Lyda F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120172109 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyda F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172109 Agency No. 200305492016102811 DECISION On May 27, 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 May 4, 2017, final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN), VN-0610-II, at the Agency’s North Texas Health Care System in Dallas, Texas. Complainant was employed with the Agency from June 15, 2015, through April 1, 2016. Complainant has the condition of atopic dermatitis which causes her skin to crack, flake, and itch. Complainant stated that she was diagnosed with the condition as a child, but her symptoms are controlled with topical medication. In December 2015, Complainant’s unit was moved to the basement of the facility where she and other employees shared a workspace with employees in the Wound Care Unit. 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. 0120172109 2 Complainant requested to be relocated to a different workspace because working in or near the Wound Care Unit made her susceptible to skin infections. On December 29, 2015, Complainant was temporarily relocated to an office on the ninth floor of the facility. On January 4, 2016, Complainant submitted a request for reasonable accommodation in the form of a reassignment. Specifically, Complainant requested to work at one of the Telenursing Contingency Phones in a different area of the hospital and away from the Wound Care Unit and basement. Complainant stated in her request that her condition placed her at risk for “contacting multi-resistant micro-organisms that lay dormant on surface tops.” Management determined that Complainant’s request was not supported by sufficient medical documentation and that Complainant did not have a condition covered by the Rehabilitation Act. In the alternative to Complainant’s requested accommodation, management requested that Infection Prevention Control complete a bioburden swab in the Wound Care Unit. The results of the testing indicated that the area was safe to work. Further, management provided Complainant with a desk, headset, and a non-touch keyboard to reduce contact with surfaces in the Wound Care Unit. In addition, other employees were instructed to maintain universal hand and workspace hygiene precautions. Management, however, continued to work with Human Resources to search for a potential reassignment for Complainant. Management offered and Complainant utilized Family Medical Leave Act (FMLA) leave in the meantime. On March 15, 2016, Complainant met with her first-line supervisor (S1). Complainant averred that S1 threatened to terminate her employment if she failed to renew her RN license on or before March 31, 2016. S1 denied threatening Complainant and stated that she merely informed Complainant that her RN license was scheduled to expire on March 31, 2016. Nevertheless, on April 1, 2016, the Agency terminated Complainant’s employment for failure to maintain an active RN license, which was a condition of her employment. On June 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of disability (atopic dermatitis) when: on March 15, 2016, the Agency denied her request for a reasonable accommodation and, on April 1, 2016, the Agency terminated her employment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission 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). In its FAD, with respect to Complainant’s reasonable accommodation claim, the Agency assumed without finding that Complainant is an individual with a disability under the Rehabilitation Act. However, the Agency determined that it took reasonable actions to accommodate Complainant’s disability. 0120172109 3 Specifically, the Agency noted that it requested a bioburden swab of Complainant’s work area and provided her with a desk, headset, and non-touch keyboard to limit her contact with surfaces. Complainant was also granted leave under the Family and Medical Leave Act (FMLA) while her reasonable accommodation request was pending. With respect to Complainant’s argument that management denied her request by not permanently relocating her to another area of the facility, the Agency noted that Complainant was not entitled to the accommodation of her choice so long as she is offered an effective accommodation. The Agency reasoned that Complainant failed to show that the accommodation management offered was ineffective. Moreover, the Agency found that Complainant provided insufficient evidence to rebut that management took reasonable actions to accommodate her disability. As for Complainant’s disparate treatment claim, the Agency indicated that management met its burden of articulating a legitimate, nondiscriminatory reason for terminating Complainant’s employment. Specifically, Complainant failed to maintain her RN license. The Agency determined there was no evidence of pretext and noted that Complainant conceded that she waited until the last minute to renew her license. Likewise, the Agency explained that Complainant failed to establish that she was subjected to a hostile work environment because she failed to show that she was subjected to unwelcome personal slurs or other denigrating or insulting verbal or physical conduct; failed to show discriminatory intent or bias; and failed to provide sufficient evidence for a factfinder to make a severe or pervasive assessment of her harassment claim. Moreover, the Agency argued, all the conduct stemmed from Complainant’s dissatisfaction with S1 about job- related matters, i.e., termination of employment and an alleged failure to provide a reasonable accommodation. Accordingly, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant alleges for the first time that her termination was based on reprisal for her protected EEO activity. Further, Complainant claims that the Agency “mis-defined” her claims and that her claims should have been defined as follows: (1) On March 16, 2016, the Agency failed to reasonably accommodate her physical disability of atopic dermatitis; (2) On March 16, 2016, the Agency denied Complainant’s request for a permanent relocation away from the Wound Care Nursing unit in reprisal for her prior engagement in protected EEO activity; (3) On April 1, 2016, the Agency terminated Complainant because of her physical disability of atopic dermatitis; and (4) On April 1, 2016, the Agency terminated Complainant in reprisal for her prior engagement in protected EEO activity. Additionally, Complainant contends that she has demonstrated that management failed to accommodate her disability. Further, Complainant argues that the record evidence shows that the Agency terminated her based on her disability and in reprisal for prior EEO activity. Accordingly, Complainant requests that the Commission reverse the FAD or, in the alternative, remand the matter for further investigation. 0120172109 4 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”). 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 a qualified individual with disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §1630.9. For purposes of analysis, we shall assume, without so finding, that Complainant is a qualified individual with a disability despite Complainant’s assertion that she does not consider herself to be an individual with a disability. In the instant case, we find that Complainant did not establish that she was denied a reasonable accommodation for her disability as alleged. The Agency explained that Complainant’s original request was denied because she did not have a disability covered by the Rehabilitation Act, the requested accommodation would not be effective, and the medical documentation Complainant provided did not support the request. ROI, at 156. The record demonstrates that management engaged in the interactive process and offered various accommodations to Complainant for her condition. Specifically, management officials enlisted the services of Infection Prevention Control to conduct a bioburden swab, and it was determined that the work area was safe for working. Id. at 99. In addition, the Agency offered Complainant a desk, headset, and non-touch keyboard to limit her contact with surfaces. Id. at 156. Other employees were instructed to maintain universal precautions at all times in the Telenursing work area, such as hand hygiene and cleaning the area before and after work. Id. Further, S1 stated there was no available space to relocate Complainant. Id. at 99. Complainant declined the Agency’s suggested accommodations, and failed to offer any reasonable alternative accommodation that would enable her to perform the essential functions of her job. Complainant subsequently received approval to use FMLA leave while the matter was addressed. Id. at 98. S1 stressed that management was still working on Complainant’s reasonable accommodation request and that Complainant remained out on FMLA through the time of her termination. ROI, at 98-99. S1 indicated that management continued to work with Human Resources to find Complainant a reassignment to a new place or position. Id. at 104. However, we find that Complainant is not entitled to the accommodation of her choice. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 019315005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). 0120172109 5 Here, Complainant has presented no evidence that the offered alternative accommodations would have been ineffective. Therefore, the Commission finds that Complainant has not established that the Agency failed to provide her with a reasonable accommodation. Moreover, we find that Complainant has failed to show that the Agency’s explanation is a pretext designed to conceal discriminatory animus. Disparate Treatment 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 Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department 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 Products, Inc., 530 U.S. 133 (2000). Here, we find that assuming, arguendo, Complainant established a prima facie case of discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for Complainant’s termination. S1 affirmed that on March 28, 2016, she contacted Complainant, who was out on FMLA leave, to inform her that Human Resources had notified S1 that Complainant’s RN license was due to expire on March 31, 2016. ROI, at 95. A Human Resources Specialist explained that she received an alert from the credentialing department stating that Complainant’s license would soon expire. Id. at 134-135. S1 denied threatening to terminate Complainant, but explained that the facility policy required termination for failure to maintain the appropriate license. Id. at 95-96. S1 stated that on March 31, 2016, the Board of Licensing had not updated the status of Complainant’s license to reflect good standing and Human Resources generated a termination letter. Id. at 97, 101. The Chief Nurse of Ambulatory Care and the Human Resources Specialist asserted that each nurse was responsible for having an unencumbered nursing license to work at the Agency. Id. at 114, 116, 133. Complainant was terminated in accordance with the Agency’s Handbook, which indicated that Complainant was responsible for maintaining all qualifications required for appointment and for providing evidence of her qualifications as a RN. Id. at 161. The Termination Letter noted that because Complainant’s license to practice as a RN expired on March 31, 2016, Complainant had failed to maintain a qualification required for continued employment. Id. The weight of the evidence supports the conclusion that Complainant was removed solely because her license had expired. As such, we cannot find that Complainant has established that the Agency’s actions were pretext for discrimination. Hostile Work Environment 0120172109 6 Finally, with respect to Complainant’s harassment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of harassment must fail. A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, Complainant made no showing of any action on the part of the Agency that was sufficiently severe or pervasive to create an intimidating or offensive work environment. 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. 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. 0120172109 7 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation