Doria D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 18, 20180120162027 (E.E.O.C. Sep. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doria D.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162027 Agency No. 2001-0619-2015101345 DECISION 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 May 5, 2016, 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Social Worker, GS-0185-11, at the Agency’s Medical Center in Tuskegee, Alabama. In an EEO complaint filed on February 3, 2015 and subsequently amended, Complainant alleged that a Social Work Supervisor (S1a), a second Social Work Supervisor (S1b), and the Chief of Social Work Service (S2) had subjected her to harassment and disparate treatment because of her race (African-American), sex (female), disability (cervical stenosis, asthma), age (48), and reprisal (prior protected EEO activity). In support of her claim, she identified the following incidents: 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. 0120162027 2 1. On May 22, 2014, S1a required Complainant to sign a memorandum from the General Counsel under threat of dismissal. 2. Since late July 2014, management has failed to properly maintain the Dictaphone software, Dictaphone, and microphone that were provided to Complainant as a reasonable accommodation. 3. On September 30, 2014, Complainant was detailed from the Geriatric Primary Care Gold Clinic to the Caregiver Support Program. 4. On December 27, 2014, January 10, 2015, and January 24, 2015, Complainant was charged leave without pay (LWOP). 5. On January 14, 2015, Complainant was issued a reprimand. 6. On February 2, 2015, Complainant was charged with eight hours of absence without leave (AWOL). 7. On February 5, 2015, Complainant’s service record screen reflected a change in her type of employment from competitive appointment to excepted without time limit. 8. During a meeting held on February 19, 2015, S2 put her hand close to Complainant’s face in a rapid fashion, which evoked fear in Complainant. 9. In response to Complainant’s multiple requests since August 29, 2014, for use of a different microphone as part of her reasonable accommodation, Human Resources (HR) waited until March 24, 2015, to submit the required VA Form 0857e, request for medical documentation. 10. By memorandum dated March 30, 2015, Complaint was issued a proposed suspension for seven calendar days. 11. On April 9, 2015, an IT technician about whose bullying behavior Complainant had previously complained, made another attempt to engage her in a phone call. 12. By letter dated May 6, 2015, Complainant was notified that the charges in the proposed suspension were sustained and, as a result, the decision was made to suspend her for five calendar days, effective May 17 through May 23, 2015. 13. During a meeting on May 15, 2015, S2 called Complainant ludicrous, offered her a job outside the VA system without allowing her time to consult with the union and advised her that she would not be present the following week due to her suspension. 0120162027 3 14. On June 15, 2015, S2 and the administrative officer interrupted Complainant while she was on her computer taking a mandatory VA training class, after which S2 loudly examined boxes in her office and forced her to open a restricted mail message sent by the Administrative Officer pertaining to a position Complainant previously declined. 15. By memorandum dated June 11, 2015, Complaint was issued a written counseling. 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Incident (1): In an email dated April 16, 2015, Complainant stated that S1a had forced her to sign a document under threat of dismissal. IR 715. The document in question was a litigation hold notice. IR 711-14. Incidents (2) and (9): extensive email conversations between Complainant, S2, and the Assistant Chief for Social Work (ACSW) as well as other documentation, indicated that Complainant had requested and had been approved for a reasonable accommodation consisting of dictation software and computer accessories that alleviated her need to type. Complainant had been diagnosed with cervical stenosis, which caused her to experience pain in her wrists, arms, and hands. After the accommodation had been approved, technical issues arose in connection with the software and the headsets that she was using. Each time she reported problems, the Agency’s technical support staff responded to her requests. IR 421-22, 427-33, 439-43, 451-52, 454-57, 459, 464, 466-75, 479-83, 485, 488-91, 494-95, 497-589. Incident (3): In a memorandum dated October 6, 2014, S2 notified Complainant that, pending a fact-finding inquiry, she would be temporarily detailed to the Caregiver Support Program. The reason for the detail as set forth in the memorandum was that management had concerns about Complainant’s ability to serve as a social worker in the geriatric primary care clinic to which she had been assigned. The memorandum stated that numerous complaints had been received from patients regarding Complainant, to the point that a fact-finding had to be initiated. The detail did not result in any changes to Complainant’s series, grade, step, or salary. IR 592-96. Incidents (4) & (6): In emails sent to Complainant on January 5, 6, and 12, 2015, the ACSW and a payroll technician informed her that she did not have enough accrued annual and sick leave to cover the leave she had requested. As of December 27, 2014, she only had 0.25 hours of sick leave and 0.50 hours of annual leave. Complainant was charged leave without pay to cover the deficits. As for being charged absence without leave on February 2, 2015, Complainant’s leave records indicate that she was not charged AWOL on that day. IR 413, 597-601. 0120162027 4 Incident (5): In a memorandum dated January 14, 2015, S2 informed Complainant that she was receiving a reprimand for failure to carry out assignments throughout October 2014. In a step one grievance decision issued on February 20, 2015, S2 upheld the reprimand. IR 446-49, 604-05. Incidents (7), (8), (11), (13) & (14): When asked about these incidents, Complaint averred that she had no comment and nothing to add. IR 209-12. Incidents (10) & (12): In a memorandum dated March 30, 2015, S2 informed Complainant that she was issuing a proposed seven-day suspension for deliberate refusal to carry out orders and failure to establish policy and procedures. In a memorandum dated May 6, 2015, the Associate Director for Patient Care Services informed Complainant that the suspension was sustained but reduced to five days, and that it would be served between May 17 and May 23, 2015. IR 657-63, 667. Incident (15): In a memorandum dated June 11, 2015, S1b informed Complainant that she was being issued a written counseling for misconduct. S1b had directed her to complete an assignment but in an email dated June 8, 2015, Complainant informed S1b that she was declining the assignment. S1b stated in the memorandum that Complainant’s refusal to perform the duties assigned to her had impacted the Social Work Department and had resulted in a delay of services for those applying for the Caregiver Support Program. IR 674-76. ANALYSIS AND FINDINGS 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 lawâ€). Harassment To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create an abusive working environment.†Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 0120162027 5 When asked by the EEO investigator in connection with all fifteen incidents why she believed that she was being discriminated against, Complainant replied that she had no comment. IR 206-13. She has not provided any statements from any witnesses, including herself, that establish the necessary connection between the incidents alleged to constitute discriminatory harassment, and the motivations of any of the officials that she named in her complaint. We therefore agree with the Agency that Complainant failed to establish that she was subjected to a discriminatory hostile work environment. Disparate Treatment – Incidents (2, 3, 4, 5, 6, 10, 12, & 15) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas. Dept. of Community. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Just as with her claim of harassment, Complainant failed to provide any statement in her affidavit that supports her claim of disparate treatment with respect to any of the incidents. As previously noted, Complainant merely replied, “no comment,†or “I have nothing to add†when questioned by the EEO investigator regarding these incidents. IR 207-13. Consequently, we find that Complainant failed to prove that her race, sex, age, disability, or previous EEO activity were motivating factors with respect to incidents (2) through (6), (10), (12), or (15). Disability Accommodation – Incidents (2) & (9) Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). In this case, the extensive email conversations among the parties establish that the Agency made valiant efforts to respond to technical issues concerning Complainant’s reasonable accommodation requests. When Complainant was asked by the investigator why she believed that the Agency had failed to properly maintain the equipment and software needed for her accommodation, she responded that she did not have any further comment. IR 207. 0120162027 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final 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. 0120162027 7 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 September 18, 2018 Date Copy with citationCopy as parenthetical citation