Marguerite L.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jul 20, 2018

0120162613 (E.E.O.C. Jul. 20, 2018)

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

Marguerite L.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120162613

Agency No. 2003-0010-2015104147

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the July 13, 2016 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Specialist,
GS-0301-11, at the Agency’s Workforce Management Consulting Office in New Orleans,
Louisiana. In July 2014, Complainant filed an EEO complaint alleging that a co-worker
subjected her to sexual harassment. Complainant and the co-worker were separated and
Complainant later was granted full-time telework. While teleworking, Complainant continued
performing her previous duties and communicated with her colleagues. Complainant claimed
that co-workers treated her with contempt because she had reported the alleged harasser.

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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Complainant stated that in African-American culture, “when one African-American reports
another, we tend to be ostracized.” Complainant claimed that her co-workers ignored her emails,
scolded her, and acted in a condescending manner toward her.

On May 13, 2015, Complainant submitted a request for reasonable accommodation to her
supervisor (S1) and the Director. Complainant specifically requested a lateral transfer outside of
the Workforce Management Consulting Office because she felt the hostility from her co-workers
had taken a toll on her health. Complainant indicated that she was willing to submit medical
documentation in support of her request. The Director responded that Complainant should
complete the Agency’s request for reasonable accommodation form and submit it to the
Reasonable Accommodation Coordinator. Complainant completed the form and included a
December 4, 2014 letter from her doctor stating that Complainant was experiencing “extreme
situational anxiety related to workplace stress.” Complainant’s doctor indicated that
Complainant experienced “intense anxiety, palpitations, difficulty sleeping, spells of intense
stress resulting in feelings of exhaustion and depression.”

On June 15, 2015, the Acting Director informed Complainant that management was attempting
to find an appropriate reassignment for her, including a potential reassignment to a position in
the Employee Education Service. Further, the Acting Director assured Complainant that she
would not have to come into the office while teleworking and that management would mail any
items she needed to her home along with any postage she would need to mail items back to the
office.

On June 24, 2015, the Reasonable Accommodation Coordinator informed Complainant that she
did not qualify for a reasonable accommodation; however, management was attempting to grant
her request for reassignment. On June 25, 2015, the Acting Director issued Complainant a
proposed reassignment. The proposal stated that Complainant would remain on her current
position description, but her position would be realigned with the Financial Business Operations
group. In addition, Complainant was offered a student trainee of her choosing who would serve
as administrative support and as a liaison between Complainant and her co-workers. On July 1,
2015, Complainant declined the proposed reassignment because she believed she would still
have interaction with co-workers from her team.

On August 17, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of disability and in reprisal for prior protected EEO
activity when:

1. On May 17, 2015, the Workforce Education Program Manager denied
Complainant’s request for reasonable accommodation; and

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2. On May 30, 2015, the Program Manager approved Complainant’s request for
reassignment to Finance; however, she was expected to work with a team who
still worked with her co-worker who allegedly sexually harassed her.2

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 EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant’s
request the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency noted that Complainant submitted a February 16, 2016 letter from her
doctor that indicated that Complainant was diagnosed with Post-Traumatic Stress Disorder
(PTSD) in May 2015. The Agency further noted that there was no other documentation in the
record supporting this diagnosis. Nonetheless, the Agency assumed that Complainant was
diagnosed with PTSD in May 2015, but found that Complainant failed to notify management of
her condition. Complainant requested reasonable accommodation in the form of reassignment
away from her previous co-workers, but Complainant admitted that she did not inform officials
that she had been diagnosed with PTSD. Furthermore, Complainant stated that she did not have
any work restrictions as a result of her condition. The medical documentation Complainant
submitted in support of her reasonable accommodation request did not include any reference to
PTSD; rather, it stated that she suffered from work-related stress. Thus, the Agency concluded
that Complainant failed to show that she was entitled to reasonable accommodation under the
Rehabilitation Act.

Even assuming that Complainant was entitled to reasonable accommodation, the Agency found
that management officials provided Complainant an effective accommodation to address her
stated medical needs. Specifically, Complainant requested reassignment to a position in which
she would not come in contact with her previous co-workers. Management officials provided
Complainant full-time telework and an assistant of her own choosing to act as a liaison between
her and any of her previous co-workers who she may have had to contact. Accordingly, the
Agency concluded that Complainant failed to show that she was denied reasonable
accommodation in violation of the Rehabilitation Act.

Finally, the Agency found that management had articulated legitimate, non-retaliatory reasons
for its actions as to Complainant’s reassignment request. In particular, management officials
affirmed that they denied Complainant’s reassignment request because there was no position
available matching Complainant’s experience and skill set. Management officials confirmed,
however, that they provided Complainant with an effective reasonable accommodation including
full-time telework and an assistant acting as a liaison. The Agency concluded that Complainant
failed to show that management’s reasons for its actions were pretextual.

2 The Agency originally incorrectly stated Complainant’s allegation and, during the
investigation, Complainant clarified her intended claim.
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As a result, the Agency found that Complainant had not been subjected to reprisal or a hostile
work environment as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

The Commission notes that 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. To establish a denial of 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. The Commission will assume without deciding (for the
purposes of this decision) that Complainant is an individual with a disability.

Complainant had been granted full-time telework following her filing an EEO complaint alleging
that a co-worker subjected her to sexual harassment. ROI, at 130-31. On May 13, 2015,
Complainant submitted a request for reasonable accommodation in the form of a reassignment.
Id. at 184. Complainant stated that she was seeking a reassignment because the “hostile
environment…has taken a toll over my health.” Id. In support, Complainant submitted a
December 4, 2014 letter from her doctor indicating that Complainant experienced “extreme
situational anxiety related to workplace stress.” Id. at 190. Complainant submitted a written
request for accommodation stating that she had experienced retaliation from her colleagues after
filing her EEO complaint which included eyerolling, glaring, and exclusion from
correspondence. Id. at 181.

On June 24, 2015, the Reasonable Accommodation Coordinator informed Complainant that she
did not qualify for a reasonable accommodation, but that management was nonetheless seeking a
reassignment for her. ROI, at 185. On June 25, 2014, the Director offered Complainant a
reassignment to the Financial Business Operations group with a new supervisor, but performing
the same duties. Id. at 193. Complainant believed that this arrangement would be ineffective
because she would still have to communicate with the team led by her alleged harasser. Id. at
194. S1 then explained to Complainant that she could select a student trainee to act as a liaison
to communicate with her former colleagues. Id. at 195. On July 1, 2015, Complainant declined
the reassignment. Id. at 193.

Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. The record evidence establishes that Complainant failed to demonstrate that
she needed reasonable accommodation to perform the essential duties of her position.
Complainant acknowledged that she had no work restrictions and could perform the essential
duties of her position. ROI, at 149.
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Complainant’s submitted December 2014 medical documentation only recommended that
Complainant be allowed to telework as much as possible for approximately four months. Id. at
190. While Complainant claimed that she experienced complications from PTSD, she did not
submit any medical documentation indicating this condition to support her reasonable
accommodation request and she admitted that she did not inform any Agency officials of this
condition. Id. at 142. Thus, there is no evidence in the record establishing that Complainant
needed an accommodation to perform the essential duties of her position.

Nonetheless, Agency officials sought to grant Complainant’s request for reassignment and
offered her a position in the Financial Business Operations group performing the same duties
while still teleworking full time. Complainant rejected this reassignment because she believed
she would still have to interact with her former co-workers. The Agency offered a student
trainee as a liaison, but Complainant still declined the reassignment. While Complainant may
not have been offered the exact reasonable accommodation of her preference, an employer is not
required to provide the precise accommodation the employee or applicant wants, so long as the
accommodation offered is an effective one under the circumstances of the situation. U.S.
Airways v. Barnett, 535 U.S. 391, 400 (2002). Here, Complainant has presented no evidence
that the provided alternative accommodations were ineffective. Therefore, the Commission finds
that Complainant has not established that the Agency failed to provide her with a reasonable
accommodation.

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 prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose not to request 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.
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Here, Complainant asserted that based on her prior protected EEO activity, management officials
subjected her to a hostile work environment. The Commission finds that Complainant has not
shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment.

Moreover, 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
retaliatory animus. As explained above, Complainant’s request for a reassignment as a
reasonable accommodation was denied because her submitted medical documentation did not
support her request. ROI, at 161. The Reasonable Accommodation Coordinator noted that
Complainant’s documentation only cited “situational stress” and failed to identify any life-
limiting condition. Id. Nonetheless, management attempted to find Complainant a new position
and offered her reassignment under a new supervisor and in a new group. Id. The Acting
Director stated that the proposal would have minimized any contact Complainant had with her
former colleagues, that Complainant had already been approved for full-time telework, and she
would have only had to interact with certain individuals any time she had to report to the office.
Id. at 155-56. Complainant declined the proposal. Id. at 156. The Acting Director affirmed that
management reached out to the Employee Education Service, but they had no positions
available. Id. at 156.

The Commission concludes that Complainant has not shown that she was subjected to a
retaliatory hostile work environment. Moreover, to the extent Complainant claims that she was
subjected to disparate treatment, the Commission finds that, as discussed above, Complainant
has not demonstrated that the Agency’s explanation for its actions was pretext for reprisal. As a
result, the Commission finds that Complainant was not subjected to reprisal or a hostile work
environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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:
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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.
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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

July 20, 2018
Date