0120160422
05-17-2018
Coleen M.,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Coleen M.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160422
Hearing No. 461-2012-00109X
Agency No. 200306292012100958
DECISION
On October 28, 2015, 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 October 6, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Care Coordinator Home Telehealth, Nurse II, Step VII at the Agency's Southeast Louisiana Veterans Healthcare Systems facility in New Orleans, Louisiana. The record indicated that she had not been
On January 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American), sex (female), disability (nerve impairment, rotator cuff tears, and reflex sympathetic dystrophy), age (born in 1963), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. In December 2010, Complainant learned that the Agency had cancelled her long-term health insurance.
2. In January 2011, Complainant received a letter of proposed removal.
3. Since March 2011, Complainant has sent over fifty emails and numerous pieces of correspondence via certified mail to management addressing her duty status, of which she has only received two responses.
4. On March 30, 2011, the Nurse Manager (female, 44 years old, African-American, no know disability, engaged in prior EEO Activity) failed to respond to Complainant's request for her W-2 form.
5. On or about May 2, 2011, Complainant received a letter from the Nurse Manger which contained false information about her leave balances.
6. On June 2, 2011, Management rescinded Complainant's letter of proposed removal issued in January
7. On or about November 3, 2011, Complainant received a second letter from the Nurse Manager about her duty status which contained errors about her Leave Without Pay (LWOP) information.
8. On or about November 25, 2011, Complainant received a letter from the Nurse Manager concerning her duty status which stated that she would be carried in an Absence without Leave status.
9. On December 13, 2011, Complainant received a second letter of proposed removal.
10. Effective January 19, 2012, Complainant was terminated from her position as a Registered Nurse.
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 Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's motion for a decision without a hearing over Complainant's objections, issued a decision without a hearing on September 28, 2015.
The AJ held that the record has been adequately developed and there are no material facts in dispute. As such, the AJ determined that summary judgement was appropriate. The AJ first turned to Complainant's prima facie case of discrimination based on her disability, reprisal, age, sex and race. The AJ stated that Complainant provided scant information regarding her medical condition noting that she provided information with the Department of Labor and her claim for worker's compensation. However, the AJ presumed Complainant was an individual with a disability based on her nerve impairment, rotator cuff tears, and reflex sympathetic dystrophy. The AJ then noted that Complainant failed to show that she was a qualified individual with a disability. From March 2010 to December 2011, the AJ found that Complainant had worked 10 1/2 hours at the Agency. In addition, during that 19-month period, Complainant provided medical documentation from her treating physician stating that she was unable to work. Complainant asserted that the Agency should have provided her with a reasonable accommodation in the form of light duty. However, the AJ determined that Complainant provided medical documentation indicating that she was incapacitated from work for 19-months and she did not indicate when or whether she could ever return to duty to perform the essential functions of her position. Accordingly, the AJ held that Complainant did not prove that the Agency could have provided her with a reasonable accommodation including indefinite leave without pay for such an extended period of time. Therefore, the AJ concluded that Complainant did not demonstrate that the Agency's action violated the Rehabilitation Act.
The AJ then turned to Complainant's claim of discrimination based on age, race, and sex. Complainant asserted that the Agency provided more preferential treatment to others. The AJ held that the purported comparators were not in the same job or have the same supervisor as Complainant. In addition, the AJ noted that some of the other alleged comparators were on leave under the Family Medical Leave Act (FMLA) or approved worker's compensation claims. Based on the AJ's review, he determined that Complainant provided no support to her bald, unsupported claims that she was treated differently than other employees.
The AJ then addressed Complainant's claim of harassment. The AJ held that Complainant provided no evidence to support her assertion raised in claim (1) that her long-term health insurance was terminated for discriminatory reasons. Management indicated that they had nothing to do with the cancellation of the policy and the AJ found that Complainant did not challenge the Agency's assertion. As to the claims (2), (6), and (10) related to the initial removal action, its rescission and the final removal action, the AJ determined that Complainant has not shown that she was able to perform her position during the time in question. As to claims (3), (4), (5), (7), (8) and (9), the AJ indicated that Complainant provided few details regarding these events and less as to how these events occurred because of her protected bases. Therefore, the AJ concluded that Complainant failed to show she was subjected to harassment due to her protected bases.
Finally, the AJ addressed Complainant's claim of disparate treatment. The AJ held that the Agency provided legitimate, nondiscriminatory reasons for terminating Complainant. The Agency indicated that Complainant was unable to maintain a regular work schedule. The AJ determined that Complainant did not show that the Agency's reason was pretext for discrimination based on her race, sex, age or prior EEO activity. As such, the AJ concluded that Complainant was not subjected to harassment and/or disparate treatment as she alleged in her formal complaint.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant alleged that she was denied reasonable accommodation when she was removed from her position effective January 19, 2012. We note that Complainant asserted that she was not provided with a "non-rolling chair" and a device to elevate her right arm to prevent compromising neurovascular symptoms in November 2010, her leave request under the FMLA in December 2010 was denied and she was placed on leave without pay status in 2010. However, a review of the record indicates that Complainant alleged these events in a prior EEO complaint which she withdrew before the AJ. As such, these events were not addressed by the AJ in his decision based on Complainant's withdrawal. Therefore, the only events before the Commission are Complainant's claim that she was denied reasonable accommodation when she was not provided with "light duty" by the Agency or provided with extended leave by the Agency. Therefore, as a result of the denial of reasonable accommodation, she was removed from her position effective January 2012.
As stated above, the Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
Upon review of the record, we find that Complainant has not shown that she was able to return to work. The record indicates that Complainant had been out of work since March 18, 2010. Complainant provided a medical note dated March 23, 2010, stating "no work until reevaluation." Complainant used all of her available leave and was at a zero-leave balance as of February 7, 2011. Complainant appeared for work for four hours on November 3, 2010, and six and a half hours on December 21, 2010. Complainant stated in her affidavit in support of her complaint that she should have been provided with "light duty." However, the record indicated that Complainant was not released by her physician to return to work in any form nor was Complainant given a prognosis that she could return to the workplace. In summary, we find that the Agency did not discriminate against Complainant because of her disability by failing to accommodate her. The Agency had no duty to accommodate Complainant when she could not work at all. See Phillips, III. v. U.S. Postal Serv., EEOC Appeal No. 0120112480 (May 19, 2013). As such, we conclude that Complainant has not shown that she was subjected to discrimination in violation of the Rehabilitation Act.
Disparate Treatment
Complainant also asserted that she was subjected to disparate treatment based on her sex, race, age, and prior EEO Activity with respect to claims (1), (2), (6), (9) and (10). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to claim (1), the Agency indicated that it did not cancel Complainant's long-term health insurance as she alleged. The Associate Director (female, African-American, 56 years old, no disability, and engaged in prior EEO activity) averred that the Department of Labor has jurisdiction over Complainant's benefits particularly her long-term health care and no action was taken by the Agency with respect to this claim. As to claim (2), the record indicated that Complainant had not been in the workplace since March 2010. Based on Complainant's failure to be regular in her schedule, the Agency proposed her removal in January 2011. However, as indicated in claim (6), the removal action was rescinded on June 2, 2011. The Associate Director asserted that Complainant was issued the initial removal based on her inability to maintain a regular work schedule. She indicated that after consultation with Human Resources and the Agency's Regional Counsel, management wanted to ensure all reasonable efforts had been made to bring Complainant back to workforce. As such, the first proposed removal was rescinded. However, when Complainant continued to be out on leave without pay from March 2010 to December 2011, the Agency issued Complainant the second notice of proposed removal and subsequently removed Complainant effective January 19, 2012, as alleged in claims (9) and (10). The Associate Director averred that Complainant had exhausted all her leave options. She consulted with Human Resources and the Regional Counsel to assure herself that the Agency had made all reasonable efforts to bring Complainant back into the workplace. Further, Complainant had not provided any medication documentation which would return her to the workplace. The Associate Director averred that Complainant's position had been vacant for well over a year and the continued vacancy would be a detriment to patient care and had been an untenable burden on the organization. As such, Complainant was removed from her position based on her failure to maintain a regular work schedule.
Finding that the Agency provided legitimate, nondiscriminatory reasons for its action, we turn to Complainant to establish that the Agency's reasons for its actions were pretext for discrimination. A review of Complainant's affidavit shows that Complainant merely asserted without any evidence that the events occurred because of her protected bases. We find that Complainant's unsubstantiated claims are not sufficient to show that she was subjected to discrimination and unlawful retaliation as she alleged. Therefore, we conclude that Complainant has not established that she was subjected to disparate treatment with respect to claims (1), (2), (6), (9), and (10).
Harassment
In her harassment claim, in addition to the incidents discussed above, Complainant alleged that the Agency provided her with various correspondence with what she believed to be incorrect information pertaining to her leave status, her FMLA status and her LWOP status. She also challenged the Agency's failure to respond to several of her inquiries. Finally, Complainant claimed that she was not provided with her W-2 form which she needed for her federal income tax filings.
Management rejected Complainant's claims. The Nurse Manager averred that the W-2 was issued and mailed to Complainant by certified mail. However, the form was returned to the Agency as "undeliverable." The Nurse Manger also indicated that she tried to communicate with Complainant about her duty status and leave status during Complainant's absence. The Associate Director stated that Complainant's communication was not ignored and that management wanted to ensure that Complainant was appraised of her leave and duty status. The Nurse Manager and the Associate Director engaged in communications with Complainant regarding her medical condition and status during the 19 months that Complainant was absent from the workplace. Complainant believed that the information she received in letters from the Agency was incorrect particularly with respect to her leave status and her LWOP status. The Nurse Manager and the Associate Director indicated that they received information regarding Complainant's status through Human Resources records and based on Human Resources guidance. They denied that the information was "incorrect" as stated by Complainant.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, age and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race, age, sex, disability or prior protected activity played any role whatsoever in the decisions regarding the Agency's removal actions. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanation for their communications with Complainant. In sum, Complainant failed to prove that her race, sex, age, disability or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim.
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 decision finding no discrimination.
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.
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. 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
May 17, 2018
__________________
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.
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