[Redacted], Barbie W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 2021Appeal No. 2020004332 (E.E.O.C. Dec. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbie W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004332 Agency No. 200H-0310-2018104623 DECISION On July 26, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 7, 2020 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant was hired in March 2018, as a probationary Legal Administrative Specialist, GS- 0901-07, at the Agency’s Regional Benefits Office in Philadelphia, Pennsylvania. On September 24, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (anxiety, depression, post-traumatic stress disorder, and kidney stones), and reprisal (prior protected EEO activity) when, from March 2018 to August 9, 2019: 1. She was subjected to sexual harassment by a coworker and upon reporting it, management failed to adequately address it; 2. She was verbally counseled; 3. She was discouraged from participating in her EEO complaint; 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. 2020004332 2 4. She was denied attendance at a meeting to discuss her reasonable accommodation request; and 5. On August 2, 2018, Complainant’s requested reasonable accommodation was denied.2 Complainant identified the following responsible officials: the Supervisory Training Specialist who supervised her between March and June 2018 (S1a); a second Supervisory Training Specialist who supervised her beginning on June 25, 2018 (S1b); the National Pension Call Center Manager who served as her second-line supervisor (S2), and the Reasonable Accommodation Coordinator (RAC). At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On April 12, 2019, Complainant requested a final agency decision, and in accordance with Complainant’s request, the Agency issued its decision finding that Complainant had not proven that she had been subjected to discrimination or reprisal as alleged. 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”). Sexual Harassment - Incident (1) To establish a case of sexual harassment, Complainant must show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 2 Complainant also alleged that on August 6, 2018, she was denied her right to union representation. The Agency dismissed this allegation for failure to state a claim, noting that the proper forum for claims regarding union representation was the negotiated grievance process. IR 42. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal. 2020004332 3 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant averred that she was harassed by a co-worker (CW) in her training class beginning in March or April 2018. She stated that CW caressed her hair without her consent and that she felt shocked and violated by his conduct. She did not report any other incidents involving physical contact. Complainant further stated that he tried to avoid contact with CW but that he would still gawk at her and make remarks to the effect that she was getting “a lot of attention from men.” However, she also stated that she did not inform S1a about CW’s behavior until May 4, 2018, and that management continued to leave her in close proximity to CW through June 28, 2018, despite her repeated requests to be moved away from him. IR 80-85. S1a affirmed that she was first made aware of Complainant’s concerns on May 4, 2018, when Complainant informed her about the hair-touching incident. S1a further stated that when she asked Complainant if she was going to file a complaint against CW, Complainant informed her that she only wanted to be moved away from CW and that she expressed a desire not to elevate the incident. A memorandum dated July 2, 2018 stated that CW was terminated during his probationary period due to inappropriate behavior in the workplace. IR 97, 164-68, 176-79, 270, 272. Thus, there is no evidence that any similar behavior recurred. Accordingly, the Commission finds that the Agency took prompt and effective corrective action in response to Complainant's report of sexual harassment and that there is no basis for imputing liability to the Agency. Denial of Reasonable Accommodation 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; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that she 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 her with a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). We will assume that Complainant is a qualified individual with a disability. Complainant averred that on August 3, 2018, the RAC notified her that her reasonable accommodation request had been denied without giving her a reason for the denial, and that she submitted a request for reconsideration on August 7, 2018. IR 88-89, 224. The RAC averred that she first met with Complainant to discuss her accommodation request on April 9, 2018, and that a second meeting was held on July 2, 2018 to discuss accommodations that included frequent restroom breaks, time to see her therapist, and breaks during the workday for stress relief. IR 107-09. 2020004332 4 The RAC further stated that S2 approved as Complainant’s reasonable accommodations the following: frequent bathroom breaks; ability to flex in and out; approval of annual leave, sick leave, and leave without pay when necessary; and an option of teleworking if her conditions were exacerbated by the work environment. The RAC stressed that these accommodations were effective in that they addressed her medical limitations, and that Complainant requested reconsideration. IR 110. Complainant has presented no evidence demonstrating that the offered accommodations were ineffective. As to S1b denying her request to participate in a meeting regarding her reasonable accommodation, Complainant herself provided an exact transcription of the email conversation between herself and S1b. In that conversation, S1b discussed Complainant’s duties performed the previous day, but appeared to have overlooked Complainant’s request to attend a meeting with the RAC. Complainant indicated that she sought approval to attend the meeting from another official and that S1b did not respond to her original request until after the scheduled start time of the meeting. Complainant has not presented any evidence indicating that this incident prevented her from participating in the interactive process or otherwise obtaining reasonable accommodation. In addition, Complainant has presented no evidence demonstrating that S1b acted with discriminatory or retaliatory animus in failing to timely approve her request. On the basis of the evidentiary record before us, we find that the Agency satisfied its obligation to provide reasonable accommodations for Complainant under the Rehabilitation Act. Disparate Treatment - Incident (2) 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, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1b articulated a legitimate and nondiscriminatory reasons for verbally counseling Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Complainant averred that the reason for S1b verbally counseling her on July 31, 2018, was that she had been leaving the premises for extended periods of time without prior approval. IR 86. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that S1b’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). 2020004332 5 When asked by the investigator to explain how the verbal counseling was related to her sex, disability, and prior EEO activity, Complainant replied that it was common knowledge that she was a female with a disability who was pursuing an EEO complaint. IR 86. Beyond this speculative assertion, however, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut S1b’s explanation or which would cause us to question S1b’s truthfulness as a witness. Since 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. And after reviewing that record, we find the evidence insufficient to establish the existence of a discriminatory or retaliatory motive on the part of S1b when she verbally counseled Complainant on July 31, 2018. Per Se Reprisal/Interference with Participation in the EEO Process - Incident (3) The Commission has held that the actions of a supervisor may be considered “per se” reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id. Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id. (citing Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018)). Here, Complainant alleged that she was informed that S1b had discussed Complainant’s EEO complaint with Human Resources (HR). Complainant further claimed that S1b informed her that HR was handling her complaint and that she was to have no further involvement in it. However, Complainant has not presented any evidence beyond her own statement to substantiate her claim. The record contains numerous emails between Complainant and the EEO Program Manager in which Complainant was provided information about the EEO process and the status of her EEO complaint. There is no persuasive evidence demonstrating that any Agency official attempted to interfere or dissuade Complainant or any other employee from participating in the EEO process. As such, we find that Complainant has not established that the Agency’s conduct was per se reprisal. Hostile Work Environment Finally, to the extent Complainant asserts that the incidents at issue amounted to unlawful harassment, we find that a finding of a hostile work environment is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 2020004332 6 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004332 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 December 2, 2021 Date Copy with citationCopy as parenthetical citation