[Redacted], Herta K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 2, 2021Appeal No. 2020003271 (E.E.O.C. Aug. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herta K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003271 Hearing No. 490-2020-00006X Agency No. 200I-0614-2019102983 DECISION On April 11, 2020,2 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 April 17, 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. ISSUES PRESENTED The issues are whether the Agency should be sanctioned for issuing an untimely final decision; and whether Complainant established that the Agency subjected her to discrimination or harassment based on her disability or in reprisal for prior protected EEO activity. 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 While we note that Complainant’s April 11, 2020 appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final decision on April 17, 2020. 2020003271 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (Grade 2) at the Agency’s Medical Center in Memphis, Tennessee. On May 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her disability (neck and back pain), and in reprisal for prior protected EEO activity (prior EEO complaint numbers: 200I-0614-2018100944, 200I-0614-2018103567, and 200I-0614- 2018106210), when: 1. Complainant was subjected to a hostile work environment from June 2018 to July 16, 2019, because: a. her request for assistance to move equipment was ignored, resulting in injury to Complainant; b. Complainant was forced to return to work in a hostile work environment; c. on March 30, 2019, Complainant was “assaulted” by a coworker (CW); and d. there were “time and attendance issues”; 2. on March 15, 2019, Complainant was denied medical treatment when a Nurse Manager (NM1) (no disability, prior EEO activity) failed to submit Complainant’s completed Office of Workers Compensation (CA-2) documents; 3. on April 4, 2019, Complainant was reassigned to the Cardiac Clinic; 4. on July 20, 2019, Complainant was denied leave under the Family and Medical Leave Act (FMLA); 5. on August 9, 2019, Complainant was denied an opportunity for promotion to Nurse, Grade 3; 6. on August 12, and 13, 2019, Complainant was denied a reasonable accommodation, with respect to time and attendance; and 7. on August 17, 2019, Complainant was charged 24 hours of Absent Without Leave (AWOL) for July 14-16, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. On January 9, 2020, the AJ issued an order dismissing Complainant’s hearing request, and he ordered the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110. 2020003271 3 On April 11, 2020, Complainant filed the instant appeal and requested that the Commission sanction the Agency with a default judgment for its failure to issue a timely final decision. On April 17, 2020, the Agency issued a final decision and concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency opposed Complainant’s appeal. On June 17, 2020, Complainant filed another appeal brief.3 CONTENTIONS ON APPEAL Through her attorney, Complainant requests that the Agency be sanctioned with a default judgment for its failure to timely comply with the AJ’s order to produce a final decision. Complainant asserts that the Agency’s final decision should have been issued by March 20, 2020, at the latest, and that the Agency did not provide any communication for its delay. Complainant argues that a default judgment is warranted because the Agency failed to produce the final decision, which is arguably similar to a failure to produce an investigation file. The Agency states that Complainant’s request for a default judgment is based on an approximate three-month delay in receiving her requested final decision. However, the Agency asserts that the delay does not warrant a default judgment due to the circumstances of the global pandemic. Specifically, the Agency states that due to the pandemic, it had a limited support team available and developed new processes to move from mail to electronic dispatches, which led to delays in issuing final decisions. The Agency also argues that sanctions are not warranted because Complainant has not shown any significant prejudicial harm or other consequences related to justice caused by the delay, and that the delay did not have an apparent adverse effect on the integrity of the EEO process. Regarding the merits of Complainant’s complaint, the Agency asserts that its final decision thoroughly and accurately detailed the relevant facts and applied the appropriate legal standards to those facts. The Agency requests that the Commission uphold its final decision. STANDARD OF REVIEW 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 Chap. 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 3 The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant filed her appeal on April 11, 2020, and her deadline to file any statement or brief was May 11, 2020. We find that the brief filed on June 17, 2020 is untimely. Even if Complainant’s deadline is extended to account for the issuance of the final decision on April 17, 2020, we find that her June 17, 2020 brief is still untimely, and as such, we will not consider the arguments in the untimely brief. 2020003271 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”). ANALYSIS AND FINDINGS Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). On appeal, Complainant requested that the Commission sanction the Agency with a default judgment for its failure to timely issue a final decision. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision 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). We find that sanctions are not warranted in this case. Complainant argued that the Agency’s final decision should have been issued by March 20, 2020, which was 60 days after when the Agency is presumed to have received the AJ’s order on January 13, 2020. The Agency issued the final decision on April 17, 2020, approximately one month later. We find that the Agency adequately explained that the delay was caused by the effects of the pandemic on its operations. Further, we find that Complainant did not provide any arguments regarding a prejudicial effect of the Agency’s non-compliance; the consequences resulting from the delayed final decision; or the effect on the integrity of the EEO process. Accordingly, we decline to grant Complainant’s request of a default judgment against the Agency as a sanction. 2020003271 5 Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on her disability and prior protected EEO activity, and that she was subjected to unwelcome conduct. However, we find that Complainant has not established that any of the complained of incidents occurred because of her protected classes. For example, Complainant stated that on March 5, 2019, she requested assistance from the Acting Charge Nurse (ACN) (no disability, no prior EEO activity) who turned and walked away from Complainant, but ACN stated that she was not aware of Complainant’s disability or prior EEO activity. ROI at 66, 137. Complainant stated that on March 30, 2019, CW hit her with some documents and Complainant called the police. CW stated that she reported that Complainant was creating a hostile work environment and using the police as a form of harassment. Complainant was detailed to another unit while the Agency conducted a fact-finding investigation. After the fact-finding was completed, the Chief Nurse (CN) (no disability, prior EEO activity) determined that CW’s harassment allegations were not substantiated, and that the incident was a disagreement between Complainant and CW, who both displayed unprofessional behavior. Complainant stated that CN denied her request to not return to “2South.” ROI at 68, 142-3, 171, 67. The record does not contain any evidence to show that these events were due to Complainant’s disability or prior protected EEO activity. Regarding the “time and attendance issues,” Complainant stated that an individual emailed NM1 and another Nurse Manager (NM2) (no disability, no prior EEO activity) and instructed them to charge Complainant’s leave to annual leave, sick leave, or leave without pay, following the expiration of the 45 days of continuation of pay for workers’ compensation. ROI at 74. However, Complainant only identified the emailer by name, and there is no evidence that the individual was motivated by Complainant’s protected classes. As such, we find that Complainant did not establish that the Agency subjected her a hostile work environment based on her disability or in reprisal for prior protected EEO activity. 2020003271 6 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 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 disability and in reprisal for prior protected EEO activity for claims 2-5, and 7, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 2, NM1 stated that she completed her portion of Complainant’s claim forms online, and that to her knowledge, all the CA-2 forms have been filed. ROI at 102. Regarding claim 3, CN and NM2 stated that Complainant was not reassigned to the Cardiac Clinic. However, NM2 stated that Complainant was detailed to another unit during the fact-finding investigation into the March 30, 2019 incident with CW. ROI at 111, 125-6. For claims 4 and 7, NM2 stated that she denied FMLA leave because Complainant did not inform her supervisor that she was invoking FMLA and submitted incomplete FMLA documents on June 26, 2019, and July 23, 2019. NM2 stated that when Complainant provided the correct documents, her FMLA request was approved. ROI at 131, 134. Regarding claim 5, NM1 stated that she was not aware that Complainant was denied a within-grade step increase, and that she did not know when Complainant was due for the increase.4 ROI at 104. 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 motivated the 4 Complainant stated that employees are eligible for a promotion ranging from a step increase within the current grade or a grade increase. ROI at 86. Complainant informed the EEO Investigator that she received a step increase on September 3, 2019, retroactive to July 26, 2019. ROI at 96. Complainant did not provide any evidence showing that the Agency denied her a promotion to the Grade 3 level. 2020003271 7 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. Here, Complainant did not provide any evidence and only made bare assertions that management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her disability, or in reprisal for prior protected EEO activity, for claims 2-5, and 7. 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. Complainant stated that on August 12, 2019, she verbally requested from NM2 an accommodation of additional time to complete work and personal tasks, following a car accident on August 7, 2019. Complainant stated that she needed increased time to take a restroom break, retrieve lunch, and walk rounds. ROI at 89. NM2 stated that on August 23, 2019, Complainant sent an email stating that, due to her physical limitations, “it is highly probable that [her] time off the unit will be increased or extended,” and that Complainant has not returned to work since August 23, 2019. NM2 stated that Complainant’s request for accommodation was not denied. ROI at 133. The term “reasonable accommodation” means, in pertinent part, modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. See 29 C.F.R. §1630.2(o)(1)(ii). Reasonable accommodations may include but are not limited to: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 29 C.F.R. §1630.2(o)(2)(ii). 2020003271 8 While Complainant stated that she verbally requested an accommodation of additional time to perform work and personal tasks on August 12, 2019, we find that she did not explain how her requested accommodation would enable her to perform the essential functions of her position. We also find that it is not clear if additional time to walk rounds would lower Complainant’s performance standards. However, the Commission has long held that the Agency is not required under the Rehabilitation Act to lower the performance standards of a position to accommodate an individual with a disability. See Graziano v Dep’t of the Navy, EEOC Agency Appeal No. 0120070745 (Apr. 15, 2009); Olson v. Dep’t of Treasury, EEOC Appeal No. 01983200 (July 19, 2001). In addition, it appears that Complainant requested leave as an accommodation on August 23, 2019, and we note that Complainant did not allege that she was denied any leave since August 23, 2019. Accordingly, we find that Complainant has not established that the Agency failed to accommodate her. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we decline to sanction the Agency, and we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability or in reprisal for 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). 2020003271 9 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. 2020003271 10 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 August 2, 2021 Date Copy with citationCopy as parenthetical citation