[Redacted], Beatrice B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 2021Appeal No. 2020004288 (E.E.O.C. Dec. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatrice B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004288 Hearing No. 430-2018-00143X Agency No. 2004-0637-2017101940 DECISION 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 26, 2020, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant at the Agency’s Medical Center in Asheville, North Carolina. Complainant stated that she was assigned to this position in July 2016 as a reasonable accommodation. Report of Investigation (ROI) at 58-9. On January 31, 2017, Complainant emailed her first-line supervisor (S1) (disability, Caucasian) and requested to be moved back to her original desk because her new workspace was causing migraines; making her extremely cold; and causing glares on her screen due to her location near 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. 2020004288 2 a window. ROI at 137. On February 1, 2017, a Human Resources Specialist (HRS) informed Complainant that her previous medical documentation indicated that some of her symptoms were temporary, and HRS requested updated medical documentation. ROI at 141. On February 3, 2017, Complainant attended a meeting with S1 to discuss her request. ROI at 138. On February 7, 2017, Complainant’s second-line supervisor (S2) (disability, Caucasian) informed Complainant that she would swap desks with another employee. ROI at 159. Later in the day, on February 7, 2017, Complainant provided updated medical information, which recommended that Complainant be moved to a workstation away from the window and the air- conditioning unit. ROI at 143-6. On February 13, 2017, S1 issued a decision denying Complainant’s requested accommodation because the move would impact operations since Complainant’s work unit is located in the same office to promote teamwork, communication, and collaboration. However, S1 granted Complainant alternative accommodations of: (1) the ability to adjust window treatments to adjust the glare on her screen; (2) anti-glare screens; and (3) relocation of Complainant’s desk away from the heating/air unit. ROI at 238-9. On February 23, 2017, Complainant informed S1 that she disagreed with the decision. ROI at 150. S1 stated that on March 15, 2017, there was a meeting to discuss Complainant’s appeal of the decision on her reasonable accommodation request, and on March 20, 2017, Complainant was moved to a different office, which was the warmest room with no windows. On March 28, 2017, the Agency granted Complainant’s request to move back to her original office. ROI at 77, 177-8. Complainant averred that on March 27, 2017, S1 removed her duties of program tracking and informed her that a coworker would serve as Complainant’s back-up when Complainant was out of the office. Complainant noted that these duties were returned to her on May 22, 2017. Complainant claimed that on June 1, 2017, S1 asked why she was at the Union office; and on June 7, 2017, Complainant learned that S1 called the Union office and asked why Complainant was there. Complainant stated that on July 13, 2017, S2 called her “trouble.” ROI at 67-8. EEO Complaint On June 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her: 1. on the bases of race (African American) and disability (migraine headaches and possible seizures) when on February 7, 2017, and February 13, 2017, Complainant was denied a reasonable accommodation; and 2. when Complainant was subjected to non-sexual harassment in reprisal for her prior EEO activity (instant EEO complaint) by S1, who allegedly took job duties away from Complainant; asked Complainant why she was in the Union Office; called the Union Office to inquire about the nature of Complainant’s meeting with them; and allowed other employees to call her “trouble.” 2020004288 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s July 3, 2018, motion for a decision without a hearing and issued a decision without a hearing on May 20, 2020. The AJ found that the Agency did not dispute that Complainant was a qualified individual with a disability, but that a reasonable factfinder could find that it did not fail to accommodate her. In this case, the AJ noted that Complainant’s need for an accommodation did not arise until she made the Agency aware of her migraine issues related to an office move. The AJ found that Complainant’s physician recommended that Complainant be moved to a workstation away from the window and the air conditioning unit, and that the Agency did so. Complainant was not pleased with that workstation and was moved twice until she was moved to her requested location. The AJ determined that, while Complainant was displeased with her original workstations, the record did not support that Complainant’s desired location was the only effective accommodation, and that the Agency was allowed to attempt interim accommodations to determine their effectiveness. For claim 2, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for enlisting other employees to cover important duties when Complainant was unable to work a full 40 hours per week, and when S1 asked about the time Complainant spent at the Union office to properly account for her official time. The AJ also found that two witnesses did not recall the specific instance when Complainant was called “trouble,” but they suggested that S2 would jokingly state, “here comes trouble,” when she passed them in the hallway. The AJ then determined that Complainant did not establish pretext for discrimination, and that she did not provide evidence that challenged the Agency’s credibility or show that the actions were motivated by discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that the AJ erred when issuing a decision without a hearing, and she “should have made a greater effort to scrutinize this case.” Complainant asserts that the Agency’s motion for summary judgment was “not much more than a general denial,” and there was no basis for the AJ’s conclusion. 2020004288 4 Regarding her request for an accommodation, Complainant states the Agency acknowledged that she has a disability and is entitled to an accommodation;2 and that the fact that it was ultimately granted without hardship shows that there no reason for the denial. Complainant also argues that the Agency’s argument that the prior accommodations were “interim” is not supported by the record because the Agency’s responses were unambiguous that they were final. Complainant asserts that the Agency failed to engage in meaningful dialogue, and instead, delayed the process, but it is required to act expeditiously. Complainant states that the Agency offered “no explanation” for what it was doing prior to granting her request. Complainant argues that the Agency does not dispute that her supervisor called her a “troublemaker,” but dismissed it as simple teasing; however, supervisors may not tease employees or discourage the filing of complaints. Complainant asserts that when a supervisor denies making a statement, it is more reasonable to infer that the reason was not innocent. Complainant states that she laid out her description of events and there is no basis for making credibility findings in the Agency’s favor. Complainant also argues that the Agency’s articulated reasons are “not objectively defensible.” Complainant requests that the Commission reverse the AJ’s decision and the Agency’s final order. Agency’s Contentions The Agency asserts that Complainant’s appeal fails to address any facts or evidence that were not appropriately considered by the AJ when issuing her decision. The Agency states that Complainant argues that she should have instantaneously been granted the accommodation of her choice, without engaging in the interactive process for a reasonable accommodation, which is not based in law or fact. Regarding the hostile work environment claim, the Agency notes that the AJ found that management officials asserted legitimate, nondiscriminatory reasons for their actions, and Complainant only offered her subjective beliefs. The Agency asserts that Complainant did not take issue or challenge this finding on appeal, but instead argues that her union participation was not considered in the retaliation analysis; however, this argument fails to appreciate that the EEOC does not decide whether an individual is aggrieved as to their collective bargaining rights. The Agency requests that the Commission affirm its final order. 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not raise any arguments regarding her claim of race discrimination; as such, we will not address it in the instant decision. 2020004288 5 STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and THE Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS Decision without a hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that the AJ “should have made a greater effort to scrutinize this case,” but Complainant did not identify any disputed material facts on appeal. 2020004288 6 Complainant also argues that when a supervisor denies making a statement, it is more reasonable to infer that the reason was not innocent; and that the Agency’s articulated reasons are “not objectively defensible.” However, mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate her nor delay in providing an accommodation. On appeal, Complainant argues that the Agency delayed the process, and offered “no explanation” for what it was doing prior to granting her request. The Commission has held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Denese G.v. Dep’t of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016); Shealy v. Equal Employment Opport. Comm., EEOC Appeal No. 0120070356 (April 18, 2011); Villanueva v. Dep’t of Homeland Security, EEOC Appeal No. 01A34968 (Aug. 10, 2006). In determining whether there was an unnecessary delay, we are to consider (1) the reasons for the delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay. (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. EEOC Enforcement Guidance at Question 10, n.38. Here, we find that Complainant did not establish an unnecessary delay in obtaining a reasonable accommodation. The record shows that Complainant initially made her request on January 31, 2017, and the Agency immediately engaged in an interactive process when HRS requested supporting medical documentation on February 1, 2017, and the parties met to discuss Complainant’s request on February 3, 2017. ROI at 137-8, 141. 2020004288 7 Even before the Agency received Complainant’s medical documentation, S2 decided to move Complainant to a different desk to address some of Complainant’s issues. ROI at 157-9. Upon receipt of Complainant’s medical documentation, the Agency granted alternative accommodations, including the relocation of Complainant’s desk away from the heating/air unit. ROI at 147-8. In response to Complainant’s appeal of the reasonable accommodation decision, the parties met again on March 15, 2017, and the Agency moved Complainant to a different office, prior to granting her request to move her back to her old office on March 28, 2017. ROI at ROI at 77, 177-8. We find that the entire process took less than two months, during which the Agency repeatedly interacted with Complainant and tried alternative accommodations. We note that, while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Question 9. In this case, Complainant’s medical document stated that Complainant should be moved to a workstation away from the window and the air-conditioning unit, and the Agency acted in accordance with this recommendation. ROI at 143-6. Once the Agency determined that the alternatives were not effective, it granted Complainant’s requested accommodation to move her back to her original office. While Complainant preferred to have her request granted immediately, we find that the Agency properly engaged in the interactive process in its attempts to identify an effective accommodation, and it started to grant accommodations on February 7, 2017, which was approximately one week after Complainant made her initial request on January 31, 2017. As such, we find that Complainant did not establish that the Agency failed to accommodate her or that there was an unnecessary delay in accommodating Complainant. Retaliatory Harassment To establish a claim of harassment 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 classes; (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). To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). 2020004288 8 Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that Complainant belongs to a statutorily protected class based on the instant EEO complaint, and that she was subjected to unwanted verbal conduct. However, there is no evidence that any of the complained of conduct was due to her EEO activity. S1 averred that she did not learn of Complainant’s EEO activity until September 15, 2017, well after the alleged harassment, which Complainant did not dispute. ROI at 80. Insofar as the unwanted verbal conduct was alleged to have been in relation to Complainant’s union activity, the Commission has long held that involvement in union activities is not a protected basis under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 (2012) (as amended). See Mulligan v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 01A21675 (June 19, 2003); Elliot v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A42070 (June 3, 2004). Moreover, when a complaint of reprisal concerns involvement in union activity, and otherwise fails to identify EEO or other protected activity, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Dep’t of Justice, EEOC Request No. 05980273 (June 4, 1999); Leary v. Dep’t of the Navy, EEOC Petition No. 03920075 (Feb. 19, 1993). Regarding the allegation that S2 called her a “troublemaker,” Complainant argues that the Agency dismissed it as simple teasing, but when a supervisor denies making a statement, it is more reasonable to infer that the reason was not innocent. However, we find that S2 did not deny making the statement; rather, S2 stated that she did not recall this event and did not dispute that this occurred. However, S2 explained that she teases staff by calling individuals or groups “trouble” or “trouble-makers,” particularly those who are highly dedicated to their jobs, and it usually makes them laugh because they know that she has high respect for them and their work. ROI at 91. We note that Complainant’s witnesses (W1 and W2) support S2’s explanation. W1 averred that S2 once saw her and W2, and S2 stated, “oh, here comes trouble,” that was meant to be humorous when S2 smiled as she made the comment and they both laughed. W1 added that the comments were made as a “term of endearment,” and that it was meant to convey that the recipient was “anything BUT ‘trouble.’” ROI at 250-1. W2 corroborated that S2’s use of “trouble” was directed at her in a joking manner because when S2 sees W2, that means extra work for S2. ROI at 257. We find that Complainant did not provide any evidence to show a retaliatory motivation for the allegedly harassing incidents. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment in reprisal for her prior protected EEO activity. 2020004288 9 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her race or disability, nor subjected her to harassment in reprisal for her prior protected EEO activity. 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. 2020004288 10 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 13, 2021 Date Copy with citationCopy as parenthetical citation