work, S1 provided Complainant with a “Fully
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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Successful” rating. During the mid-year review, Complainant first told S1 that he had issues
which caused him stress and that being in stressful situations caused him to have migraines,
severe anxiety, depression, and sleeplessness. Complainant further explained that the fast pace
of the work in tray passing and working with the dish machine exacerbated these problems. In
2010, Complainant had told management that he was taking college courses and that the stress
of the courses and certain work assignments were too stressful. As a result, management
excused him from performing the pull-end duties on the dish machine. After the review
meeting, S1 sent an email to the Chief of Nutrition and Food Service regarding the mid-year
review meeting. S1 later asked Complainant if he had ever considered applying for a
reasonable accommodation and provided Complainant with a form to request one.

Sometime in April or May 2012, all Wage Grade 2 employees, including Complainant, were
required to rotate between the cafeteria and the main building. In addition, the employees
would receive training on tray passing. Complainant became agitated and upset while
performing tray passing duties, and management removed him from that task. The Chief
subsequently instructed S1 to require Complainant to complete a written request for
accommodation.

By July 23, 2012, Agency managers informed Complainant that he was to complete the
reasonable accommodation form and submit medical documentation in support of his request.
Complainant failed to provide the requested documentation in support of his reasonable
accommodation request. The only documentation Complainant provided to support his
reasonable accommodation request was a 2011 VA disability rating report that Complainant
redacted and submitted in August 2012. Complainant believed that he did not need to provide
medical documentation because he felt that the Agency had made an untimely request for the
information. Further, Complainant believed that the Agency did not acknowledge the correct
date on which he requested the accommodation.

On May 25, 2012, the Chief filed a violent incident report regarding an incident with
Complainant. The Chief reported that Complainant shook his finger in her face while accusing
her of stating that he was in a relationship with a co-worker. The Chief noted that
Complainant was very angry and red in the face during the incident. Complainant interpreted
the description of him as “red in the face” as a racial slur.

On June 9, 2012 Complainant filed a formal complaint (Agency No. 2004-0613-2012101976)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (Native American), sex (male), color, and disability when:

1. On April 11, 2012, he was given a mid-year performance evaluation that included
negative comments and failed to acknowledge professional accomplishments
achieved during the period; and

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2. An Agency manager referred to the color of his skin as “red.” 2

On October 19, 2012 (and subsequently amended), Complainant filed a second formal
complaint (Agency No. 2004-0613-2012104733) alleging that the Agency discriminated against
him on the bases of disability when:

3. On August 1, 2012, management refused to accept his email request for
accommodation, falsified the date of his request (June 4, 2012), and discontinued
interim accommodation effective August 6, 2012, when he failed to provide medical
documentation as requested; and

4. On September 19, 2012, he was denied reasonable accommodation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on April 24 and 25, 2014, and issued a decision on June 27, 2014.

In her decision, the AJ initially determined that Complainant failed to establish a prima facie
case of discrimination. Regarding his mid-year review, Complainant was unhappy with
comments made in the review which referenced his slowness in performing certain tasks.
Complainant felt that the reference to his speed of work discriminately referenced his
disability. The AJ determined that the record evidence did not support a finding that S1 was
aware of Complainant’s disability at the time that he gave the review. It was only after the
review was conducted that Complainant informed S1 that he had a disability. The AJ
concluded that Complainant’s fully successful rating did not constitute an adverse employment
action. The AJ noted that the only two rating designations were fully successful or less than
fully successful. As a result, the AJ found that Complainant was not harmed by receiving a
fully successful rating in his 2012 mid-year review.

With regard to his manager referring to him as being red in the face, the Chief filed a violent
incident report following a confrontation with Complainant. In the report, the Chief wrote that
Complainant was very angry and that his face was red. Complainant did not dispute that when
agitated or overheated, his face may become red. Further, there was no evidence that the
reference to the color his face was a reference to his Native American ancestry. Thus, the AJ
concluded that the remark, when evaluated in the context of a heated confrontation, was a
reference to Complainant’s manifested anger and agitation such as to justify the filing of
violent incident report.
2 The Agency dismissed several additional claims for failure to state a claim and untimely EEO
counselor contact. Complainant submitted a motion for reconsideration to the AJ to reinstate
the dismissed claims; however, the AJ denied the motion. On appeal, Complainant challenges
the AJ’s denial of his motion for reconsideration of the Agency’s dismissal. Upon review, the
Commission finds no basis to disturb the AJ’s order denying the motion.

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In addition, Complainant alleged that he was discriminated against when his manager alleged
that he was in a relationship with a co-worker. The AJ determined that there was no evidence
of discriminatory animus with respect to rumor or innuendo concerning a workplace romance.

Finally, the AJ found that the record evidence did not support a finding that the Agency denied
Complainant’s requests for reasonable accommodation. Rather, the record revealed that
Complainant was informally accommodated beginning in 2010 and in 2012, when the Agency
sought to formalize the accommodation, Complainant failed to cooperate by refusing to provide
proper medical documentation. Complainant acknowledged that the only medical information
he provided to the Agency was a heavily redacted 2011 VA disability rating. This document
did not provide information concerning Complainant’s diagnosis, the proposed reasonable
accommodation, and the manner in which the provided accommodation would assist him in
performing the essential duties of his job. During the time that the Agency waited for
Complainant to provide appropriate medical documentation, he was provided with reasonable
accommodation. Complainant acknowledged that the Agency provided him with an
accommodation, but that his objective was to have the Agency commit the reasonable
accommodation to written form. Thus, there is no evidence that Complainant was actually
denied reasonable accommodation. As a result, the AJ found that Complainant had not been
discriminated against, subjected to a hostile work environment, or denied reasonable
accommodation as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the form S1 provided to request reasonable
accommodation did not comply with the Agency’s written policy. Further, Complainant
argues that he was not required to submit the form to receive an accommodation and the
Agency failed to timely respond to his request in writing. Complainant alleges that several
Agency officials committed perjury and that their testimony is not credible. Additionally,
Complainant contends that the documentation he submitted was the only documentation
available and was sufficient. Complainant emphasizes that the Agency was required to provide
a written confirmation of the accommodation in order to complete the process and that for
official purposes, he was not being provided with a reasonable accommodation. Accordingly,
Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.

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See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Hostile Work Environment

Turning to the merits of the instant complaint, the Commission notes that to establish a claim
of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2)
he was subjected to harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on his statutorily protected
classes; (4) the harassment affected a term or condition of employment and/or had the purpose
or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions
of [complainant's] employment and create an abusive working environment.” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment 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. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant alleged that based on his protected classes, management subjected him to a
hostile work environment as evidenced by multiple incidents. The Commission finds that the
record does not show that the Agency subjected Complainant to a discriminatory hostile work
environment. Moreover, even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory animus. The record reflects that the alleged incidents
were more likely the result of routine supervision, managerial discipline, personality conflicts,
and general workplace disputes and tribulations. For example, S1 rated Complainant as “fully
successful” in his mid-year rating, but simply noted that Complainant’s work speed lagged
behind other employees. Hr’g Tr., Vol. 1, at 100-01. S1 noted that Complainant could only
be rated as “less than fully successful” or “fully successful.” Id. at 100. S1 did not know that
Complainant had a medical condition or would possibly need an accommodation until this mid-
term rating meeting. Id. at 118-21.

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With regard to the Chief’s reference to the color of Complainant’s skin as red in the violent
incident report, substantial record evidence supports that the Chief’s comment was simply a
description of Complainant’s appearance of anger and not a slur. Hr’g Tr. Vol. 1, at 23.8.

In addition, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency's reasons for its actions
were a pretext for unlawful discrimination. As a result, the Commission finds that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

Denial of Reasonable Accommodation

Under the Commission's regulations, 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) and (p). The Commission will assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

Upon review, the Commission finds that substantial evidence in the record supports the AJ's
finding that the Agency did not deny Complainant a reasonable accommodation. S1 and the
Chief testified that in December 2010, Complainant experienced difficulty with the pull end of
the dish machine; therefore, management removed that assignment from his duties. Hr’g Tr.,
Vol. 1, at 132, 186-87. Subsequently, in April or May 2012, employees began rotating
between the cafeteria and the main building. Management observed that Complainant became
visibly upset performing tray passing duties. Id. at 187-88. As a result, management excused
Complainant from performing tray passing duties. Id. at 188-89. Additionally, management
requested that Complainant submit a written reasonable accommodation request and submit
medical documentation in support of his request. Even though Complainant failed to submit
sufficient medical documentation, the Agency continued accommodating Complainant by
continuing to excuse him from the dish machine and tray passing duties.

Complainant objected to dates on his request for accommodation paperwork, and claims that
the Agency did not accommodate him by failing to provide him written confirmation of the
granted accommodations. Substantial record evidence supports that the Agency accommodated
Complainant by first removing his duties on the pull end of the dish machine in 2010, and by
removing the tray passing duties in May 2012, while awaiting his submission of medical
documentation in support of his request. An employer is not required to provide the precise
accommodation the employee or applicant wants, so long as the accommodation offered is an
effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S.
391, 400 (2002). Complainant has not offered any evidence that the granted accommodations
were ineffective. Therefore, the Commission finds that substantial record evidence supports
the AJ's finding that Complainant failed to show that the offered accommodations were
ineffective. Accordingly, the Commission finds that Complainant was not denied reasonable
accommodation in violation of the Rehabilitation Act.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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.

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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

March 11, 2016
Date