[Redacted], Gale A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2020004079 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gale A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004079 Agency No. 200H-0757-2018104829 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 20, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 an Education Program Support Assistant (PSA) at the Agency’s Central Ohio Healthcare System facility located in Columbus, Ohio. She filed a complaint alleging that she was subjected to discrimination and harassment based on disability (severe anxiety, severe depression, panic attacks, decompensation of emotional stability, claustrophobia, hives, and shingles) when from March 2018 to June 29, 2018, she was subjected to belittlement, harassment, called out at meetings, favoritism, a lack of compassion, and rumors as evidenced by: a. during the last week of March 2018 or first week of April 2018, her supervisor, S1, the Chief of Education, discussed her medical information with two other employees; 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. 2020004079 2 b. on May 16, 2018, she learned that her request for reasonable accommodation was denied; c. on or about May 18, 2018, she was no longer allowed to telework; and d. on June 29, 2018, she felt compelled to resign (constructive discharge) due to the ongoing harassment to which she was subjected. 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. Complainant requested a final decision, and the Agency issued a final decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Because the Agency found that claim d constituted a mixed case matter, Complainant was given appeal rights to the Merits Systems Protection Board (MSPB) on that issue. On June 18, 2020, Complainant’s appeal to the MSPB regarding claim d was dismissed for lack of jurisdiction. Because the Commission has no jurisdiction over this claim, it will not be addressed in this decision.2 This appeal followed. Complainant alleged that demeaning duties were being taken away from others and given to her by S1, and that the new tasks made her feel worthless. She also maintained that S1 defamed her character, subjected her to excessive criticism, attacked her at meetings, which would leave her in tears, and basically called her a liar. In mid-February 2018, she stated that she questioned S1 about her additional duties and was belittled, both in front of others as well as behind closed doors. Complainant felt that the treatment was designed to make her resign. Regarding claim a, Complainant stated that she was told by a coworker, C1, that S1 had discussed Complainant’s medical information with two other employees, C2 and C3. C1 did not hear the conversation but maintained that she believed that S1 must have discussed Complainant’s disability because she heard one of the employees state that, “[Complainant] is not sick. She is at home babysitting her granddaughter.” C1 interpreted that comment to mean that the employee was informed of Complainant’s disability. S1 denied disclosing Complainant’s medical information. C2 also denied discussing anyone’s medical information with S1, and C3 did not recall such a conversation. Regarding claims b and c, the record indicates that S1 was appointed Chief of Education Services in November 2017. In March 2018, S1 sent her three employees an email stating that because staffing levels had been reduced 50%, telework was no longer an option because they were needed to cover duties that could only be performed in the office. 2 The Agency is reminded, however, that by operation of 29 C.F.R. § 1614.302(b), if it has not already done so, it is required to process Complainant’s allegation of discrimination regarding claim d. Because Complainant filed a mixed case complaint with the Agency then it should have notified her of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on claim d. 2020004079 3 S1 told her employees that she had given the removal of telework a great deal of thought but felt it was no longer viable with so few staff. All three staff members were told they could telework through April 27, 2018, but that thereafter, all would be expected to work on-site. Complainant, unsuccessfully, attempted to offer possible solutions so that she and the other employees could continue with telework. On April 5, 2018, Complainant filed a request for an accommodation of her disability. Complainant requested telework three days per week. The reason for the request was her depression, panic attacks, and anxiety, which all were “heightened” when she was in the office. Prior to her request, S1 stated that neither she nor other management officials were aware of Complainant having a disability. Complainant’s request was denied, on May 16, 2018, but she was offered an alternative accommodation. In lieu of teleworking, she was offered a private office with a noise cancelling machine to accommodate her. The offer was based on the fact that when the Local Reasonable Accommodation Coordinator asked Complainant’s medical care provider to clarify her request, the provider responded that, “the stressors in question are noise in the office, constant talking in the office, disruptions, close working quarters, and the commute to/from work.” Complainant appealed the initial denial of her telework request and indicated that she also suffered from claustrophobia. Upon appeal, a second level reviewer determined that a window could be installed in her office so that she could see people approaching, that she be approved periods of “uninterrupted” time, and that she be allowed to place a note on her door that she not be interrupted or approached at certain times. Complainant declined any alternative to her request for telework. According to management, allowing Complainant to telework would make it impossible for her to perform all the essential duties of her position as outlined in her position description. S1 stated that when she first assumed the duties of Chief, she discovered that Complainant was the only PSA in the office and that she was not performing all the duties of her position description. She stated that she met with Complainant to discuss the need for her to perform all the duties required. According to S1, she advised Complainant that in addition to her making Education Services purchases, she needed to serve as back-up conference scheduler one day per week, obtain office supplies weekly, make or order copies of handouts for trainings, create spreadsheets to track Education Service requests, and to provide support for New Employee Orientation. She also explained to Complainant that she was needed in the office to assist customers who walked in for assistance. S1 stated that Complainant had been rated “Exceptional” on her performance evaluation that was completed by the prior Chief but indicated that she was not rated on all the duties she should have been performing. 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 2020004079 4 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”). Upon review of the record, we find that based on the preponderance of the evidence that Complainant did not establish that she was subjected to discrimination or harassment based on her disabilities. We note in this regard that Complainant failed to establish that: (1) any disclosure of her confidential medical information was made by S1; (2) S1’s legitimate, nondiscriminatory reason for canceling telework for her staff was a pretext for discrimination; and (3) the Agency did not offer her an effective alternative accommodation or that allowing her to telework would not have removed essential functions from her position. With respect to Complainant’s claim of a hostile work environment, we find that a finding of a hostile work environment is precluded regarding claims a, b, and c by our determination that Complainant failed to establish that these actions were motivated by discriminatory animus. Moreover, we find no persuasive evidence that any other matter Complainant deemed harassing was motivated by discrimination, and that the interactions between Complainant and S1 were, for the most part, work-related and not based on her disability. CONCLUSION Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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). 2020004079 5 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. 2020004079 6 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation