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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020001261 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glenda D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001261 Agency No. 20DR-0742-2018103804 DECISION On November 20, 2019, 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 October 22, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-13, at the Agency’s Central Office, Veterans Health Administration, Office of Community Care located in Washington, DC.2 On July 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Black) and disability (bilateral carpal tunnel syndrome) 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. 2 Prior to a reorganization in fiscal year 2016, the Office of Community Care was referred to as the Chief Business Office. 2020001261 2 1. Between January 5, 2015, to present, the Executive Assistant (S1) failed to address Complainant’s reasonable accommodation requests for light duty, speech- to-text software, and telework. 2. Between January 2015 and 2016, S1 assigned Complainant duties that were beyond her medical restrictions and assigned Complainant a higher volume of work. 3. On unspecified dates in 2016, S1: a. denied Complainant’s request to temporarily telework so she could take care of her sick parent; b. did not approve Complainant’s grade/step increase; c. denied Complainant the opportunity for promotions when she did not personally inform Complainant of positions that were being advertised. Therefore, Complainant did not apply for the positions once they were announced; and d. did not provide Complainant with a mentor or training. 4. On June 9, 2017, Complainant became aware of her non-favorable fiscal year (FY) 2016 performance rating when she received an e-mail notification that it had been uploaded to her electronic personnel file. Prior to that, Complainant had not been informed that she was not performing up to standards. 5. On July 13, 2017, S1 untimely emailed Complainant her performance appraisal which should have been issued in May 2017. 6. On September 16, 2017, Complainant was assigned to assist the Acting Executive Director. On August 17, 2018, the Agency determined claims 1, 4, and 6 were timely raised discrete acts and accepted those claims for investigation as disparate treatment and as part of the overall harassment claim. The Agency dismissed claims 2, 3a, 3b, and 3d as discrete acts that were not timely raised within 45 days of occurrence. However, the Agency found those events were sufficiently related to the overall pattern of harassment and included them for consideration as part of the 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). In accordance with Complainant’s request, 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 as alleged. The Agency noted that regarding claim 3b, Complainant stated in her affidavit that the Executive Assistant did not deny her a grade/step increase. Thus, the Agency did not include this claim in the harassment analysis. 2020001261 3 Further, the Agency noted that regarding claim 6, in her affidavit Complainant clarified that no specific event occurred on this date and that S1 merely informed her that she would be assigned to work with the Executive Director. The Agency noted Complainant stated she was agreeable to the assignment. Thus, the Agency did not include this event in the analysis. On appeal, Complainant requests the Commission sanction the Agency for its failure to issue a final decision in accordance with her January 25, 2019 request. Alternatively, Complainant requests the Commission reverse the Agency’s final decision. In response, the Agency argues its actions do not warrant sanctions. Further, the Agency claims Complainant failed to establish she was subjected to disparate treatment or denied a reasonable accommodation. 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”). At the outset, we note that on appeal Complainant does not challenge the Agency’s partial dismissal of claims 2, 3a, 3b, and 3d as untimely discrete actions. Thus, we will not address those as discrete claims on appeal. Moreover, Complainant does not challenge the Agency’s decision not to address claim 3b in its harassment analysis or claim 6 in its disparate treatment analysis. Thus, we decline to examine those claims on appeal. Next, we address Complainant’s request for sanctions. EEO Regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency, or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). In the present matter, Complainant requested a final agency decision on January 29, 2019 and the final decision was not issued until October 22, 2019. With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a final decision in this case, we decline. While we will not impose a sanction in the present case since the delay in issuance of the Agency decision did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. See Adam F. v. National Aeronautics and Space Admin., EEOC Appeal No. 2020001073 (Feb. 9, 2021) (citation 2020001261 4 omitted). As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decisions. In the present case, we find the record in the present case adequately developed. Upon review, with regard to the timely raised discrete claims, we find Complainant failed to show the Agency’s actions were based on her race or disability. Complainant also failed to show that she was denied a requested reasonable accommodation or that the Agency required her to work beyond her medical restrictions. Further, we find that Complainant failed to establish she was subjected to harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were taken because of her race or disability. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020001261 5 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. 2020001261 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 June 21, 2021 Date