Will K.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 20, 2016

0120140163 (E.E.O.C. Apr. 20, 2016)

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

Will K.,1
Complainant,

v.

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

Appeal No. 0120140163

Hearing No. 540-2012-00058X

Agency No. 200P05542011100899

DECISION

Complainant filed an appeal from the Agency’s final order dated September 17, 2013, finding
no discrimination with regard to 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, we AFFIRM the Agency’s final order finding of no
discrimination.

BACKGROUND

The record indicates that Complainant filed his complaint on March 14, 2011, alleging
discrimination based on race (Black) and disability in that he was treated in a disparate manner
when: (1) on November 30, 2010, management did not offer him assistance while he sustained
on the job injuries (torn knee cap and cut finger); (2) on November 20, 2010, he was issued a
termination letter, dated November 19, 2010, to be effective December 11, 2010; and (3) he
was subjected to harassment when in July, 2010, his coworker (C1) threatened him by stating,
“You don’t want to fuck with me because I’m going to put your ass down,” and on September
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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10, 2010, another coworker (C2) physically threatened him which resulted in a fact finding
investigation.

On April 14, 2011, the Agency dismissed claim (3) for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1). The Agency accepted claims (1) and (2) for investigation and after
the investigation, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Upon Complainant’s objection, on March 7, 2012,
the AJ determined that claim (3) stated a claim and reinstated the subject matter for discovery.
On August 29, 2013, the AJ issued a decision without holding a hearing, finding no
discrimination concerning the complaint. The Agency’s final order implemented the AJ’s
decision. On appeal, Complainant, other than filing a notice of appeal, does not submit an
appeal brief.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant began his employment
as a Nutrition Cook, WG-4, at the Agency’s Denver Medical Center on December 20, 2009,
subject to a one-year probationary period.

With regard to claim (1), Complainant claimed that he had a knee injury in 1985, while he was
in military service. Complainant’s supervisor indicated that he was not aware of
Complainant’s knee injury, he was not provided with any medical documentation concerning
such at the relevant time period at issue, and Complainant did not ask for accommodation for
the condition. Complainant does not dispute this.

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Complainant also claimed that on October 25, 2010, he injured his right, index finger while
slicing roast beef when his hand slipped into the slicer blade and he went to the emergency
room for the injury. He claimed that he was forced to work his regular shift without any
accommodation. The supervisor indicated that when Complainant sustained his finger injury,
his coworker assisted him to the emergency room, a staff physician treated the injury, and he
was released. On October 26, 2010, stated the supervisor, Complainant was assigned to a light
duty status in accordance with the physician’s instruction. Specifically, the supervisor stated
that due to his finger injury, Complainant was not able to perform the essential functions of his
position duties, i.e., putting away large food deliveries, doing a lot of cooking, working
around steam kettles, and prepping food items. The supervisor indicated that Complainant
was, thus, accommodated with limited duties, i.e., assisting in setting up the tray lines (after
the food was already prepared) so the food could be served. Complainant does not dispute
this.

The record indicates that due to the injury, Complainant had physical restrictions, i.e., 25 lbs.
of lifting/carrying intermittent and pushing/pulling. The record also indicates that Complainant
was accommodated due to his physical limitations with modified temporary duties to: set up
tray line, prepare meat/vegetables for consistency diets, bring items up from the ingredient
control room to main kitchen, work on the tray line, prepare soups/gravies/hot cereals, and
process tray tickets for tray line. Complainant does not dispute this.

In addition, we note that on December 4, 2010, Complainant reinjured his same finger while
setting up the serving line for the lunch meal. However, he did not report this incident to the
Agency until December 15, 2010, which was after his termination. Complainant does not
dispute this.

With regard to claim (2), the supervisor indicated that Complainant was terminated during his
probationary period due to his tardiness. The supervisor stated that Complainant was given
written counseling concerning seven instances of his tardiness in August, 2010, but the
tardiness continued and he ultimately made a recommendation to terminate him. The acting
supervisor concurred in the termination and the Human Resources Chief wrote the termination
letter at issue specifying fifteen instances of tardiness. Complainant does not dispute the
instances of tardiness indicated in the termination letter or show that similarly situated persons
were treated differently.

With regard to claim (3), Complainant claimed that he was subjected to harassment when in
July, 2010, C1 made the alleged threatening remark and on September 29, 2010, C2 asked him
about his work although C2 was not his supervisor. Specifically, Complainant claimed that C2
yelled at him about his work and when he in response asked C2, why did C2 think C2 was his
boss and why C2 was talking to him this way, C2 told him that, “It’s been awhile since I
knocked anybody out, we can go outside and take our chef’s coats off.” Complainant’s Cook
Lead, who witnessed the incident, indicated that on the date of the incident, he heard C2
saying to Complainant, “If you have a problem with me, come to me.” Complainant then said

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to C2 that, “You’re not my boss, quit acting like my boss.” C2 then said, “I just think we
need to work together.” Complainant then responded saying, “You don’t do anything; you’re
always on the phone.” The Cook Lead stated that when the voices between C2 and
Complainant got louder, not screaming, he told them, “Let’s not go there” in order to stop
their conversation. The Cook Lead indicated that Complainant took instructions well from him
but not from other Cooks. It appears that Complainant did not get along well with his
coworkers, C1 and C2. We note that Complainant does not indicate that Complainant was
subjected to a threatening remark from C1 or had any other verbal disagreement/controversy
with C2 on a different occasion other than the incident, described above.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that he was denied a reasonable
accommodation. With regard to his knee injury, there is no evidence that Complainant notified
his supervisor of this condition or requested a reasonable accommodation. With regard to his
finger injury, we agree with the AJ’s finding that there is no evidence that Complainant was
denied accommodation in that he was allowed to continue to work, light duty, in the food
service area. Complainant does not allege that he was required to perform his duties beyond
his medical restrictions. We find that Complainant failed to show that he was treated less
favorably than a similarly situated employee under similar circumstances or that the Agency’s
reason for terminating him during his probationary period was a pretext for discrimination.
With regard to his claim of harassment, we find that Complainant failed to establish the
severity of the conduct in question or that it was related to any protected basis of
discrimination. Based on the foregoing, we find that Complainant failed to show that the
Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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

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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.
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

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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

April 20, 2016
Date