0120110544
09-23-2013
Amie H., Complainant v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Amie H.,
Complainant
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110544
Agency No. 2004-0590-2009104244
DECISION
Complainant timely filed an appeal from the Agency's September 16, 2010, final decision concerning her 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that the Agency subjected her to discrimination on the bases of disability and reprisal when it did not select her for promotion to a Supervisory Social Services Assistant, GS-0186-8, position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse in the Primary Care Center at the Agency's Veterans Affairs Medical Center in Hampton, Virginia. On September 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when:
1. on or about July 6, 2009, she learned that she was not selected for the Supervisory Social Services Assistant, GS-0186-8, position advertised under Job Announcement Number 171-09 because her supervisor gave her a negative job reference; and
2. on or about July 15, 2009, she learned that management violated her privacy when management received her medical information and forwarded this information to the Human Resources Department without her permission, to build a case that she is not fit for duty.
By letters dated November 9 and 16, 2009, the Agency accepted claim 1 for investigation but dismissed claim 2 on the ground that Complainant did not bring the allegation to the attention of an EEO Counselor in a timely manner. Report of Investigation (ROI) Exhibit (Exh.) A-6. Complainant has not appealed the dismissal of claim 2.
The investigation disclosed that Complainant previously contacted an EEO Counselor on January 6, 2004, December 3, 2004, and December 19, 2008, and filed formal EEO complaints on February 1, 2005, and March 3, 2009. Id. Exh. C-5. According to the EEO Counselor's Report, the previous formal complaints alleged race discrimination. Id. Exh. A-1.
On February 9, 2009, the Agency announced a vacancy for a Supervisory Social Services Assistant, GS-0186-8, to supervise Social Services Assistants and Domiciliary Administrative Assistants. Id. Exh. C-3. Complainant applied for the position and was one of two qualified applicants named to the Noncompetitive Merit Promotion Certificate. Id. Exh. C-4. A third applicant was named to the Competitive Merit Promotion Certificate. Id. A three-member selection panel that interviewed the noncompetitive applicants gave Complainant a combined score of 130 and the other applicant (Applicant 2) a combined score of 125. Id. On March 30, 2009, the Selecting Official, the Chief of Mental Health (SO), decided not to make a selection from the Certificates. Id. According to the Vacancy Tracking Sheet, the Agency notified the applicants that they were not selected for the position on December 15, 2009. Id.
Complainant sent March 26 and 30, 2009, e-mails asking to meet with the Acting Mental Health Social Work Manager (RO) to discuss the vacant position. ROI Exh. C-6. In an April 13, 2009, e-mail, Complainant asked RO to explain why she had not been selected for the job so she could "be prepared if that job or a similar job presents itself." Id. A-4 (Formal Complaint Attachment 4). Subsequently, in an April 16, 2009, e-mail to a Human Resources (HR) Specialist, Complainant noted that RO had not responded and asked what to do if the HR Specialist could not locate the paperwork from Complainant's interview. Id. (Attachment 5). The HR Specialist replied that she was working on the matter. Id. On May 19, 2009, Complainant asked, among other questions, when the vacancy was first announced and when the Certificate was re-submitted to RO. The HR Specialist replied that another HR representative had told her "that there is more investigation that is going to occur." Id. Exh. C-6. Complainant again inquired about the status of the vacancy on May 26, 2009, and was told on May 28 that the position was still open. Id. In a June 9, 2009, e-mail to the Assistant HR Chief, Complainant asked for clarification because she had been told both that a selection had been made and that a decision not to fill the position had been made. Id.
In a June 9, 2009, memorandum to SO concerning a "Review of Hiring Decision for Supervisory Position," the Assistant Chief of the Domiciliary Residential Rehabilitation Treatment Program (Assistant Chief) addressed whether Complainant should be selected for the vacant supervisory position. The memorandum stated:
To make determination Assistant Chief met with veteran's immediate supervisor [sic]. The following areas were addressed:
a) Time and Leave. It was reported that candidate has taken over 400 hours of leave last year. Candidate also has AWOL'S on her record.
b) Work Habits: Reported to be Mediocre
c) Relationship with Peers: Appears to get along with peers
d) Relationship with Supervisor: Some disciplinary issues with supervisor
e) Performance: Prior Performance issues
f) Leadership Skills: Has completed MAP Program but has not taken the initiative to take advantage of opportunities that are available in her unit. (i.e. enrolling in school to continue education)
g) Rehire Potential: If candidate left and put in to return would not rehire.
Noting that the position required someone who could be a role model, had strong leadership skills, could react to crises in a professional manner, and could maintain professional relationships with staff and supervisors, the Assistant Chief concluded that Complainant would not be the ideal candidate for the vacant position. Id. Exh. C-8.
On April 7, 2009, Complainant's first-level supervisor, the Nurse Manager of Primary Care (S1), issued Complainant a counseling letter stating that he met with Complainant and her union representative on April 2, 2009, to discuss Complainant's time and attendance. The letter stated that Complainant had been charged with being absent without leave (AWOL) on January 15 and 16 and March 4, 5, 6, 11, 12, and 13, 2009.1 The letter also stated, "You have requested Leave without Pay for an incapacitating job-related injury or illness and is [sic] awaiting adjudication of a claim for employee compensation by the Office of Worker's Compensation Program. You never provided any documentation to your supervisor to support this request." In addition, the letter advised Complainant that leave requests that exceeded her leave balance would result in AWOL charges until management received and accepted proper paperwork. Id. Exh. C-8.
RO told the EEO Investigator that she initially recommended that SO not select an applicant because there were only two candidates and RO wanted the people who were currently working in the Domiciliary to have an opportunity to apply for the position. Id. Exh. B-4 at 10-11. She wanted to set the position at the GS-7 level to open the applicant pool to more people, including the Domiciliary workers who were at the Grade-6 level. Id. at 11. There was a delay in getting approval for the GS-7 position description, however, so RO recommended that SO select Applicant 2 for the position. Id. RO stated that Applicant 2 was the best-qualified candidate because he was working in a Domiciliary in a different city, had years of experience, was already at the GS-8 level, and was accustomed to supervising veterans in a residential setting. Id. at 11-12, 15. According to RO, Applicant 2 declined the position. Id. at 12. The Agency subsequently re-announced the vacancy as a GS-7, target 8, position. Id. at 16.
RO stated that she asked the Assistant Chief to meet with S1 to obtain a reference for Complainant. Id. at 17-18. She did not know whether the Assistant Chief talked to anyone else about Complainant. Id. at 18. RO stated that she was not aware of Complainant's disability or prior EEO activity. Id. at 7-8.
Similarly, SO stated that she was not aware of Complainant's disability or prior EEO activity. Id. Exh. B-3 at 7-8. She confirmed that RO initially recommended that SO not select any of the applicants for the position and that the Agency re-announce the vacancy as a GS-7, target 8, position. Id. at 9-10. Because the re-announcement process was taking so long, they reconsidered the two applications and offered the position to Applicant 2. Id. at 10. SO stated that Applicant 2 was more qualified than Complainant because of his experience working as a Social Science Specialist in a Domiciliary. Id. at 13. SO and RO reconsidered Complainant after Applicant 2 declined the position. Id. at 10. They did not select Complainant for the position because "the supervisory input that was received was a negative and the recommendation [was] that the supervisor would not rehire this person." Id. at 11. According to SO, the Assistant Chief verbally discussed the supervisory input with her and then gave her a memorandum. Id. at 15. SO stated that RO told her that Complainant had issues with performance, time and attendance, and attitude. Id. SO also stated that the Assistant Chief "was basically seeking information from [Complainant's] supervisor who she said did not give her a positive evaluation based on the information that she received." Id. When asked if there was any other way the Assistant Chief could have obtained the information, SO replied, "I don't know how else she could have gotten it." Id. at 16.
In her January 29, 2010, interview with the EEO Investigator, the Assistant Chief stated that, in June, she was asked to look into why Complainant was not selected and to write a memorandum saying whether she would recommend Complainant for the position. Id. Exh. B-8 at 8-9, 13. She stated that she "talked to people in the department and this person's supervisor [and] asked questions that [she] thought was [sic] public record about time and attendance, leadership skills and rehire potential." Id. at 9. The Assistant Chief concluded that Complainant "was not the ideal candidate based on information [that she] received from input from people." Id. at 10. The Assistant Chief, who spoke to the EEO Investigator from home and did not have her notes with her, recalled meeting with S1 to discuss Complainant. Id. She told the EEO Investigator, "From what I remember, [S1] told me that he would not rehire her and I believe the time and attendance. I don't recall everything we discussed. . . . I know we discussed the rehire potential. That was one of the biggest things and that is all I remember clearly." Id. When the EEO Investigator asked if there were other sources of information, the Assistant Chief replied, "Yes; just general people that worked with her, but I don't remember exactly who they were. I spoke to people in my department or to anybody who knew her, knew of her." Id. at 11. She could not remember whether the other sources were S1's boss or Complainant's co-workers. Id. Similarly, she could not remember how she obtained information about Complainant's leave usage and AWOL charges. Id. at 12. The Assistant Chief stated, "I don't think I could have accessed that information. . . . I mean somebody had to tell me that because I don't have access to her time and leave." Id. She also stated that she was not aware of Complainant's disability or prior EEO activity. Id. at 7, 14.
S1 denied that he told the Assistant Chief that Complainant had taken more than 400 hours of leave and had been on AWOL. Id. Exh. B-2 at 17. He did not know how the Assistant Chief learned of Complainant's leave usage and AWOL. Id. S1 also denied that he responded to the Assistant Chief's questions about Complainant's work habits, relationship with peers and supervisors, performance issues, and leadership skills. Id. at 17-18. He stated that he told the Assistant Chief that the only question he would answer was whether he would rehire Complainant and that the answer was "no." Id. at 15-16. S1 also stated that, although he did not give the Assistant Chief a reason for his answer, he subsequently told Complainant that he would not rehire her because of her time and attendance. Id. at 20, 32.
With respect to Complainant's time and attendance, S1 told the EEO Investigator that Complainant had exhausted all of her sick and annual leave. He stated that he disagreed with his former supervisor's practice of allowing employees who had exhausted their sick leave to use annual leave in lieu of sick leave. According to S1, "on several occasions once her reasonable accommodations were met, [Complainant] seemed to just call up and say she is not coming to work today and would not come." S1 stated that he did not believe in granting unscheduled leave without documentation, that Complainant did not state why she was requesting leave, and that he did not know if the leave requests were related to her disability. Id. at 20-21.
S1 stated that Complainant was charged with AWOL in January and March 2009 because she either did not go through S1 or was asked to submit a request for LWOP but did not do so. Id. at 29. He also stated that he explained to Complainant on several occasions that the "nurse executive" processed LWOP requests. Id. S1 stated that, from March 2008 through March 2009, Complainant used 347 hours of leave, including 16 hours of AWOL. Id. at 30-31. S1 did not know whether the leave usage was related to Complainant's disability, id. at 31, and he could not recall whether Complainant explained if her leave usage was related to her disability when he counseled her about her leave in April 2009, id. at 23. Because her sick leave usage was sporadic, Complainant was not required to provide documentation explaining why she was off work. Id. at 31.
S1 told the EEO Investigator that Complainant requested reasonable accommodation in October 2008 and that she "has not been very approachable by management" because she felt that her needs were not being met. Id. at 7-8. He stated, "It was approved, but in her current working conditions it felt that she was being accommodated, which she did not appreciate. So from that time on, it has been very difficult for management." Id. at 7. He stated that he facilitated the process by getting Complainant's paperwork. Id. at 8. According to S1, he gave Complainant the paperwork that she needed to submit to the Human Resources and Occupational Health Departments and then "was asked to look at her limitations and based on her performance standards, whether or not she could still do the job she was hired for in the setting she worked." Id. at 8-9. When the EEO Investigator stated that Complainant believed that the reasonable accommodation request "became a thorn," S-1 stated that he did not know why Complainant would believe that and that he had helped Complainant to process the paperwork. Id. at 36. S1 further stated:
What happened was, when HR told me that I had to tell her that she was being reasonably accommodated, and no further actions were necessary, she could not accept that. She went off on me. And I had to call security because she was throwing things in the room, shouting, slamming doors. . . . And I always felt like I had been set up because I told HR that was the last time I will ever tell an employee something that to me was their responsibility.
Id. at 36-37.
According to S1, Complainant requested advanced sick leave in May or June 2009 to try new medication for pain management. Id. at 11. All requests for advanced sick leave and LWOP must go through the employee's immediate supervisor, and S1 was privy to the documentation that supported Complainant's request. Id. at 11-12.
S1 confirmed that he gave Complainant a very favorable appraisal when Complainant applied for a different position in June 2008. Id. at 33; see also id. Exh. C-6 (June 30, 2008, Supervisory Appraisal of Employee for Promotion in which S1 gave Complainant the highest ratings in five categories and stated "unable to appraise" in the sixth category). He stated that he rated Complainant "excellent" in fiscal year 2008 and "fully successful" in fiscal year 2009. Id. Exh. B-2 at 33-34. When the EEO Investigator asked why S1 stated in the reference that he would not rehire Complainant, S1 replied that Complainant had run unsuccessfully for union president in Summer 2008 and that her work ethic had changed. Id. at 35. He asserted, "And that is when she - this reasonable accommodation started a couple months later. And it has just been - she has been different since then." Id.
S1 stated that he became aware of Complainant's disability in November or December 2008 when he was asked to review Complainant's reasons for requesting reasonable accommodation. Id. at 9. He subsequently stated that he became aware of her disability when she requested reasonable accommodation in October 2008. Id. at 31. He believed that Complainant could not be subjected to prolonged standing because of neuropathy. Id. at 9-11. He also stated that he was aware that Complainant filed an EEO complaint against him in March 2009 concerning his recommendation that she be suspended for an outburst and being disrespectful to him in front of patients and staff. Id. at 13. He was not aware of other EEO activity by Complainant. Id. at 14.
When asked whether he had anything to offer with respect to resolving Complainant's complaint, S1 responded that Complainant had sent several e-mails demanding a transfer to another position because she could no longer work for S1. He found it "disheartening" that he could not approach Complainant "without feeling that there is hostility there." S1 stated, "I have over 80 people that I supervise and to have one individual state that I am discriminating against them when I am sure - I am a veteran, too." He was sure other disabled veterans worked under his supervision but they did not tell him, "I am a disabled veteran, you are treating me different[ly] than you are treating somebody else." S1 further stated, "It is disheartening that you know, that this individual, you know, and we all make choices, but I think she is going about the wrong way to have things her way, the way she wants them." Id. at 40-41.
Complainant told the EEO Investigator that she has had bilateral neuropathy and bilateral myositis since 1989. Id. Exh. B-1 at 7. It is a permanent condition, id. at 8, and Complainant experiences "a lot of pain" with increased walking, id. at 10. When she takes medication for the pain, Complainant experiences sleepiness, dizziness, and an inability to concentrate. Id. at 11.
Complainant also told the EEO Investigator that S1 became aware of her disability in October 2008, when she requested reasonable accommodation. Id. at 17. She stated that she contacted an EEO Counselor on December 19, 2008, because the Agency had not given her a reasonable accommodation. Id. at 18; see also id. Exh. C-5 (CATS Search record showing that Complainant contacted an EEO Counselor on December 18, 2008, and filed a formal EEO complaint on March 3, 2009); but see id. Exh. A-1 (EEO Counselor's Report stating that the March 2009 complainant alleged race discrimination). According to Complainant, the Human Resources Department arranged for S1 to meet with Complainant on January 20, 2009, to explain her reasonable accommodation. Id. Exh. B-1 at 19. Complainant asserted that S1 told her that he saw her at the smoke shack and canteen and asked why she needed a reasonable accommodation. Id. She stated that she asked S1 to leave her office "because he was pretty much saying he did not believe [she] had a disability," S1 would not leave, and that she yelled at him. Id. at 39. S1 had the police escort Complainant out of the building. Id. at 52.
Although the Agency allowed her to sit down every ten minutes as an accommodation, Complainant believed that the accommodation was unreasonable because it was impossible to do that while working in a clinic setting. Id. at 8-9, 13. She stated that no one could explain the accommodation to her, and she questioned how she could sit every ten minutes in the clinic. Id. at 45.
Complainant stated that she inquired about the status of the Supervisory Social Services Assistant vacancy on May 28, 2009, and that a Human Resources representative told her that the Agency had offered the job to an outside candidate. Id. at 27. In July 2009, she met with SO and learned that the selectee had turned down the job offer and that S1 had given Complainant a negative reference. Id. at 29-30. Complainant stated that she then met with S1, S1 told her he had said he would not rehire her, she told him that he knew she had been absent because of her disability, and he suggested that SO was privy to Complainant's time and attendance. Id. at 31. According to Complainant, the Agency re-announced the vacancy at the GS-7 level and chose someone who worked in the Domiciliary for the position. Id. at 31-32.
Complainant stated that, because she did not have any sick leave, she asked for annual leave in lieu of sick leave. Id. at 34. She asserted that, although S1 denied her requests and marked her AWOL, the matter was straightened out and S1 could not charge her with AWOL. Id. at 34-35. Complainant stated that she requested leave without pay because her legs hurt and the Agency was not accommodating her. Id. at 37. According to Complainant, she was absent because of her disability. Id. at 50.
Complainant asserted that her relationship with S1 started to deteriorate when she asked for reasonable accommodation and got worse when she filed an EEO complaint. Id. at 42-44. With respect to S1's assertion that Complainant's demeanor changed because she lost a union election, Complainant stated that the election occurred in 2007 and she was not upset about it. Id. at 38-39. Complainant also stated that the written counseling letter was removed from her record because S1 was inappropriately charging her with AWOL when he knew that she was going to the employee assistance program. Id. at 44-45.
Complainant did not assert that she was more qualified than Applicant 2 but argued, instead, that she should have been offered the Supervisory Social Services Assistant position after Applicant 2 turned it down. Id. at 49. Because she has put in her paperwork for retirement, Complainant did not ask to be placed in the position. Instead, she requested front pay, back pay, and compensatory damages. Id. at 53.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision
In its final decision, the Agency concluded that it had not discriminated against Complainant. The Agency found that Complainant was an individual with a disability because her medical condition substantially limited her major life activity of standing. In addition, noting that Complainant performed the essential functions of her position, the Agency found that Complainant was a qualified individual with a disability.
The Agency further found that Complainant had established a prima facie case of discrimination based on disability by demonstrating that she was a qualified individual with a disability, that she applied and was qualified for the Supervisory Social Services Assistant position, and that the Agency selected someone outside of her protected group. Similarly, the Agency found that Complainant had established a prima facie case of discrimination based on reprisal. In that regard, the Agency noted that Complainant participated in prior EEO activity when she filed a March 3, 2009, complaint, that S1 was aware of the prior EEO activity, that S1 "effected action that adversely impacted" Complainant when he gave her a negative reference, and that S1's action occurred within a time frame that gives rise to an inference of reprisal.
In addition, the Agency concluded that it had articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that S1 stated that he told the Assistant Chief that he would not rehire Complainant but did not provide a reason to the Assistant Chief. The Agency also noted that S1 testified that he could not state that Complainant's leave usage was related to her disability because she would not state why she was sick or what was going on when she called in for leave. Further, according to the Agency, the Assistant Chief did not state definitively that she obtained Complainant's time and attendance information from S1. Finally, the Agency noted that SO testified that she did not select Complainant because of the negative information about Complainant and the negative input that S1 provided.
The Agency found that Complainant failed to demonstrate that the Agency's articulated reasons were pretextual. Concluding that the record was inconclusive about whether S1 discussed Complainant's attendance with the Assistant Chief, the Agency rejected Complainant's assertion that S1 retaliated against her by not telling the Assistant Chief that her leave usage was related to her disability. Further, assuming that S1 gave Complainant's attendance information to the Assistant Chief, the Agency found that Complainant failed to dispute S1's testimony that he did not know that her leave usage was related to her disability because she did not provide information about why she requested leave. Noting that S1 issued the April 7, 2009, written counseling to Complainant, the Agency concluded that he provided the negative reference because of a good-faith evaluation of her leave usage rather than because of her disability or prior EEO activity. The Agency found no evidence that SO's decision not to select Complainant was motivated by Complainant's disability or prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that S1 retaliated against her by giving her a negative reference. She notes that S1 gave her an excellent supervisory appraisal when she applied for a different job in June 2008 and that the Assistant Chief did not assert that she had spoken with anyone other than S1 until after Complainant filed the current complaint. Complainant also notes that the Agency did not obtain a reference for the selectee.
Further, Complainant reiterates her assertion that the counseling letter was removed from her record because S1 inappropriately charged her with AWOL when she was going to the employee assistance program. She asserts that S1 was aware of the AWOL removal before he gave the negative reference. In addition, Complainant argues that S1 required her to explain why she wanted to use annual leave in lieu of sick leave even though he knew that she did not have any sick leave to use. According to Complainant, S1 required her to call in to explain why she was out and "continued to mark [her] AWOL because [she] would not produce to him a doctor's note." She attaches a copy of the Agency's leave policy and argues that S1's actions violated the policy.
In response, the Agency argues that Complainant has provided no evidence that S1's reference was based on her disability or prior EEO activity. Noting that S1 testified that he did not provide a reason why he would not rehire Complainant, the Agency argues that Complainant has failed to establish a causal connection between the reference and her disability or prior activity. The Agency also notes that it is undisputed that SO was not aware of Complainant's disability or prior activity.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 28 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 Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "required that the Commission examine the record without regard to the factual and legal determination 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
In the absence of direct evidence of discrimination, the allocation of burdens of proof in a disparate-treatment claim follows 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The anti-retaliation provisions of Title VII and the Rehabilitation Act protect those who oppose discriminatory employment practices as well as those who participate in the EEO process. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8-III.B. (May 20, 1998) (EEOC Compliance Manual on Retaliation). Participation occurs when an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Id. � 8-II.C. A complaint or protest about alleged employment discrimination constitutes opposition to discrimination. Id. � 8-II.B. A person is protected against retaliation for reasonably opposing perceived discrimination if he or she had a good-faith belief that the challenged practice was unlawful, regardless of whether the practice ultimately is found to be unlawful. Id. � 8-II-B.3. Participation is protected regardless of the validity or reasonableness of the underlying complaint. Id. � 8-II.C.2.
A request for reasonable accommodation constitutes protected activity. Id. 8-II.B.2. A request for an adjustment or change at work, including a request for leave, is a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice 915.002, at Question 1 (Oct. 12, 2002) (Enforcement Guidance on Reasonable Accommodation); see also id., n.19 (citing McGinnis v. Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that accommodation had been requested because: (1) employee told supervisor that his pain prevented him from working and (2) employee had requested leave under the Family and Medical Leave Act)). An employer may not penalize an employee who missed work during leave taken as a reasonable accommodation. To do so would constitute retaliation for the employee's use of a reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 19.
In this case, we find that Complainant has established a prima facie case of reprisal by presenting facts that give rise to an inference of discrimination. Complainant engaged in protected activity when she contacted an EEO Counselor on January 6, 2004, December 4, 2004, and December 19, 2008, and filed formal EEO complaints on February 1, 2005, and March 3, 2009. She also engaged in protected activity when she requested reasonable accommodation in October 2008. Further, given Complainant's testimony that she was absent because of her disability, ROI Exh. B-1 at 50, we find that she engaged in protected activity when she asked for leave without pay or annual leave in lieu of sick leave.
The Agency subjected Complainant to an adverse action when it did not select her for the Supervisory Social Services Assistant position. Although SO, RO, and the Assistant Chief testified that they were not aware of the EEO activity, id. Exhs. B-3 at 7-8, B-4 at 7-8, B-8 at 7, 14, S1 acknowledged that he knew about Complainant's March 3, 2009, formal complaint and her requests for reasonable accommodation, id. Exh. B-2 at 7-8, 13. The Agency's decision not to select Complainant for the position occurred in such close temporal proximity to Complainant's continuing requests for reasonable accommodation, December 2008 EEO Counselor contact, and March 2009 formal complaint as to demonstrate a causal nexus between the protected activity and the adverse treatment.
SO stated that she did not select Complainant for the position because of the negative supervisory input and S1's statement that he would not rehire Complainant. Id. Exh. B-3 at 11. For the reasons explained below, we find that a preponderance of the evidence of record establishes that S1 gave Complainant the negative reference because of her prior EEO activity. Accordingly, we find that the Agency has failed to articulate a legitimate, nondiscriminatory reason for its action.
The record establishes that Complainant's request for reasonable accommodation affected her relationship with S1. Both Complainant and S1 acknowledged that their relationship deteriorated when Complainant requested reasonable accommodation. Id. Exhs. B-1 at 43-44 (Complainant statement that relationship started to deteriorate when she requested reasonable accommodation and got worse when she filed EEO complaint), B-2 at 7 (S1 statement that the relationship changed since Complainant requested reasonable accommodation because Complainant felt that the Agency was not meeting her needs). Although S1 denied that Complainant's request "became a thorn," id. Exh. B-2 at 36, he acknowledged that Complainant was not satisfied with the accommodation the Agency offered her. Id. at 7-8 (stating that Complainant "has not been very approachable by management" since she filed a reasonable accommodation claim and felt that the Agency did not meet her needs); id. at 36 (noting that Complainant could not accept that she was being accommodated and no further actions were necessary).
Moreover, S1 expressly testified that he felt as if he "had been set up" and that he "told HR that was the last time [he] will ever tell an employee something that to [him] was their responsibility." Id. at 37. This testimony demonstrates, at a minimum, that S1 was not happy to be involved in the attempt to respond to Complainant's request for reasonable accommodation. In addition, S1's objection "to hav[ing] one individual state that [he is] discriminating" and his claim that Complainant "is going about the wrong way to have things her way," id. at 41, further demonstrate that S1 took exception to Complainant's exercise of her rights. Even if S1's latter statement were meant to refer only to Complainant's e-mails requesting a transfer, it nonetheless evinces a lack of regard for Complainant's statutory rights and open hostility toward Complainant's EEO activity. We find that S1's testimony, when viewed in its entirety, demonstrates that S1 harbored a retaliatory animus against Complainant.
Further, we do not find credible S1's assertion that he did not respond to the Assistant Chief's questions about Complainant's time and attendance, work habits, performance issues, and other matters. The Assistant Chief's June 9, 2009, memorandum specifically notes that those matters were addressed in her meeting with S1. Id. Exh. C-8. Although the Assistant Chief subsequently testified that she spoke with "general people" who worked with Complainant, she could not identify the people or their positions. Id. B-8 at 11. She believed that she discussed Complainant's time and attendance with S1, but she could not remember how she obtained information about Complainant's leave usage and AWOL charges. Id. at 10, 12. We find that the memorandum, which was contemporaneous with the meeting and does not refer to any sources other than S1, is a more reliable summary of the meeting than the Assistant Chief's subsequent, less-detailed testimony. In addition, even if S1 told the Assistant Chief only that he would not rehire Complainant and did not explain the reasons for his statement, he nonetheless gave Complainant a negative reference. Based on the record before us, we find that the negative reference was motivated by retaliatory animus.
Although SO was not aware of Complainant's prior EEO activity, we find that she was the conduit of S1's retaliatory animus and that her decision not to select Complainant for the Supervisory Social Services Assistant position was based upon S1's biased assessment of Complainant. See Feder v. Dep't of Justice, EEOC Appeal No. 0720110014 (July 19, 2012) (appropriate, under "cat's paw" theory, to impute manager's retaliatory animus to deciding official where manager wielded sufficient informal power to influence deciding official and deciding official acted as conduit for manager's retaliatory animus related to complainant's reasonable accommodation); Brown v. Dep't of Justice, EEOC Appeal No. 0120045121 (Dec. 20, 2006) (holding that responsible management official did not need to have racial animus against Complainant to support finding of discrimination when official heavily relied upon the accounts of employees who harbored racial animus against Complainant to terminate); Echard v. Dep't of Justice, EEOC Appeal No. 07A20137 (Nov. 5, 2003) (holding that responsible management official did not need to have actual knowledge of Complainant's prior EEO activity when he was acting as a conduit of another employee's prejudice against Complainant); cf. Staub v. Proctor Hosp., 562 U.S. ___, 131 S. Ct. 1186 (2011) (employer liable, under Uniformed Services Employment and Reemployment Rights Act, for discriminatory animus of supervisor who did not make the ultimate employment decision where supervisor performs an act motivated by discriminatory animus that is intended to cause an adverse employment action and the act is the proximate cause of the ultimate employment action). Therefore, we find that the Agency discriminated against Complainant on basis of reprisal for protected EEO activity when it did not select her for the Supervisory Social Services Assistant, GS-0186-8, position after Applicant 2 declined the job offer.
Having found that the Agency discriminated against Complainant on the basis of reprisal in violation of the Rehabilitation Act, we need not determine whether it discriminated against her on the bas1s of disability when it did not select her for the position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has shown that she was discriminated against based on her prior EEO activity, and we REVERSE the decision of the Agency.
ORDER (D0610)
Within sixty (60) days of the date this decision becomes final, the Agency is so ORDERED:
1) The Agency shall offer Complainant the position of Supervisory Social Services Assistant, GS-0186-8, at the Veterans Affairs Medical Center in Hampton, Virginia, retroactive to the date of her non-selection, July 6, 2009. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position. If Complainant should decline the Agency's offer of a position, the date of her declination shall be the end date for any back pay due Complainant. If Complainant has retired from the Agency, the date of her retirement shall be the end date for any back pay due Complainant.
2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since July 6, 2009, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3) The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of her non-selection, and shall afford Complainant an opportunity to establish a causal relationship between the non-selection and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she is entitled to as a result of the discrimination which resulted from her prior EEO activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new Agency decision awarding compensatory damages to Complainant within sixty (60) days of the date this decision becomes final.
4) The Agency shall provide eight (8) hours of EEO training to the involved management officials, including Complainant's first-level supervisor, regarding their responsibilities under EEO laws.
5) The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
6) The agency shall post a notice in accordance with the paragraph below.
POSTING ORDER (G0610)
The Agency is ordered to post at its Veterans Affairs Medical Center in Hampton, Virginia, facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 23, 2013
Date
1 Undated time and attendance records state that Complainant was charged with AWOL on January 15 and 16 and March 4, 5, 6, 11, 12, and 13, 2009. ROI Exh. C-8. Complainant asserts that the AWOL charges were removed from her record. Id. Exh. B-1 at 35, 44-45. The time and attendance records that Complainant submitted to the EEO Investigator on January 13, 2010, reflect that Complainant received leave without pay (LWOP) on January 15 and 16 and March 6, 11, 12, and 13, 2009, and sick leave and LWOP on March 5, 2009. Id. Exh. C-6. The records submitted by Complainant do not reflect any AWOL charges for those dates. Id.
A January 22, 2010, "Leave Used Summary" for the period March 1, 2008, to March 1, 2009, shows that Complainant had 21 hours of "authorized absence" and used 221.50 hours of annual leave, 14 hours of compensatory time, 104 hours of sick leave, and 63.50 hours of LWOP during the period. According to the Summary, the leave usage included 16 hours of LWOP on January 15-16, 2009. Id. Exh. C-8.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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