[Redacted], Elise S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020002255 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002255 Agency No. 200H-0646-2017104850 DECISION On January 10, 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 December 13, 2019, 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. ISSUE PRESENTED The issue presented is whether the Agency discriminated against and subjected Complainant to a hostile work environment, based on disability (lupus and depression) and/or in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Respiratory Therapist at the Agency’s Pittsburgh VA Healthcare System facility in Pittsburgh, Pennsylvania. 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. 2020002255 2 On August 29, 2017, Complainant initiated contact with an EEO Counselor. On October 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of disability (lupus and depression) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From October 2016, through August 10, 2017, she was harassed as follows: a. Subjected to harassing comments and emails, unfair scheduling, orientation training, and committee participation; b. Work and time management was scrutinized; c. Asked to provide additional medical documentation; d. Accused of abusing sick leave; e. Had her lights turned off; f. Subjected to inappropriate postings on her locker; and g. Subjected to an unfair division of work assignments. 2. In March 2017, Complainant’s first-level supervisor (S1) instructed her to provide medical certification for weekly medical appointments; 3. On May 28, 2017, she was bypassed for overtime; 4. On June 12, 2017, she was bypassed for overtime; 5. On July 17, 2017, she was bypassed for overtime; and 6. On August 10, 2017, Complainant’s second-level supervisor (S2) instructed her to provide medical certification for her weekly medical appointments. On November 24, 2017, the Agency’s Office of Resolution Management (ORM) issued a Notice of Partial Acceptance, dismissing claims 2, 3, and 4 as independently actionable claims. Specifically, the Agency determined that these incidents were not raised with an EEO Counselor within forty-five days of occurrence. However, the Agency retained claims 2, 3, and 4 as incidents related to Complainant’s overall harassment claim. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 2020002255 3 Following the issuance of the report of investigation, on May 16, 2018, the Agency permitted Complainant to amend her complaint and ordered a supplemental investigation. The amended complaint added the following claims: 7. Since approximately April 2018, and continuing, other employees have continued to turn off the overhead lights whenever Complainant leaves the room, and then turn off the task lights when Complainant turns the overhead lights back on; 8. Since approximately early April 2018, and continuing, Complainant has had to use a mobile computer workstation that she feels is unsafe; 9. On April 17, 2018, Complainant had to use sick leave to take the day off because of the hostile work environment; 10. On April 19, 2018, she was bypassed when overtime was made available to other employees; and 11. On April 23, 2018, Complainant learned that a new schedule had been posted that denied her earlier request for a reasonable accommodation; and after she tried to discuss it with her second-level supervisor (S3), he told her, “things are escalating and you cannot come into my office and speak to me anymore without a union representative present.” First Final Agency Decision (FAD1) In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which only considered Complainant’s initial complaint and did not address claims 7, 8, 9, 10, or 11. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In the FAD, the Agency reiterated ORM’s dismissal of claims 2, 3, and 4 on the grounds of untimely counselor contact but noted that the matters were considered as evidence in support of Complainant’s overall harassment claims. With respect to the remaining claims, the Agency determined that management officials provided legitimate, nondiscriminatory, and non- retaliatory reasons for their actions. Regarding claim 5, the allegation that Complainant was bypassed for overtime on July 17, 2017, the Agency accepted S1’s explanation that he inadvertently approved another staff member and gave Complainant the overtime when he learned of the mistake. As for claim 6, S3 stated that he requested that Complainant provide medical certification for ongoing weekly use of sick leave at the advisement of Human Resources. S3 added that Complainant’s weekly early-out use of sick leave, with short notice, was causing gaps in coverage. 2020002255 4 The Agency determined that Complainant offered no evidence to rebut the veracity of the reasons provided, nor did she offer any probative evidence to show that disability or reprisal played a role in management’s actions. The Agency found no evidence in the record to suggest that management’s reasons were a pretext or that her protected classes were factors in the actions at issue. Turning to Complainant’s harassment claim, the Agency found that Complainant failed to establish a link between the conduct she identified and her disability or prior EEO activity. On January 10, 2020, Complainant filed the instant appeal. Complainant submitted a brief in support of the appeal on February 10, 2020. Second Final Agency Decision (FAD2) On March 17, 2020, the Agency issued a Rescission of Final Order, stating that due to an administrative error, its Office of Employment Discrimination Complaint Adjudication (OEDCA) was not informed of Complainant’s amended claims (claims 7, 8, 9, 10, and 11). Complainant objected on March 20, 2020. On March 24, 2020, the Agency issued its Rescission of Final Agency Decision or Final Order (FAD2). Therein, the Agency restated that OEDCA never received notification of Complainant’s amended complaint, which caused it not to consider Complainant’s amended claims at the time FAD1 was issued. FAD2 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In FAD2, the Agency reaffirmed the dismissal of claims 2, 3, and 4 for untimeliness. The Agency accepted claims 5, 6, 9, 10, and 11 as discrete claims of disparate treatment, as well as evidence in support of Complainant’s harassment claim. FAD2 included the same analysis concerning the initial complaint. With respect to the remaining claims, the Agency determined that management provided legitimate, nondiscriminatory, nonretaliatory reasons for their actions. Regarding claim 9, S2 stated that Complainant requested leave, which he approved, and indicated that she was leaving because the only computer available was the “high one” and she did not feel like dealing with two of her coworkers, CW1 and CW2. For claim 10, S2 testified that overtime was distributed in accordance with Agency policy. As for claim 11, S2 explained that when discussing an upcoming schedule, Complainant stated she had repeatedly spoke to S2 about scheduling her off days consecutively. S2 denied making the statement as alleged, but stated that once Complainant left his office and was in the common area, he informed Complainant that he did not feel comfortable discussing things with her one-on-one and asked that she bring union representation whenever she wished to discuss issues in the future. 2020002255 5 On April 21, 2020, Complainant appealed FAD2.2 CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency erred by failing to meet its burden of production as to certain claims; failed to consider numerous elements of the hostile work environment claim; failed to recognize, or analyze, Complainant’s rebuttal evidence of pretext, which Complainant argues establishes causation; and failed to address a claim of failure to provide an effective reasonable accommodation. According to Complainant, the conclusions in FAD2 remain contrary to the factual record and controlling law. On May 12, 2020, the Agency indicated that it would file a response to Complainant’s appeal within 30 days of receipt of a brief regarding the second Notice of Appeal, or 60 days from the date the second Notice of Appeal was filed on April 21, 2020. Complainant, through counsel, submitted a brief on May 21, 2020. However, the Agency did not provide a response until September 23, 2020. Given the untimely submission of the agency's brief, the Commission shall not consider the agency's arguments made therein. 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 (EEO MD-110), 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”). Dismissal for Untimely Counselor Contact The Agency properly dismissed claims 2, 3, and 4 as independently actionable claims for untimely EEO Counselor contact. EEOC Regulation §1614.105(a)(1) provides that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Here, claims 2, 3, and 4 occurred in March 2017, June 2017, and June 2017, respectively. However, Complainant did not initiate contact with an EEO Counselor until August 29, 2017, beyond the 45-day limitation period. 2 The Commission did not assign a separate docket number to this appeal. The instant decision covers the matters raised in both appeals. 2020002255 6 On appeal, Complainant has presented no arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, we find no reason to disturb the Agency’s dismissal of these claims. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her disability and in reprisal for protected EEO activity, we find that the management officials articulated legitimate, nondiscriminatory reasons for their actions. Regarding claim 5, the record reveals that Complainant worked overtime on the date in question. With respect to claim 6, the request for medical certification on August 10, 2017, management officials noted that Complainant’s leave requests were approved, and the medical certifications were requested pursuant to Agency policy. As for claim 10, S1 stated that he followed the overtime policy. Moreover, he later discussed the issue with union officials and, it was determined that the overtime policy was properly followed. As for claim 11, the record indicates ongoing tension between Complainant and S1 with input from union officials. S1 affirmed that he asked Complainant to bring union representation in the future when she wished to discuss issues, as he was no longer comfortable discussing issues with Complainant in a one-on-one setting. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely 2020002255 7 motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. 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 protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). 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. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. For example, a review of the record shows that one of the major issues comprising Complainant’s harassment claim relates to her coworkers turning off the overhead lights whenever she leaves the room. On June 6, 2018, S1 sent a department-wide email addressing the lights. Further, the record shows that the Agency conducted a foot candle study, instructed employees to get a consensus before turning the lights off, and specifically informed Complainant’s coworker, CW1, that future occurrences could result in disciplinary action. The remaining allegations concern overtime distribution, which witnesses testified was an issue for multiple employees and not exclusive to Complainant; interpersonal interactions; and work distribution. With respect to work division, management officials all testified that work assignments are divided and agreed upon by the respiratory therapists. Complainant reported inappropriate postings on her locker and the record reveals that employees were instructed not to post signs on other employees’ lockers. 2020002255 8 Further, once management officials identified the individual that posted a reminder on Complainant’s locker, the individual was advised not to place items on another staff member’s locker. In terms of the mobile computer workstation, Complainant acknowledged that the issue of the Workstation on Wheels impacted everyone. Moreover, Complainant’s supervisor testified that he entered a follow-up work order for the computer and contacted Information Technology within hours of Complainant’s report. On appeal, Complainant asserts that the Agency failed to address evidence that Complainant was harassed and did not address incidents of discriminatory scheduling, orientation training, committee participation, scrutiny of work and time management, a “repeated pattern” of demands for medical documentation and certification, accusations of sick leave abuse, work assignments, and a “repeated pattern” of denial of overtime opportunities. Even if we accept these allegations as alleged, we do not find a nexus between Complainants disability or protected activity. To the extent that Complainant argues that she had to utilize sick leave because of a hostile work environment, Complainant’s supervisor affirmed that he approved sick leave for Complainant on April 17, 2018. S1 reported that Complainant entered his office and requested to take sick leave because there were four other therapists working and the only available computer was the “high” computer. S1 stated that Complainant told him that she did not feel like dealing with CW1 and CW2 that day. Accordingly, we find that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Reasonable Accommodation To the extent that Complainant is alleging that she was denied 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. On appeal, Complainant asserts that the Agency failed to rebut her failure to accommodate claim and maintains that the Agency failed to accommodate her lupus by equalizing the work schedule to allow her two consecutive days off for rest. We note, however, that the record does not indicate that Complainant submitted an accommodation request or medical documentation to support this request for two consecutive days off. 2020002255 9 Complainant previously requested reasonable accommodations but failed to do so with respect to her request for two consecutive days off. For example, in early August 2017, Complainant experienced a flare-up of her lupus that resulted in a large lesion on her face. Complainant requested to be allowed to carry a workload that did not have patient contact for seven days as a reasonable accommodation, which was granted. Further, management officials testified that, on three separate occasions, Complainant submitted documentation demonstrating that her medical providers wanted her to take time off to recuperate and she was granted the medically needed time off as a reasonable accommodation in all instances. The record indicates that Complainant expressed a desire to change her weekend schedule, but she did not indicate that it was a reasonable accommodation request. Rather, email correspondence from August 31, 2018 shows that Complainant acknowledged that she had not submitted a reasonable accommodation request related to her desired schedule. Complainant has presented no evidence that the Agency was unwilling to reasonably accommodate her or otherwise denied her reasonable accommodation. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. 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 decision finding that Complainant was not discriminated against, nor harassed, as alleged. 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). 2020002255 10 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. 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. 2020002255 11 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 September 16, 2021 Date