[Redacted], Lashaunda G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 14, 2021Appeal No. 2020000760 (E.E.O.C. Apr. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashaunda G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000760 Agency No. 2004-0372-2017101863 DECISION 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 September 11, 2019, 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. BACKGROUND During the period at issue, Complainant worked as a Ratings Veteran Service Representative at the Agency’s facility in Washington, D.C. On March 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Post Traumatic Stress Disorder (PTSD)2 and in reprisal for prior protected EEO activity. By letters dated May 19, 2017 and July 25, 2017, the Agency determined that Complainant’s complaint was comprised of the following claims: 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 For purposes of analysis only, we assume, without finding, that Complainant is an individual with a disability. 2020000760 2 1. On or about January 11, 2017, Complainant was not selected for the position of Management Program Analyst, GS-13, advertised under vacancy announcement No. 397-17-112GD-RUI1866699. 2. On or about January 11, 2017, Complainant was not selected for a work detail. 3. On May 25, 2017, Complainant was denied a reasonable accommodation. 4. ON June 23, 2017, Complainant was not selected to participate in the Virtual Aspiring Leaders Program. 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). On September 11, 2019, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that management articulated legitimate, nondiscriminatory reasons for its actions regarding claims (1), (2), and (4). Regarding claim (1), the non-selection, the Agency found that the best qualified candidates were selected based on their interview responses. Regarding claim (2), not being selected for a detail, the final decision set forth that management denied that the selectees for the position at issue in claim (1) were detailed to these positions prior to their selection. Regarding being assigned to a detail in general, the final decision set forth that management asserted that generally Appeals Management Center (AMC) employees are not detailed to external departments except to participate in leadership programs; however, management noted that the Agency did solicit employees to assist in details for the planned realignment of the AMC and that there was no record of Complainant volunteering for this detail assignment. Finally, regarding claim (4), Complainant not being recommended for the Aspiring Leaders Program, the Agency, in its final decision, set forth that management did not select Complainant for participation in this program because she was not satisfactorily performing her duties at the time in question. The Agency further found that Complainant failed to establish that the Agency’s articulated reasons were pretext for discrimination and/or retaliation. Regarding claim (3), denial of a reasonable accommodation, the Agency found that Complainant asserted that she was able to perform the essential functions of her position but not under her supervisory chain at the time. Thus, the Agency found it was not obligated to reassign her to a different supervisor. The Agency further found that even assuming arguendo that Complainant was not medically able to perform her essential job duties that it did subsequently reassign Complainant to a different position. The instant appeal followed. Complainant does not submit a statement or brief on appeal. 2020000760 3 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”). Disparate Treatment - Claims (1), (2) and (4) A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. Where 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency properly found that management articulated legitimate, nondiscriminatory reasons for its actions for claims (1), (2), and (4). The record contains an affidavit from the selecting official (SO) for the position in question for claim (1). Original Report of Investigation (Orig. ROI at 118). Therein, he asserts that interviews were used for the selection process and determinations were made based on the quality of the answers to the performance-based questions. Id. at 121-122. 2020000760 4 The record reflects that management selected the five candidates that scored the highest on their interviews. Id. at 310. Complainant scored lower than the selectees. Id. Regarding claim (2), Complainant alleged that she was denied a detail and that the selectees related to claim (1) were placed in a detail for the position at issue prior to their selection. The record is devoid of evidence that the selectees from claim (1) were placed in details prior to their selections. Management asserted that these individuals were not detailed into to the positions at issue but hired through the competitive process. Orig. ROI at 131, 137. While management asserted that there were some details related to the reorganization of the Appeal Management Office, Complainant had not applied for these specified details. Supplemental Report of Investigation (Supp. ROI at 57-58). Regarding claim (4), not being selected for the Virtual Aspiring Leaders Program, the record contains an affidavit from the Manager, Appeals Resource Center (M1). Therein, M1 asserted that he did not find Complainant a suitable candidate for the leadership program because she was not performing successfully at the time of her application. Supp. ROI at 54. The record reflects that Complainant did not meet her production goals in May 2017. Orig. ROI at 306. Upon review of the record, we do not find that Complainant established, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretext for discrimination and/or retaliation. Denial of Reasonable Accommodation - Claim (3) Regarding claim (3), Complainant’s denial of a reasonable accommodation claim, we concur with the Agency that Complainant failed to establish that she was denied a reasonable accommodation. We acknowledge that the record reflects that initially there was confusion as to whether Complainant was simply seeking a reassignment or a reassignment as a reasonable accommodation. The record further reflects that Complainant, in her affidavit, asserted she was able to perform the essential functions of her position under a different supervisory chain. Supp. ROI at 19, 21. Assuming arguendo that Complainant is disabled, the Commission's guidance specifically states that, in most circumstances, an employer does not need to change a person's supervisor as a form of reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, (October 17, 2002), Question 33. Nevertheless, the Agency did subsequently offer Complainant a reassignment on October 31, 2017, which she accepted. Supp. ROI at 21, 175. Based on the foregoing, we do no find that Complainant established, by a preponderance of evidence, that she was denied a reasonable accommodation. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020000760 5 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. 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). 2020000760 6 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 April 14, 2021 Date Copy with citationCopy as parenthetical citation