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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal No. 2021000651 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joana C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000651 Agency No. 200I-0673-2020101254 DECISION On November 2, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 9, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Certified Nursing Assistant at the VA Medical Center in Tampa, Florida. Complainant’s first-level supervisor at the time relevant to this complaint was the Assistant Chief Nurse (“S1”). Complainant’s second-level supervisor was the Chief Nurse (“S2”). Complainant’s third-level supervisor was the Associate Director of Patient Care/Nursing Services (“S3”). On March 11, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her disability and age (65) when: 1. In October 2017, S3 ordered Complainant to leave the work unit. 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. 2021000651 2 2. From October 23, 2017 through September 26, 2018, Complainant was denied leave and she was assigned an alternate work assignment instead of a light duty assignment for an on-the-job injury. 3. In May 2018, Complainant was reassigned from the Poly Trauma/Chronic Pain Outpatient Clinic to Spinal Cord Injury Outpatient Clinic. 4. From October 15, 2018 through May 2019, Complainant was assigned to the Haley Cove Nursing Administration Office without job assignments, isolated from staff, and not provided an accommodation in the form of a cushioned chair, computer wrist rest, and footrest. 5. From September 26, 2018 through June 2019, Complainant was stripped of her Certified Nursing Assistant license. 6. From May 2019 through June 7, 2019, Complainant was assigned to the Spinal Cord Injury Nursing Administration Office without job assignments, isolated from staff, and not provided an accommodation in the form of a cushioned chair, computer wrist rest, and footrest. 7. From October 2018 through May 2019, Complainant was exposed to cleaning and insecticide products that triggered her medical condition. 8. Complainant’s reasonable accommodation request of October 12, 2018, for a sedentary position with no direct patient contact or a telework position was not granted. 9. On December 20, 2019, Complainant was issued an unfavorable annual performance evaluation for FY 2018. 10. On June 5, 2019, S3 instructed Complainant to apply for disability retirement or be terminated. 11. From June 7, 2019 through September 19, 2019, Complainant was forced to use her sick and annual leave. 12. In October 2019, Complainant was never issued a performance evaluation for FY 2019. 13. From September 20, 2019 through November 15, 2019, Complainant was forced to use her sick and annual leave. 2021000651 3 14. Effective November 15, 2019, Complainant was removed from her agency employment. After an Agency investigation of her complaint, Complainant was provided a copy of report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on November 9, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation: Claims 4 and 6 - 8 Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. Here, Complainant identified her disabilities as a fracture of her left radius, resulting in a deformed wrist, and a sensitivity to environment irritants resulting in two episodes of angioedema. We will assume without deciding that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Complainant requested reasonable accommodations for her disabilities when she requested a sedentary position with no patient care responsibilities, preferably full-time telework so that she would not be exposed to chemical irritants, starting in October 2017. Complainant states that rather than provide her with telework, the Agency provided her with light duty positions in various administrative offices without patient care responsibilities but also without her requested accommodations of a cushioned chair, computer wrist rest, and footrest. Complainant also testified that she was exposed to chemicals when housekeeping employees used them to clean the office space. Regarding claim 4, Complainant claimed that from October 15, 2018 to May 2019, she was assigned to Haley Cove Nursing Administration Office without job assignments, isolated from staff and not provided an accommodation in the form of a cushioned chair, computer wrist rest and footrest. However, S2 (born 1965) explained that Complainant was assigned to Haley Cove in an office in order to provide her with light duty office work within the physical limitations her medical documentation indicated. Regarding claim 6, S3 explained that Complainant requested to be returned to the SCI building due to the complaints about interactions with veterans outside of the CLC building. Further, S3 stated that Complainant had not requested a cushioned chair, computer wrist rest or a footrest. 2021000651 4 Regarding claims 7 and 8, Complainant alleged that her reasonable accommodation requests of October 12, 2018, for a sedentary position with no direct patient contact, or for a telework position, were not granted. Agency officials testified that they attempted several different accommodations to try to assist Complainant in continuing her employment with the Agency, including reassigning her to light duty positions with no patient care responsibilities. However, Complainant did not find these accommodations to be completely effective and sought a full- time telework position where she would not be at risk of reinjuring her wrist during a patient care episode and where she would have no risk of being exposed to chemicals. S3 testified that Human Resources (HR) conducted a search for a vacant funded position within Complainant’s disability-related restrictions for which Complainant could qualify but could not locate any such position within the Agency. S3 testified that Complainant was removed from her position due to her medical inability to complete her duties and the fact that no position for reassignment could be identified by HR as a reasonable accommodation. In sum, the record evidence shows that the Agency properly engaged with Complainant in a prolonged attempt to provide her with reasonable accommodation so she could work within her medical restrictions. Numerous accommodations were attempted, including several assignments of sedentary office work with no patient contact. However, Complainant ultimately sought a full-time telework position, which could not be located. The Agency’s obligation to continue the reasonable accommodation process here ended when Complainant’s medical restrictions prevented her from performing the essential functions of her position of record and no vacant funded position for reassignment could be identified as a reasonable accommodation. As such, we conclude that Complainant failed to prove that the Agency violated the Rehabilitation Act as alleged. Disparate Treatment: Claims 1 - 3, 5, 9 - 10, and 11 - 14 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021000651 5 Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As evidence of management’s discriminatory motives based on her age, Complainant alleged that once, on October 12, 2017, a Registered Nurse (RN) on duty stated to Complainant, “You’re not getting any younger.” Complainant testified, as evidence of management’s discriminatory motives based on her stated disabilities that management failed to provide her with a reasonable accommodation for her disabilities as she requested. Regarding claim 1, Complainant alleged that in October 2017, S3 ordered her to leave the work unit. However, S3 denied any knowledge of this event and there is no other evidence to support Complainant’s allegation. Regarding claim 2, Complainant claimed that from October 23, 2017 through September 26, 2018, Complainant was denied leave and assigned an alternate work assignment instead of light duty assignment for an on-the-job injury. S1, however, explained Complainant was granted leave based on the patient care needs of the hospital evaluated at the time of the requests. S1 said Complainant frequently requested holidays off and was granted as many as could be allowed in a fair and equitable manner. Further, S1 explained that any employee in a light duty status was placed in the SCI/Polytrauma/Rehab Alternate Work Assignment group. S1 stated that in concern for an injured employee’s safety, such an employee is placed on day shift hours, from 0730 to 1600 Monday to Friday. S1 stated that this arrangement allows a greater management presence to avoid further injuries. She stated that Complainant was placed in this group when her physician placed her on duty restrictions. Regarding claim 3, Complainant claimed that in May 2018, she was reassigned from the Poly Trauma/Chronic Pain Outpatient Clinic to Spinal Cord Injury Outpatient Clinic. S1 stated that Complainant was never assigned or temporarily or permanently transferred to the Chronic Pain Outpatient Clinic. She noted that Complainant was “floated there to help out sometimes.” Regarding claim 5, Complainant asserted that from September 26, 2018 through June 2019, she was stripped of her Certified Nursing Assistant license. S1 and S2 stated that they were not aware of this matter. Regarding claim 9, Complainant alleged that on December 20, 2019, she was issued an unfavorable annual performance evaluation for FY 18. 2021000651 6 However, S1 stated in FY18, Complainant was given a rating of Fully Successful in all three elements in her Performance Appraisal as well as an overall rating of Fully Successful, which was deemed an appropriate rating for her performance. Regarding claim 10, Complainant alleged that on June 5, 2019, S3 told her to apply for disability retirement or be terminated. S3 asserted that she told Complainant that her reasonable accommodation request (for a position with full-time telework) was denied after the HR Specialist was unable to find a suitable position for her reassignment based on her medical limitations. She informed Complainant of possible next steps. Regarding claims 11 and 13, Complainant claimed she was forced to use her sick and annual leave. S1 denied forcing Complainant to use her sick and/or annual leave. It appears Complainant used leave because she did not believe the accommodations provided to her were effective. Regarding claim 14, Complainant asserted that effective November 15, 2019, she was removed from her agency employment. S3 testified that Complainant was removed from her position due to her medical inability to complete her duties and the fact that no position for reassignment could be identified by HR as a reasonable accommodation. The record contains a copy of Notice of Removal Decision Effective Date dated November 12, 2019. Therein, the Director stated that on August 9, 2019, Complainant was issued a decision to remove her from agency employment due to inability to perform the essential functions of her position. Specifically, the Director stated that from August 9, 2019 to November 7, 2019, the Agency conducted an additional position search period to find an open funded position in compliance with her medical restrictions. However, the Agency was “unable to find an open funded position in compliance with your restrictions for which she was qualified, the removal decision will be effective November 15, 2019.” Here, the responsible management officials have articulated legitimate, non-discriminatory reasons for the events at issue. Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discriminatory motivations based on her age or disabilities. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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 a protected basis - in this case, her disabilities and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2021000651 7 See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, the preponderance of the evidence does not establish that Agency management were motivated by discriminatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her age or disabilities. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021000651 8 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. 2021000651 9 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 17, 2022 Date