[Redacted], Krysten M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020000713 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Krysten M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000713 Agency Nos. 200P-0664-2015103723 200P-0664-2018101448 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 13, 2019 final decision concerning the two formal complaints which claimed unlawful 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., 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 Medical Supply Technician at the Agency’s La Jolla Veterans Affairs Medical Center in San Diego, California. Complainant filed two formal complaints on June 29, 2015 (“Complaint 1” - Agency No. 200P- 0664-2015103723) and January 12, 2008 (“Complaint 2” - Agency No. 200P-0664- 2018101448), respectively. The Agency consolidated the two formal complaints for processing. 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. 2020000713 2 Complainant claimed the Agency discriminated against her based on race (Pacific Islander), national origin (Philippines), disability, age (over 40), and in reprisal for prior EEO activity (current and prior EEO activity) when: Complaint 1 A. Complainant alleged she was subjected to a harassment/hostile work environment as evidenced by the following events: 1. On June 12, 2014, Complainant’s co-worker (CW1) spoke to her in a loud angry voice, pointing his index finger towards Complainant’s face and commented “You’re too old, Get out. Go home. You’re nothing. You just come over here and waste your time. You’re not working. You’re not helping. You are bullshit. You are shit.” 2. On or about June 2014, another co-worker (CW2) asked Complainant why she didn’t just retire 3. On July 11, 2014, CW2 asked Complainant if she ever considered having breast reduction surgery. 4. On or about August 1, 2014, CW2 pointed a finger at Complainant’s face and stated in a loud angry voice “Why don’t you just deliver this?” causing Complainant to lose 15 minutes of her lunch break. 5. On or about August 11, 2014, CW2 asked Complainant how old she was and commented “I think you are seventy-four years old, like my mom.” 6. On or about June 3, 2015, CW1 and CW2 were overheard by two other co-workers, saying that Complainant was “too old to work with (them).” 7. On May 28, 2015, CW2 accused Complainant of gossip and of creating a hostile work environment. 8. On September 30, 2015, the Medical Supply Technician Supervisor, also Complainant’s supervisor (S1), gave Complainant a memorandum threatening to remove her from modified duty, and issued Complainant a Temporary Transitional Duty Job Offer that was effective on September 2, 2015. 9. On November 4, 2015, CW2 spoke to Complainant in an angry voice and made untrue accusations about Complainant. 10. On November 25, 2015, a third co-worker (CW3) verbally attacked Complainant and made accusations that S1 wanted to fire Complainant. 2020000713 3 11. On December 11, 2015, S1 accused Complainant of violating her work restrictions, removed Complainant from her light duty position, and sent her home. Complaint 2 A. Complainant alleged that the discriminatory harassment/hostile work environment continued as evidenced by the following events: 12. In November 2017, the Supervisory Inventory Management Specialist, Complainant’s immediate supervisor (S1a) and the Chief Assistant Chief Logistic Service, her second-level supervisor (S2) failed to respond or to take appropriate corrective action after the Complainant reported that her co-worker had taken her operating room supply cart and emptied the contents into a garbage bag and placed the bag in the Agency warehouse. 13. On November 20, 2017, S1a was angry with Complainant for not attending the morning huddle (meeting). 14. On November 24, 2017, S1a accused Complainant of not answering his email. 15. On November 30, 2017, S1a sent Complainant an email. accusing her of violating a procedure involving a surgical case cart in which Complainant had no participation; 16. On December 12, 2017, the Assistant Chief Supply Chain Manager questioned Complainant on why she did not follow S1a’s instruction when he told Complainant to stop processing “Stat Orders” and to start working on “Go Back Supply” (restocking returned supplies from the operating room). 17. S1a accused Complainant of not restocking the Recovery Room for a week. 18. S1a assigned Complainant the duties of checking and restocking the medical supply rooms in the morning and the afternoon, Monday through Friday. B. On May 22, 2018, after notifying S1a that she had been placed in a “Temporary Total Disability” status, S1a fabricated the work restrictions on the Duty Status report which made her in violation of her March 6, 2017 job agreement. Following its investigation of Complaint 1, Complainant requested a final decision from the Agency. The Agency issued a final decision on October 18, 2016, finding no discrimination was established. Complainant appealed. On December 28, 2017, the Commission vacated the Agency’s final decision and remanded Complaint 1 for a supplemental investigation. In that remand, the Commission ordered the Agency to analyze Complainant’s claim as failure to provide reasonable accommodation and examine her claims of reprisal. Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120170553 (December 28, 2017). 2020000713 4 Regarding the reasonable accommodation claim, the Commission’s order required the Agency to undertake a supplemental investigation which included the following matters: nature and extent of modified and light duty position to Complainant following work related injuries in 2012 and 2013, and that whether the restrictions were accommodated; evidence of whether Complainant worked outside restrictions from 2012 through 2015; how the Agency conducts a search for light or modified duty positions when requested; assuming no light or modified duty position available, any attempts by the Agency to propose alternative accommodations; whether Agency engaged in the interactive process and the records of this process; an explanation for why Complainant did not receive documentation to sign regarding work restrictions until she had purportedly violated such restrictions; information regarding comparators for a disparate treatment claim; and documentation regarding the availability of light duty positions after December 11, 2015. In the meantime, the investigation of Complaint 2 (which is comprised of claims 12 -18, and claim B, as identified above) Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On September 13, 2019, the Agency issued the instant final decision. As noted above, the Agency consolidated Complaints 1 and 2, after conducting the supplemental investigation as required by our previous appellate decision, and concluded no discrimination was established as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims A.8, A.11 and B 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. 2020000713 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). Agency management articulated legitimate, non-discriminatory reasons for its actions as more fully discussed below. With respect to claims A.8 and A.11, S2 stated that on or around September 30, 2015, the former supervisor gave Complainant a memorandum threatening to remove Complainant from modified duty and issued Complainant a Temporary Transitional Duty Job Offer that was effective September 2, 2015. She stated that she had a discussion with the former supervisor regarding Complainant’s alleged non-adherence to her physician’s work restrictions. The record contains a copy of S2’s written notice of Non-Adherence to Physician Imposed Work Restrictions, dated September 29, 2015, in which the former supervisor placed Complainant on notice that “we write to remind you of your obligation to comply with your physician’s orders to continue in your modified duty status. On September 25, 2015, you were seen pushing supply carts and working on ladders in the supply warehouse by your supervisor [former supervisor].” He determined that Complainant’s actions were contradictory to the temporary job restrictions placed on her by her physician. As a result, the former supervisor stated that he expected Complainant to comply with her restrictions by her physician and that failure to do so may result in your removal from modified duty and she would be sent home until she was released to work without restriction. The Human Resources (HR) Specialist (over 40) stated that on December 11, 2015, when she reported to work, Complainant was waiting in her office for her. She stated that Complainant informed her that she had been sent him by her former supervisor. The HR Specialist stated that she was also contacted by the former supervisor stating he had been given guidance by management to advise Complainant was being removed from her light duty assignment. Further, the HR Specialist stated that she was advised that Complainant was performing her tasks outside of her restrictions as outlined by her physician. In addition, she noted that Logistics stated they no longer had a light duty work assignment that would meet Complainant’s physical limitations/restrictions. Moreover, the HR Specialist stated that Complainant acknowledged she was performing tasks outside of her restrictions even though she knew she was not supposed to do them. 2020000713 6 Regarding claim B, Complainant alleged that after notifying S1a that she had been placed in a “Temporary Total Disability” status, S1a (Caucasian, American, white, over 40) fabricated the work restrictions on the Duty Status report which made her in violation of her March 6, 2017 job agreement. However, S1a denied changing her assignments. The HR Specialist Workers’ Compensation (HR Specialist WC) (African American, disability, American, black, over 40) asserted that S1a’s annotations were not fraudulent or incorrect. She noted that it was completed based on her guidance and Complainant’s Position Description to include her restrictions. Moreover, the HR Specialist WC stated it has been an ongoing issue with Complainant to do tasks outside her restrictions before S1a became her supervisor. She stated, however, according to S1a, there have been no issues with Complainant and she is now doing the duties within the Light Duty Job Offer. Beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by management were pretextual designed to mask discriminatory or retaliatory animus. Reasonable Accommodation 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 right shoulder torn rotator cuff; left shoulder torn rotator cuff; left knee torn meniscus; and contusions in back and upper left arm. The Commission will assume for purposes of analysis only, and without so deciding, that Complainant is an individual with a disability. Complainant stated that in December 2012, she suffered an on-the-job injury when she was hit by shelving pushed by a co-worker. As a result, she injured her shoulder, left knee, back, and upper left arm. In October 2013, Complainant sustained another on-the-job injury when she injured her right shoulder. She underwent surgeries for a torn rotator cuff to her right shoulder in 2013 and 2014. In addition, Complainant stated that she experiences pain when sitting, standing, bending, squatting, climbing, and twisting. At the time of the instant complaint, Complainant had a lifting restriction of no more than two pounds for her left arm and a lifting restriction of ten pounds for her right arm. Moreover, Complainant was restricted from pushing or pulling, limitation for actions overhead, and had limited range of motion to both arms. Complainant filed claims with the Department of Labor’s Office Workers’ Compensation Program (OWCP) on both injuries, and her OWCP claims were accepted. A review of the record reflects that Complainant had continuously been assigned to light duty since the time of her initial on-the-job accident in 2012. 2020000713 7 Complainant’s duties have been re-evaluated and changed over the years based on the recommendations given by her medical providers. Agency management officials testified that although they provided Complainant with duties within her restrictions throughout the years, Complainant continued to work outside of her restrictions, particularly relating to pushing carts, lifting, and climbing ladders. On October 23, 2013, Complainant notified S2 that she had been required to work outside her restrictions. She stated that when she received no response to this notification from S2, she again complained that S1 was requiring her to exceed her restrictions, this time notifying S2, but also now her third-level supervisor, the HR Specialist, and the union president. Complainant claimed that she again received no response. The record reflects that after withdrawing her request for reasonable accommodation on April 1, 2014, she was notified by email dated April 2, 2014, that her request for reasonable accommodation was being administratively closed per her email and that she was welcome to submit a new request or appropriate medical documentation at any time and the process would be continued. On September 2, 2015, Complainant was issued a reprimand for violating her medical restrictions. Specifically, Complainant had been observed pushing carts and climbing ladders on September 25, 2015, in violation of her restrictions. On September 30, 2015, Complainant was presented with a written Temporary Transitional Duty Job Offer by S1 and the effective date of the job offer was September 2, 2015. The written job offered limited Complainant’s duties to desk assignments: answering phones and posting regular orders. Complainant accepted the offer. In December 2015, Complainant was placed on Leave Without Pay (LWOP) and was sent home. However, she returned to duty when her medical provider determined that she had reached maximum medical improvement. Upon her return, an addendum was added to the position description to include her medical restrictions and place her permanently on limited duty status. In sum, the evidence supports a finding that the Agency provided Complainant with ongoing series of reasonable accommodations over a period of years. A review of the totality of the record reflects that Complainant has not proven a violation of the Rehabilitation Act with respect to the reasonable accommodation claims. The Agency provided Complainant with an effective reasonable accommodation, Complainant was aware of her restrictions, and the record reflects that Complainant was the party to exceed such restrictions despite management warnings. Ongoing Harassment/Hostile Work Environment To establish a claim of hostile environment harassment, 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 2020000713 8 work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 a protected basis - in this case, her race, national origin, disability, age or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding claim 1, the Deputy Chief Logistics Officer (over 40), also Complainant’s second- level supervisor (S2), she asserted that Complainant’s former supervisor gave CW a verbal counseling on June 13, 2014. Regarding claims 2 - 5, S2 stated that she does not recall CW2 asking Complainant if she ever considered retiring. However, S2 stated that she received an email from CW2 denying making a comment about Complainant’s breast size and pointing her finger at Complainant. S2 stated that she was aware that the former supervisor had a meeting with Complainant and CW2 but she was not sure what was discussed during the meeting. In addition, S2 noted that CW2 claimed Complainant misconstrued the age comment. Regarding claims 6, 7 and 9, S2 stated she has no recollection of the alleged incidents. In regard to claim 10, S2 acknowledged that the former supervisor notified her that a named co- worker (CW3) verbally attacked Complainant and made accusations that the former supervisor wanted to fire Complainant. She stated that the former supervisor planned to gather statements from the necessary parties and would keep her informed. Regarding claim 12, the Assistant Chief Supply Chain Management (over 40) stated that on November 3, 2017, he received an email from Complainant regarding an incident that occurred between her and a co-worker. On November 6, 2017, the Assistant Chief emailed S1a to look into the situation as it appeared to be a breakdown in communication. S1a also spoke with Complainant and would look into getting a separate cart for her. Regarding claim 13, the Inventory Management Specialist Supervisor (S1a) stated that he does not recall Complainant’s allegation that he was angry with Complainant for not attending the morning huddle. He asserted that he does not recall being angry with Complainant for anything. With respect to claim 14, S1a explained that he prints the schedule for every month and has different employees on it. 2020000713 9 He admitted he made an error where he had scheduled too many employees for Thanksgiving Day, so he wanted to offer employees time off for Thanksgiving and tried to make the adjustment. He noted at that time Complainant was not in the office and he sent emails letting her know that she did not have to come in for Thanksgiving. However, Complainant reported to work on Thanksgiving Day. S1a stated that he told Complainant that he went out of his way to contact her, in an effort to inform her not to come in for Thanksgiving Day but she turned around and claimed I was angry at her. Regarding claim 15, S1a stated that he told Complainant several times not to clear off the entire shelf and leave a couple items behind in case other employees need them. He stated he does not recall being angry or why Complainant would say that he was angry with her. Furthermore, S1a stated he tends to visit the Post-Anesthesia Care Unit to see how things are going and frequently, the nurses routinely complain about Complainant. Specifically, he noted that the nurses mentioned that Complainant does not take directions and overstocks items. He explained to Complainant on the outside of the bins “it says ten, that means ten [items] goes in there and we can’t put twenty in bins.” He made it clear to Complainant to stop overstocking items. S1a stated, however, Complainant continued to overstock items. As result, S1a issued Complainant a written counseling not to overstock items. Regarding claims 16 - 18, Complainant’s allegation that she informed S1a of an unsafe practice of stocking dextrose and asked if he could bring to the attention to all of those why may have delivered, and then he passed her when checking and restocking two rooms which she claimed were unrealistic given her current duty assignments and physical limitations, he mentioned he does not know what she was referring to. The Assistant Chief Supply Chain Management stated that he questioned Complainant on why she did not follow S1a’s instruction when he told Complainant to stop processing “Stat Orders” and to start working on “Go Back Supply” (restocking returned supplies from the operating room). He stated at that time he received a call from EEO and Workers Compensation stating that Complainant was being instructed to do things outside of her work restrictions. He explained Complainant that she must only do tasks within her restrictions and that if anyone ask her to do anything outside of her restrictions to see him. Furthermore, the Assistant Chief noted that Complainant wanted to go backs or stock certain areas but he informed her that her workload was determined by the supervisor and she needs to listen to his instructions. In sum, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, national origin, disability, age or prior EEO activity. Her claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2020000713 10 CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, 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). 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. 2020000713 11 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. 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 3, 2021 Date Copy with citationCopy as parenthetical citation