[Redacted], Diane B., 1 Complainant,v.Dennis R. McDonough, Secretary Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2020004410 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane B.,1 Complainant, v. Dennis R. McDonough, Secretary Department of Veterans Affairs, Agency. Appeal No. 2020004410 Hearing No. 430-2018-00051X Agency No. 2004-0590-2017101209 DECISION On July 31, 2020, 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 July 10, 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. 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 Psychology Technician, GS-0181-09, at the Agency’s Veterans Medical Center in Hampton, Virginia. On March 13, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her discrimination and a hostile work environment on the bases of disability (physical) and in reprisal for prior protected EEO activity when: 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. 2020004410 2 1. From January 15, 2016 until August 7, 2017, Complainant received repeated requests via email and personal text messaging from her first line supervisor; 2. On November 21, 2016, Complainant received a less than favorable performance evaluation from her supervisor; 3. On February 8, 2017, Complainant received no response when she submitted a request to be placed in the leave donor program; and 4. On February 8, 2017, Complainant’s request for a reasonable accommodation was denied. Complainant stated that she experiences complications from several conditions including migraines, temporomandibular joint disorder, chronic degenerative disc disease, and patellofemoral syndrome. Complainant averred that she has a record of impairment because she is recognized as a 100 percent disabled veteran and her employee file contains a Veterans Disability Hiring Authority Preference documentation. Complainant reports to the Director, Primary Care Mental Health and Behavioral Health Labs (S1). Complainant averred that S1 was aware Complainant had a medical disability and became aware in August 2016, during a meeting concerning her leave usage for her medical conditions with the union representative. Report of Investigation (ROI) at 96. S1 averred that she has no medical documentation regarding Complainant’s medical condition and that Complainant did not have any work limitations and her medical condition “does not affect her ability to perform her work assignment.” S1 also stated she was unaware of Complainant having any prior EEO activity. Complainant’s second-level supervisor was the Assistant Chief, Psychology and Acting Coordinator of Research (S2). She averred she had no knowledge of Complainant having a disability or any prior EEO activity. ROI at 157-158. On August 15, 2016, Complainant stated she received repeated requests via email and text messages from S1 regarding her accountability and leave use for medical care. ROI at 78. The record shows the emails and texts actually occurred on September 1, 2016 and another on September 15, 2016, regarding Complainant’s leave without pay status. ROI at 119. On or about November 21, 2016, Complainant received her performance appraisal for the Fiscal Year 2016. ROI at 82. Her supervisor issued Complainant a “Fully Successful” rating. Complainant received an “Outstanding” rating the year before. S1 told Complainant during the Mid-Year review discussion that she believed that Complainant was less engaged than she had been and asked Complainant if anything had changed. Complainant told the supervisor that she intended to file an EEO complaint. Complainant asserted that her statement of intent was the basis of her protected EEO activity. 2020004410 3 On January 31, 2017, Complainant emailed the Local Reasonable Accommodation Coordinator (LRAC) and informed him that she needed surgery and wanted to telework while she recovered for eight weeks. LRAC responded the same day that a reasonable accommodation was not appropriate for her circumstance since her condition was not permanent. He advised Complainant that a light duty assignment or the use of the Family Medical Leave Act (FMLA) might be more suitable. On February 8, 2017, Complainant emailed S1 informing her that she would be having surgery on February 21, 2017, and that she would be out of the office until April 19, 2017. S1 averred that no request for accommodation for a medical condition or impairment was made. Instead, Complainant requested telework “in order to maintain workload and productivity following surgery.” ROI at 147. Complainant did not submit medical documentation reflecting her doctor’s recommendation for an accommodation. ROI at 111. Complainant did not have sufficient hours of accrued sick and annual leave to cover the entire period. Regarding her request for telework, S1 told Complainant that management does not allow unlicensed staff members to telework. She also stated this is a decision made by the Chief of Mental Health. Complainant believed that management did not follow the appropriate process regarding her request to telework. The record shows S1 approved Complainant’s request to be placed on the leave donor program on February 21, 2017. ROI at 140, 548. Due to an administrative error, and staffing shortages in the Human Resources Office, it took longer than expected to process Complainant’s request to be part of the voluntary leave donor program. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter initially granted the Agency’s Motion for Summary Judgment regarding claims (1), (3) and (4). Complainant subsequently withdrew her hearing request and the AJ remanded the complaint to the Agency for issuance of a final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant focuses her arguments on claims 3 and 4. She contends the Agency erred in their decision finding she was not an individual with a disability. She asserts the record contains no evidence that the Agency engaged in an interactive process and that it failed to provide her a reasonable accommodation. Accordingly, Complainant requests that the Commission reverse the final decision. 2020004410 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”). Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim (2), S1 stated that she rated Complainant as Fully Successful based on her performing her duties satisfactorily during the rating period. S1 noted that during a Mid-Year Review discussion, she shared concerns with Complainant’s performance and apparent lowered engagement with the team. S1 added that Complainant did not get involved in activities and projects beyond her regular duties. As a result, her evaluation was lower, because S1 believed that Complainant had been less involved during this fiscal year than she had been in the previous. With respect to claim (3), Complainant’s request to be placed in the leave donor program was approved by management, but administrative errors held up processing. 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 animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanation for its actions were pretext intended to mask a discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal. 2020004410 5 Denial of Reasonable Accommodation 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 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). Here, Complainant requested telework for approximately eight weeks while recovering from surgery to “maintain workload and productivity.” Complainant indicated that she did not provide medical documentation to management officials in support of her request, and she failed to provide any further information about what condition was being addressed by surgery. Management denied the request because it found that Complainant’s circumstance was not appropriate for reasonable accommodation and no unlicensed staff members were allowed to telework. Complainant included a request to participate in the voluntary leave transfer program along with her request, which was approved by her supervisors. We find that the Agency correctly concluded that Complainant's medical condition was transitory, and therefore not a qualifying disability entitling her to a reasonable accommodation. See Idell M. v. Dep't of Agric., EEOC Appeal No. 0120140792 (Aug. 4, 2016) (finding complainant was not entitled to a reasonable accommodation when recovering from surgery on her left foot after all medical documentation indicated that the condition was temporary); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122572 (Dec. 4, 2014) (finding no evidence of qualifying disability within the meaning of the ADAAA when Complainant had a leg injury that required two surgeries and her recuperation periods were no more than two to four weeks). Complainant’s voluntary leave transfer program application was subsequently processed. Under these circumstances, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Hostile Work Environment To establish a hostile work environment claim, 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). 2020004410 6 Therefore, to prove her harassment claim, Complainant must establish that he 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. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Accordingly, we find that Complainant has not shown that she was subjected to discrimination, reprisal, or a hostile work environment. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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. 2020004410 7 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. 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. 2020004410 8 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