0120140439
09-09-2016
Barbie W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Barbie W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140439
Hearing No. 410-2012-00289X
Agency No. 200105572011104219
DECISION
On November 18, 2013, Complainant filed an appeal from the Agency's October 10, 2013, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether substantial evidence in the record supports the Administrative Judge's (AJ's) finding that the Agency did not discriminate against, or subject Complainant to a hostile work environment, based on race, sex, disability, and in reprisal for prior EEO activity when she was "pushed" on her shoulder; denied a request for reasonable accommodation; her medical information was disclosed to management officials; and an employee slammed a door in her face.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief of Social Work at the Agency's Medical Center in Dublin, Georgia. On August 25, 2010, Complainant responded to a call for assistance from a family completing an advanced directive. A chaplain (C1) was also there to assist the family. Complainant and C1 got into a disagreement, and Complainant alleged that C1 "got in her face," and stormed off. Complainant stated that when C1 returned, he pointed his finger in her face, pushed her shoulder, and stated that she "stay out of it." Complainant contacted the police to report the incident. The Police Chief (PC) found that Complainant's account of events was inconsistent with that of C1 and a witness (W1). C1 admitted to touching Complainant's shoulder, but denied pushing her. W1 stated that she saw C1 touch Complainant's shoulder, but did not see him push her. W1 also stated that she heard C1 say, "I didn't push you, and I'm sorry if you think I did." No further action was taken at that time. On July 27, 2011, approximately one year later, Complainant contacted the PC, and stated that she would like to file criminal charges against C1. The PC re-interviewed C1 and W1, and determined that no crime had occurred, and referred Complainant to the local magistrate if she wished to pursue further action.
On September 2, 2010, Complainant signed a settlement agreement for her then EEO complaint. Complainant agreed to "voluntarily withdraw in its entirety her complaint of discrimination...and all other causes of action arising before the execution of this agreement." In consideration, the Agency reassigned Complainant to a new supervisor.
In November 2010, Complainant verbally requested a reasonable accommodation from her supervisor (S1) (Asian, male, no disability) to either telework two times per week, or to report to an Agency facility closer to her home. Complainant alleged that S1 stated that he would discuss her request with her second line supervisor (S2) (Asian, female, no disability), and alluded that S2 would deny her request. Complainant stated that S1 did not provide a response to her until she raised the issue again in March 2011. Complainant developed complications from her pregnancy, and her doctor stated that she would need to be monitored twice a week, starting March 14, 2011. Complainant called S1 to request a reasonable accommodation to telework twice a week until April 8, 2011.
On March 18, 2011, Complainant's request was denied because the Agency determined that Complainant had a temporary condition, and she was not considered an individual with a disability. Complainant requested to meet with the Agency's top management officials (referred to as the "QUAD") to discuss the denial.2 The Director (D1) (unknown race, unknown sex, unknown disability status) contacted an EEO Manager (EEOM) (African-American, female, no disability) for additional guidance. After receiving additional information, the EEOM consulted Agency counsel, and on March 24, 2011, the Agency reversed the denial. The D1 personally apologized to Complainant for the initial denial; restored the leave that Complainant had taken; and granted authorized leave for her future appointments.
On July 22, 2011, Complainant walked by a subordinate's office, when one of the psychologists (P1) slammed the door closed. Complainant reported the incident, which she believed to be racially motivated. On August 26, 2011, a Human Resource Specialist (HRS) (African-American, female, no disability) sent a memo to P1 instructing him to not have contact with Complainant.
On November 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against, and subjected her to a hostile work environment, on the bases of race (African-American), sex (female), disability (thyroid cancer), and in reprisal for her prior 2010 EEO case when:
1. On August 25, 2010, C1 "got in [her] face," and pushed her shoulder;
2. On March 18, 2011, she was denied a reasonable accommodation;
3. On or about March 7, 2011, her medical information was shared with individuals who had no reason to access her medical records; and
4. On July 22, 2011, P1 slammed the door in her face.
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 Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing; the AJ held a hearing on September 10, 2011, and issued a decision on September 11, 2013.
The AJ found that claim 1 was settled as part of Complainant's September 2, 2010, settlement agreement because the incident occurred prior to the execution of the agreement. The AJ found that the claim was waived, and dismissed it.
For claim 2, the AJ found that Complainant had not shown that the Agency discriminated against her based on disability because it provided her with an accommodation. While the AJ noted that Complainant's request was initially denied, the Agency reversed its decision approximately six days later, and therefore, accommodated her.
The AJ assumed, without finding, that Complainant had established a prima facie case of discrimination based on race, sex, disability, and in reprisal for prior EEO activity. The AJ then found that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 3, the Agency stated that only those who were involved in Complainant's reasonable accommodation request saw her medical documentation. In response to claim 4, the Agency stated that P1 was instructed to keep away from Complainant. The AJ found that Complainant had not set forth any evidence showing that the proffered reasons were pretext for discrimination.
In regards to Complainant's hostile work environment claim, the AJ found that the actions were not sufficiently severe or pervasive to state a claim of harassment. The AJ determined that the three isolated and unrelated events were not objectively hostile. The AJ concluded that the Agency did not discriminate against, or subject Complainant to a hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ's findings.
Complainant filed the instant appeal, and submitted her brief in support of her appeal on December 18, 2013. The Agency provided its opposition brief requesting that the Commission affirm its final order.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ should have considered claim 1 as part of an overall pattern of harassment and a failure of management's intervention. For claim 2, Complainant states that the initial March 18, 2011, denial of her request was discrimination based upon sex (pregnancy) because her pregnancy was a "motivating factor," and disability. Complainant states that her request was forwarded to S2, "into the very hands of the management official that [she] filed an EEO against," which shows pretext for discrimination. Complainant alleges that the discrimination is evident because the proper procedure of sending her request to a reasonable accommodation committee was not followed, and her medical information was improperly shared.
For claim 3, Complainant alleges that her medical documents were improperly disclosed to management officials because the "staff" working on her request was not the appropriate staff. Complainant states that her request should have been before a reasonable accommodation committee. Additionally, Complainant claims that her medical documents were disclosed to the QUAD members and their administrators.
In regards to Complainant's harassment claim, she argues that the events were frequent enough to be severe or pervasive, and involved the same management officials, who failed to intervene.
In response, the Agency argues, among other things, that the AJ examined claim 1 thoroughly, and determined that Complainant was not harassed even if this incident was considered because the conduct was not sufficiently severe or pervasive. Additionally, the Agency states that the AJ properly determined that the Agency accommodated Complainant, after it reversed the initial denial of her request; and that Complainant's argument that she still suffers from the "traumatic effect" of the initial denial of her reasonable accommodation request is only relevant after a determination of liability.
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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant is not contesting the AJ's dismissal of claim 1 as a separate claim, and only alleges an error in not including the incident as part of her hostile work environment claim. As such, we AFFIRM the AJ's dismissal of claim 1.
Additionally, Complainant appears to be arguing that the March 18, 2011, denial of her reasonable accommodation request is discrimination based on her sex (pregnancy) and disability. However, we note that the AJ properly analyzed claim 3 as a failure to accommodate based on disability, and not as a claim of disparate treatment. Accordingly, we will discuss Complainant's claim as a failure to accommodate in this decision.
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 EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
While we note that the AJ did not consider claim 1 when analyzing Complainant's harassment allegation, we find substantial evidence in the record to support the AJ's finding that the Agency did not subject Complainant to a hostile work environment based on her race, sex, disability, or in reprisal for her prior EEO activity. Complainant alleges that C1 was "physically aggressive," but there is no evidence to support her bare assertion. However, even assuming that the event occurred as Complainant described, she has not shown that it was due to her protected bases, or that there is basis for imputing liability on the employer.
In regards to Complainant's argument that management officials failed to take action, the record shows that S2 spoke with C1 after the allegation was made, and decided that no further action was warranted. Additionally, when Complainant pursued the matter in 2011, the PC emailed Complainant to inform her that there was no corroborating evidence to support her allegation; Complainant's managers were copied on this email chain. Additionally, for claim 4, the Agency instructed P1 to have no contact or communication with Complainant. While Complainant alleges that she has seen C1 in her work area three additional times, and that P1 continued to "show up" at her workstation, she has not alleged that they have directed any additional verbal of physical conduct toward her. As such, we find that Complainant has not shown that her managers failed to take appropriate action.3
The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In looking at the totality of Complainant's allegation of the four incidents over the course of approximately one year, we find that the conduct was not objectively offensive resulting in an alteration of the conditions of her employment. Accordingly, we find that Complainant has not shown that the Agency subjected her to harassment based on her race, sex, disability, or in reprisal for prior EEO activity.
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
Upon reviewing the record, we find that substantial evidence supports the AJ's finding that the Agency did not discriminate against Complainant based on disability because it provided her with an accommodation. Complainant initiated her request on March 7, 2011, and was granted an accommodation on March 24, 2011. We do not find this to be an unreasonable delay.
Medical Confidentiality
The Americans with Disabilities Act of 1990 (ADA)4 requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, General Principles section in Background discussion (July 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997).
On appeal, Complainant argues that her medical records were improperly disclosed to those who had no need to view them. Specifically, Complainant argues that requests for reasonable accommodation should have gone to a reasonable accommodation committee, but instead, her request went to her supervisors, the QUAD, and the administrators of the QUAD. We find that the record substantially supports the AJ's determination that Complainant's medical information was not improperly disclosed, and that only those directly involved with Complainant's request saw her medical records.
The HRS testified that the Agency changed its reasonable accommodation policy in September 2010, and that requests were no longer sent to a reasonable accommodation committee. S1 was the deciding official for Complainant's request, with guidance provided by the HRS, who acted in her capacity as a Local Reasonable Accommodation Coordinator.
To the extent that Complainant's medical records were disclosed to the QUAD, the record shows that after receiving her initial denial, Complainant requested to meet with the QUAD for reconsideration of the denial. We find it reasonable that it was necessary for the QUAD members to review Complainant's medical information for the purposes of reconsidering her request. S2 reviewed Complainant's medical records because she was a member of the QUAD. Additionally, in regards to Complainant's allegation that her medical documentation was seen by the QUAD's administrators, we find that the record does not support this assertion. One of the named administrators stated that he did not see Complainant's request or medical documentation. As such, we find that substantial evidence supports the AJ's finding that Complainant was not discriminated against based on disability because her medical records were not improperly disclosed.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding that the Agency did not discriminate against, or subject Complainant to a hostile work environment based on race, sex, disability, or in reprisal for prior EEO activity when she was "pushed" on her shoulder; denied a request for reasonable accommodation; her medical information was disclosed to management officials; and P1 slammed a door in her face.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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 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
_9/9/16_________________
Date
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.
2 The QUAD includes the Agency's Director, the Associate Director, the Chief of Staff, and the Nurse Executive. We note that S2 is the Agency's Chief of Staff.
3 Complainant also alleges that her employees' actions were contributing to the hostile work environment, and that her managers failed to take action to address her concerns. We note that these incidents were not accepted claims, and the Commission cannot address new issues raised in an appeal.
4 The Rehabilitation Act was amended so that the standards under Title I of the ADA would be applied to employment discrimination cases under the Rehabilitation Act.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140439
2
0120140439