Genie S.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120173005 (E.E.O.C. Oct. 25, 2018)

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

Genie S.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120173005

Agency No. 2003-0686-2016104650

DECISION

On September 1, 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
August 18, 2017 final decision concerning an 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.

BACKGROUND

During the relevant time, Complainant worked as a Certified Nursing Assistant at the
Community Living Center, of the Agency’s Eastern Kansas Health Care System in Leavenworth,
Kansas. Believing that she was subjected to discrimination based on her disability and in reprisal
for prior protected EEO activity, Complainant filed a formal complaint on September 23, 2016.

The Agency accepted the formal complaint for investigation and framed the claims as follows:

Complainant was subjected to a hostile work environment when:

(1) On August 5, 2016, Clinical Nurse Leader (CNL) [hereinafter “Supervisor”]
failed to take corrective action when [Coworker-J] precluded Complainant from
working on a shared computer two days per week, as scheduled.

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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(2) In August 16, 2016, [Supervisor] denied Complainant’s request for a
reassignment.

(3) In August 2016, [Supervisor] failed to take corrective action when [Coworker-J]
told colleagues that Complainant had the comprehension level of a fourth grader.

(4) On an ongoing basis, Complainant was not assigned and/or distributed the same
workload as her colleagues on weekends.

(5) On an ongoing basis, [Supervisor] failed to take corrective action when
[Coworker-J] bullied Complainant, talked to her in a rude manner, and told
malicious jokes about her to colleagues.

Prior to the conclusion of the investigation, Complainant raised an additional claim:

(6) On or around January 9, 2017, the Agency failed to process her “assist”
documentation.

Finding that the above incident was “like and related” to the rest of the formal complaint, the
Agency permitted the amendment of the complaint to include the new claim. When the
investigation was completed, 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its August 18, 2017 decision, the Agency found no discrimination. Additionally, we note, that
in the decision the Agency reorganized the claims into simply two: (1) disparate treatment, with
respect to the reassignment and failing to process her “assist” paperwork; and (2), harassment
comprised of the remaining events. 2

Assuming that Complainant established a prima facie case, the Agency found that management
proffered legitimate reasons for its actions. Regarding the reassignment, the Agency could not
grant the request because there was no vacant position. According to the Agency, it did not deny
her request, rather, the Agency was unable to fulfill it at that time. Regarding the alleged failure
to process Complainant’s “assist,” Supervisor stated that she spent over an hour with
Complainant. As for the alleged incidents of harassment by Coworker-J, the Agency reasoned
that the events were not sufficiently severe or pervasive to create a hostile work environment.

Complainant filed the instant appeal. She did not provide any contentions or arguments.

2 We presume for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
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ANALYSIS AND FINDINGS

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”).

Disparate Treatment

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). He must generally 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant met with management and her union representative, requesting to be reassigned out
of her unit due to the problems with Coworker-J. The managers explained to her that there had to
be an open position for her to be reassigned, and that if the Agency found a vacancy it could be
in a variety of areas, including housekeeping or the kitchen. While Complainant wanted to move
to another medical unit, the Agency informed her that it was uncertain where she could be
placed. Complainant herself attested that she was unaware of an available reassignment in her
field at the time. She was also did not known of any other employees being granted a
reassignment. The record supports the Agency assertion that Complainant was not denied a
reassignment due to her protected bases, but rather there was not a reassignment opportunity
available at the moment. Complainant has not met her burden in showing that the Agency’s
reason was pretext for discriminatory animus.

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When an employee is injured an “assist” needs to be filed. According to Supervisor,
Complainant was off on a Monday, but when Complainant came to work on Tuesday she was
upset, holding her hands up, and complaining that she was numb from her shoulders down.
Complainant explained that she had been injured while working over the weekend and was
concerned that she would be unable to handle the day’s workload because another colleague was
absent. Supervisor attested that she drove Complainant to the Emergency Room, and upon
Supervisor’s return to work her manager reiterated that an “assist” needed to be completed.
Supervisor contacted Complainant, who explained she was too hurt to return and complete an
“assist.” In response, Supervisor says she told Complainant they would take care of the assist
upon her return to work. When Complainant did return, Supervisor contends that she forgot to
seek out Complainant to complete the “assist.” She contends that Complainant also failed to
raise the issue of completing the “assist” paperwork. Approximately one month later, when
Complainant wanted to file a workman’s compensation claim, she came to Supervisor regarding
the “assist.” At that point, Supervisor admitted to forgetting about it, and took care of it
immediately. Complainant has not shown that any delay in completing the “assist” was due to
her disability or prior EEO activity.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their statutorily protected class; (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). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

With respect to element (5), in the case of co-worker harassment, an Agency is subject to
vicarious liability for acts of harassment in the workplace where it (or its agents) knew or should
have known of the conduct, unless it can show that it took immediate and appropriate corrective
action. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

In the instant case, Complainant described her disability as having “hard problems interpreting
things and reading.” She stated that her disability is documented with both Human Resources
and the Reasonable Accommodation Department. Moreover, the record reflects that
Complainant was previously given her own computer, containing Dragon and Read-and-Write
programs which read documents aloud, as an accommodation. The computer was located in a
quiet back room.
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When Coworker-J joined the unit, because other offices were taken, she was placed in the back
room and shared Complainant’s computer. According to Complainant, Coworker-J was
unreasonable and unfair in sharing the computer. Complainant acknowledged that after
complaining to Supervisor, Coworker-J was moved to another location. However, Complainant
contends that Coworker-J then created a hostile work environment by telling colleagues that
Complainant had the comprehension of a fourth grader, talked to her in a rude manner,
commented that a unit newsletter should be written so a child could read it, and even brought her
children’s books. Supervisor, however, attested that Coworker-J was a former grade-school
teacher and had provided the books in response to Complainant lamenting she could not help her
daughter with her homework.3 The Supervisor determined that the remark about the newsletter
related to the newsletter being drafted without medical terms. Similarly, Supervisor explained
that a comment regarding charting errors, directed to all CHAs, Complainant incorrectly assessed
as a personal attack.

The Agency took prompt, remedial action when Complainant reported her concerns with sharing
a computer and space with Coworker-J. While we agree that some of the remarks made by
Coworker-J are related to Complainant’s disability, we find that they were not sufficiently severe
or pervasive to create an abusive working environment. The Commission finds that Complainant
has not proven she was subjected to unlawful discriminatory harassment.

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;

3 According to Supervisor, Coworker-J is no longer employed at the Agency.
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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

October 25, 2018
Date