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

Equal Employment Opportunity Commission

Nov 2, 2018

0120171347 (E.E.O.C. Nov. 2, 2018)

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

Hester S.,1
Complainant,

v.

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

Appeal No. 0120171347

Hearing No. 570-2014-01164X

Agency No. 2004-0020-2013104203

DECISION

On February 22, 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
January 26, 2017, final agency decision (FAD) 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS
13, for the Agency’s Benefits Assistance Service (BAS) in Washington, D.C.

Complainant has the condition of Bipolar Disorder, which is permanent. Complainant stated that
she experiences difficulties with sleep, concentration, and memory. Complainant stated that her
physician has not restricted her job duties, but that she is sometimes prescribed medication that
makes her sleepy and prevents her from coming to work.

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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On March 25, 2013, Complainant’s third-level supervisor (S3) emailed all BAS staff, stating that
the Director had ordered the temporary suspension of all compressed work schedules in the
Washington, D.C. area. The email indicated that the change was due to late assignments, missed
deadlines, and improper formatting of work. The temporary suspension was scheduled to last 90
days, followed by reviews of team performance every 30 days to decide on reinstatement of the
compressed work schedules. S3 reinstated the compressed work schedules to the team, including
Complainant, on January 1, 2014.

In an email, dated April 19, 2013, Complainant requested a transfer to the Nashville BAS or to be
out-based from the Atlanta Regional Office through the reasonable accommodation process. ROI,
at 233. Complainant averred that a hostile work environment and the financial burden from the
cost of living in the Washington, D.C. area exacerbated her medical condition. Id.

On April 26, 2013, the Agency notified Complainant that the basis for her accommodation was
unclear because nothing in her documentation supported her claim that she was an individual with
a disability in need of a reasonable accommodation. ROI, at 237. The Agency informed
Complainant that she needed to submit documentation from her physician indicating that she could
not perform her full range of duties and the medical restrictions that would affect Complainant’s
ability to perform her job duties. Complainant was advised that if she was entitled to an
accommodation, the Agency would first explore accommodations that would keep her in her
current position. Id. at 237-238. However, if the Agency looked for a reassignment, it had to be
a position with job duties that Complainant could already perform and that Complainant could
perform with medical restrictions. The Agency further explained that it was not required to create
a position as an accommodation and that their reassignment obligation would be limited to looking
for a vacant, already existing position. Id. at 238.

On June 12, 2013, an Agency Human Resources Specialist emailed Complainant with a request
for medical documentation for her reasonable accommodation request. On a Request for Medical
Documentation, dated July 8, 2013, Complainant’s physician indicated that the exacerbation of
Complainant’s bipolar disorder was interfering with Complainant’s memory, concentration,
decision-making, mood, behavior, loss of interest, appetite, and sleep. She further noted that it
was impacting Complainant’s ability to concentrate on administrative tasks and communicate
effectively with management, coworkers, and other staff. The requested accommodation was a
transfer or out-basing to Atlanta “to alleviate the stress of a hostile working environment, financial
stress, stress of being away from home/family, and stress of her daily commute.” Id. at 28.

On July 11, 2013, the Agency denied Complainant’s reasonable accommodation request. The
Accommodation Request Determination explained that the request was denied because the
requested accommodation would not be effective. The Agency noted that the BAS did not have
any vacancies available in Nashville and the BAS did not have out-based positions in Atlanta.

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Based upon Complainant’s reports of financial strain, stress, and a desire to be closer to family,
the Office of General Counsel advised BAS that while Complainant’s medical documentation did
not justify the reasonable accommodation as requested, a hardship transfer would mitigate
Complainant’s concerns. ROI, at 229-230. Complainant requested reconsideration in July and
September 2013. Id. at 33-35.

In a letter dated September 10, 2013, S3 informed Complainant that following a second review of
Complainant’s reasonable accommodation request and supporting documentation, the denial of
Complainant’s reasonable accommodation request would be upheld because the documentation
that Complainant supplied did not support or justify a transfer or out-basing to Atlanta. ROI, at
228.

Complainant stated that on September 17, 2013, she emailed multiple Agency officials, including
the former VA Secretary, and reported that she was being discriminated against because of her
disability. ROI, at 87, 93. Complainant alleges that this email led to her reprisal allegations.

On September 18, 2013, Complainant was having a conversation with two coworkers when S3
approached them and stated, “Don’t you have work to do?” Complainant averred that she directed
the same statement, “Don’t you have work to do?” to her coworker. However, S3 and
Complainant’s coworker testified that Complainant directed the statement to S3. Shortly
thereafter, on September 23, 2013, S3 issued written counseling to Complainant for disrespectful
conduct related to the incident on September 18, 2013. ROI, at 199.

On November 13, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (mental) and in reprisal for prior protected EEO
activity when:

1. On March 25, 2013, Complainant’s supervisor removed her from a compressed
work schedule;

2. On July 11, 2013, Complainant’s requested reasonable accommodation to work
virtually (or to be out-based to Atlanta) was denied by her supervisor; and

3. On September 23, 2013, Complainant received a written counseling from the
Deputy Director.

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,
but subsequently withdrew her request. Consequently, the Agency issued a FAD 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.

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In its FAD, the Agency upheld the dismissal of Complainant’s claim that the Agency discriminated
against her based on reprisal and disability when it removed her from a compressed work schedule
on March 25, 2013, because it was untimely. Specifically, Complainant did not initiate EEO
Counselor contact until August 16, 2013, which was well beyond the 45-day time period for a
timely raised discrete event. However, the Agency considered the evidence related to
Complainant’s compressed work schedule in the adjudication of Complainant’s harassment claim.
As for the remaining claims, the Agency concluded that assuming, arguendo, Complainant
established a prima facie case for retaliation and disability discrimination, management articulated
legitimate, nondiscriminatory reasons for its conduct toward Complainant.

Regarding claim (2), the Agency determined that Complainant failed to show that her disability
precluded her from meeting the established criteria of her position. Moreover, the Agency denied
Complainant’s reasonable accommodation request because her medical documentation did not
provide adequate support or justification for a transfer to out-basing in Atlanta. Specifically, the
Agency explained that Complainant’s physician did not provide an opinion regarding how
Complainant’s disability precluded her from performing the essential functions of her position.
As for retaliatory animus, the Agency noted that the Agency’s efforts in conducting position
searches in Nashville and Atlanta belied Complainant’s allegations of retaliatory animus.

With respect to claim (3), S3 stated that she issued Complainant written counseling for
disrespectful and disruptive conduct. She explained that she had issued written counseling to other
employees that displayed similar behavior in the past. The Agency noted that while Complainant
attempted to show pretext by alleging that counseling was unwarranted, Complainant failed to
provide sufficient evidence to refute S3’s explanations regarding the written counseling. The
Agency further noted that Complainant offered no evidence of similarly situated individuals who
were outside of her protected class that were treated differently.

As to the harassment claim, the Agency concluded that claims (2) and (3) could not be considered
part of the harassment claim given the determination that they were not motivated by
discriminatory animus and/or a violation of the antidiscrimination statutes. In addition, the Agency
determined that removal of the compressed schedule could not be perceived by a reasonable person
as being derogatory toward individuals belonging to Complainant’s protected class. Further,
removal of the compressed schedule did not single out Complainant and was directed towards the
entire BAS for poor performance. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that following the acceptance of the underlying complaint, she
contacted BAS management regarding reconsideration of her reasonable accommodation request.
Complainant argues that she contacted the former VA Secretary via email and letter on multiple
occasions in 2014 and 2015 because the Agency was negligent in employment and supervision
when they failed to investigate her claims of discrimination, retaliation, and violation of laws.
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She avers that her reasonable accommodation request was denied again on October 15, 2014,
which led her to contact a Senator in October 2014, December 2014, January 2015, and June 2015.
Complainant contends that her reasonable accommodation request was ultimately approved on
August 3, 2015, without the submission of additional medical documentation.

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 law”).

Disparate Treatment

With respect to the discrete acts alleged, to prevail in a disparate treatment claim, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792(1973). Complainant 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 Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of a
particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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 (2000).

In this instance, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination based on disability and reprisal, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions.

As to Complainant’s claim that she was removed from a compressed work schedule, Agency
officials affirmed that the temporary removal of the compressed work schedules applied to all BAS
employees in Washington, D.C. ROI, at 104-105, 110, 118, 122, 138. Management officials
testified that the compressed work schedules were suspended due to operational needs. Id.
Specifically, management wanted to ensure that employees were completing assignments timely
and accurately. Id. The suspension was scheduled for 90 days and, thereafter, management would
re-evaluate based on employee performance. Id. Compressed work schedules were reinstated to
Complainant’s team on January 1, 2014. Id. at 104.

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Regarding the claim that Complainant received written counseling from the Deputy Director, S3
affirmed that she observed Complainant talking with coworkers and told them that she was sure
they had work to do. S3 stated that Complainant responded, “I have work to do. What about
you?” which caused S3 to issue written counseling for disrespectful conduct. ROI, at 124.
According to one of the coworkers involved in the incident, Complainant’s response was directed
to S3 in a questioning tone. Id. at 444. Complainant averred that she was talking to a coworker
and not S3. Id. at 96. S3 affirmed that she viewed Complainant’s conduct as unacceptable and
that Complainant’s behavior warranted the written counseling. Id. at 124.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant withdrew her request for a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
or reprisal as alleged.

Hostile Work Environment

To establish a claim of harassment a 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 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).

Therefore, 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 her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

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Again, the Commission notes that it only can evaluate the facts based on the weight of the evidence
presented. The Commission concludes that Complainant has not shown that she was subjected to
a discriminatory or retaliatory hostile work environment. The cited incidents lack sufficient
severity or pervasiveness to constitute a hostile work environment and the record reflects that the
alleged incidents were more likely the result of routine supervision, personality conflicts, and
general workplace disputes and tribulations. Even assuming that the alleged conduct was
sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show
that the Agency’s actions were based on discriminatory or retaliatory animus. As a result, the
Commission finds that Complainant was not subjected to a hostile work environment as alleged.

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. 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).

In general, reassignment is the reasonable accommodation of last resort and should be considered
only when (1) there are no effective accommodations that would enable an employee to perform
the essential functions of his or her current position or (2) accommodating the employee in the
current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n); EEOC
Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should
reassign the employee to a vacant position that is equivalent in terms of pay, status, and other
related factors. If there are no vacant equivalent positions, then the agency should reassign the
employee to a lower-level position that is closest to the current position. Id.

The Commission finds that the Agency’s actions did not violate of the Rehabilitation Act. The
record evidence establishes that Complainant failed to demonstrate that she needed reasonable
accommodation to perform the essential duties of her position. Complainant’s second-level
supervisor (S2) affirmed that Complainant’s reasonable accommodation request was denied on
July 10, 2013, with the advisement of the Office of General Counsel (OGC). ROI, at 107. S3
stressed that Complainant’s submitted medical documentation did not support her request and the
Agency did not have an out-based office in Atlanta. Id. at 120. Nevertheless, as an Agency Human
Resources Specialist explained, the Agency made extensive efforts to locate a position to reassign
Complainant. Id. at 156. S2 noted that management officials contacted the Atlanta Regional
Office on Complainant’s behalf, but they were unable to transfer Complainant because she lacked
the requisite claims experience and there were no available positions at the grade level she was
requesting. Likewise, Nashville did not have vacancies and S3 noted that Complainant was not
trained to perform the work in Nashville. Id. at 107, 110, 121.
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S2 stated that inquiries were made with Complainant’s prior office and that management
forwarded a series of job announcements to Complainant in August 2013. S2 affirmed that
management offered to review Complainant’s resume and S3 stated that management called in
favors to assist Complainant in transferring to Atlanta. Id. at 107, 120-121, 126.

We note that Complainant did not identify a vacant funded position into which she could have
been reassigned during this time, and there is no evidence of one in the record. Complainant has
an evidentiary burden to establish that it is more likely than not that there were vacancies during
the relevant time period into which she could have been reassigned. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01986308 (July 31, 2002). While the Agency has a duty to make a good
faith effort to locate a vacant position for which an individual with a disability is qualified, it is
under no obligation to create a new position for that individual. Complainant v. U.S. Postal Serv.,
EEOC Appeal No. 0120111541 (June 12, 2014); Nowak v. U.S. Postal Serv., EEOC Appeal No.
0120065231 (May 30, 2008), req. for recon. den’d, EEOC Request No. 0520080685 (Sept. 4,
2008). Nevertheless, in lieu of reassignment to Nashville or Atlanta, the Agency offered to assist
Complainant with a hardship transfer, which Complainant declined.

In the absence of medical documentation showing that Complainant’s condition necessitated the
reasonable accommodation of a reassignment to Nashville or Atlanta, we find that the Agency did
not violate the Rehabilitation Act when it denied Complainant’s request for reassignment.
Accordingly, the Commission finds that the Agency did not deny Complainant reasonable
accommodation in violation of the Rehabilitation Act.

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 decision finding that Complainant
did not establish that she was discriminated against as alleged.

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 2, 2018
Date