Carrol V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 23, 2018

0120170972 (E.E.O.C. Nov. 23, 2018)

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

Carrol V.,1
Complainant,

v.

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

Appeal No. 0120170972

Agency No. 200406132015103614

DECISION

On January 19, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 2, 2016, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 decision (FAD).

ISSUES PRESENTED

Whether the FAD properly found that Complainant failed to establish that he was subjected to
disparate treatment and denied a reasonable accommodation on the bases of disability (Post
Traumatic Stress Disorder) and reprisal when:

1. A determination was made that the move of Complainant’s work area was in compliance
with his reasonable accommodation request;
2. On May 21, 2015, the Business Manager assigned Complainant more duties from another
program;
3. On June 1, 2015, the Business Manager told Complainant that he was assigning
Complainant’s duties to a co-worker; and

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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4. On May 26, 2015, the Business Manager told a co-worker of Complainant’s that “[he]
called in using FMLA again this morning.”

Whether the FAD properly found that Complainant failed to establish that he was subjected to
discriminatory harassment as evidenced by 14 events occurring between February 24 and June 8,
2015. These events included improper charges of sick leave, questioning the status of his EEO
complaint, unequitable assignment of duties and other matters.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Support
Assistant at the Agency’s Geriatrics Long Term Care Service facility in Martinsburg, West
Virginia. The Agency’s FAD clearly articulates the facts of record, and without reiterating them
the instant decision incorporates them by reference. On September 1, 2015, Complainant filed an
EEO complaint alleging that the Agency discriminated against him as articulated in the statement
of Issues above. After 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. 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).2 The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

Complainant did not file a brief on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 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, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

2 The record also indicates that Complainant did not return his affidavit to the EEO investigator.
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for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222 (1st Cir.
1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a
prima facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. 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 Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Assuming, arguendo, Complainant established prima facie cases of discrimination based on
disability and reprisal for engaging in prior EEO activity, we find that the Agency articulated
legitimate, non-discriminatory reasons for the incidents Complainant cites to establish his claim.
The record is void of any evidence that the assignment of duties to Complainant were motivated
by discriminatory animus. The record is void of any evidence that Complainant was assigned a
disproportionate amount of duties as compared to his co-workers, or that he was assigned duties
outside his job description. The Commission has long held that an Agency has broad discretion to
set policies and carry out personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16,
1997).

Complainant provides no documentary or testimonial evidence to establish pretext. He offers
nothing more than his own assertions. A review of the record shows no persuasive evidence in
support of Complainant’s contentions, which alone are not enough to establish pretext.

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 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. Reasonable accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability to perform the
essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17,
2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish
disability discrimination, Complainant must show that: (1) he is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he 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.

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A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400
(2002). “[T]he word ‘accommodation’ ... conveys the need for effectiveness.” Id. “An ineffective
‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.” Id. In
the context of job performance, this means that a reasonable accommodation enables the individual
to perform the essential functions of the position. See Guidance. A complainant who seeks to hold
an agency liable for failing to accommodate a disability need not show that they have suffered an
adverse employment action. An agency is required to accommodate an employee’s disability
whether or not a failure to do so is motivated by discrimination based on that disability.

For purposes of analysis only we will assume, without so finding, that Complainant is a qualified
individual with a disability. We find that the record reflects that management took reasonable steps
to accommodate Complainant. Complainant’s work space was initially moved to have all
administrative staff in one area. After the move, Complainant filed a request for a larger work
space near a visible exit and window. On April 15, 2015, Complainant requested reasonable
accommodation to have a room with sunlight and his desk near the exit. He submitted medical
documentation in support of his request on April 16, 2015 and April 20, 2015. A meeting was
held to discuss the request and Complainant’s request was granted. His desk was moved to a larger
area in front of a window. To the right of Complainant’s desk was a window and to the left of the
desk was an exit sign. When Complainant stated that he could not see the exit sign, mirrors were
installed. It appears that Complainant’s issue with the provided accommodation was that he
wanted to remain in an office instead of an open area; however, as noted above Complainant did
not return his affidavit, nor did he provide a statement on appeal so it is unclear.3

A protected individual is entitled to a reasonable accommodation, but he is not necessarily entitled
to the accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal
No. 01931005 (February 17, 1994). The employer may choose among reasonable accommodations
so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400
(2002). In this case, we find that the Agency took care in assessing the requested accommodations.
After Complainant identified those accommodations, the Agency began taking steps to have them
put in place for Complainant. Accordingly, we find that Complainant was effectively
accommodated, and not denied a reasonable accommodation.

Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore

3 There is no indication that Complainant’s medical documentation specifically required a private
office for Complainant. The April 16, documentation provides, in part, that Complainant was
“unable to sit in closed tight space with no exit.” The document also states that, “current office
place is fine with patient, but the place where he is going to [unintelligible] has no windows, tight,
closed space cannot see exit, which makes him anxious, agitated based on his . . . condition PTSD.”
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Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

The Agency concluded that Complainant failed to establish a claim of harassment because he failed
to show that that he was subjected to severe or pervasive treatment such as to create an unlawful
work environment on any basis. Instead, the incidents complained of here appear to have been
reasonable actions by Complainant’s supervisor and other management officials taken in the
course of discharging their supervisory responsibilities. The incidents identified were in the nature
of common interactions and employment actions that would occur between a supervisor and a
subordinate employee in the workplace. We agree with the Agency’s findings in the FAD that the
incidents, considered together and taken as a whole, do not rise to the level of a discriminatorily
hostile workplace.

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
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
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Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “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.

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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

November 23, 2018
Date