[Redacted], Lazaro G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020001921 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lazaro G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020001921 Hearing No. 460-2019-00082X Agency No. 2003-0502-2018101664 DECISION On January 10, 2020, 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 December 5, 2019 final decision concerning his 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final decision. At the time of events giving rise to this complaint, Complainant was a Nurse Manager, Registered Nurse (RN) III, at the Agency’s Alexandria VA Health Care System, located in Pineville, Louisiana. Complainant experienced an on-the-job injury in April 2008. As a result, Complainant experiences complications from several conditions including radiculopathy, spondylosis with myelopathy, sciatica, other synovitis, and tenosynovitis, contusion, sprain. Complainant is limited in walking, standing, pushing, pulling, lifting, and climbing stairs. 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. 2020001921 2 Complainant’s restrictions as of June 2018 were no walking, no standing, bending/stooping no more than two hours a day, no pushing, pulling, lifting more than five pounds for four hours a day, and no climbing stairs. Since that time, Complainant has been assigned to numerous transitional light duty assignments (TLDA) pursuant to Office of Workers’ Compensation Programs (OWCP) procedures. Complainant subsequently experienced a second on-the-job injury in October 2017. Complainant’s restrictions were then no walking more than two hours, no standing more than 20 minutes, no reaching more than an hour or above the shoulder, no lifting/pushing/pulling more than five pounds more than four hours per day, and no squatting/kneeling/climbing. On January 19, 2018, Complainant accepted a permanent position as a Home Telehealth Care Coordinator as his condition was determined to be permanent. Complainant retained his grade and salary but performed sedentary duties pursuant to his medical restrictions. Between April 2016 and June 1, 2018, Complainant claimed that he was detailed and reassigned to numerous positions which resulted in changes in job title, duties, and pay. Complainant’s supervisor stated that Complainant was temporarily detailed in April 2016 to the Community Living Center, Ward 4SB due to allegations of misconduct. Initially, Complainant’s subordinate notified management of an intimate relationship she had with Complainant but stopped cooperating prior to an initiation of an inquiry. As a result, no further action was taken. Shortly after Complainant was placed in 4SB, Complainant claimed that his supervisor (S1) threatened to call the VA Police if he did not go to the Community Living Center, take leave, or go to the supervisor's office. S1 stated that Complainant told management that he felt unsafe around female co-workers while assigned to 4SB. As a result, Complainant was placed in the nursing supervisor’s office until another work location could be located. S1 denied threatening to call VA Police. In June 2016, Complainant was reassigned to serve as the Acting Chief of Sterilization Processing Services. S1 confirmed that Complainant was reassigned to the position because there was a need in that unit due to a vacancy. Complainant claimed that he only received six hours of training in this area. S1 stated that Complainant was only providing administrative support and received sufficient training. In October 2016, Complainant requested a permanent reassignment into the Chief of Sterilization Processing Services position, but the request was denied because the full duties of the position would have violated his medical restrictions. In October 2017, Complainant claimed that he was not selected for the Chief of Sterilization Processing Services position advertised under Vacancy Announcement No. FG-17-1872900-TB- BU. Complainant admitted that he did not apply, but rather requested reassignment into the position. S1 ultimately selected a co-worker (CW1) because she was highly qualified for the position, had 10 years prior experience in the position in Augusta, Georgia, and was already being paid at the Nurse Manager level. In April 2019, the position was announced again under Vacancy Announcement No. FG-17-1972900-TB-BU, and Complainant claimed the physical requirements of the position were changed to prevent him from applying for the position and were changed again in September 2019 to prevent him from a lateral reassignment. Management officials denied any knowledge of this claim. 2020001921 3 Additionally, in October 2017, Complainant was temporarily reassigned to assist in the post- operative ambulatory surgical area. Complainant claimed he was only provided four days of orientation and S1 ordered him to violate his restrictions. S1 affirmed that Complainant was detailed there to provide administrative assistance, but Complainant and the OWCP Coordinator later told him that Complainant did not feel comfortable working in the area. S1 stated that he removed Complainant from the work assignment the following day. On February 4, 2018, Complainant claimed he was demoted and reassigned to perform duties as a staff nurse. S1 stated, as noted above, that Complainant was reassigned as a Home Telehealth Care Coordinator as a result of OWCP stating that Complainant’s injuries were permanent, and his restrictions would not allow him to perform the duties of Nurse Manager. S1 added that Complainant retained his pay and grade. Complainant alleged that he did not receive sufficient training for the position, but Complainant’s supervisor (S1-2) stated that Complainant received orientation and online training through the Agency’s online training system. The Telehealth Coordinator corroborated that Complainant received training and noted that Complainant was resistant and uncooperative during the process. The Telehealth Coordinator stated that she went over a list of deficiencies provided by S1-2 to assist Complainant. Prior to April 2018, Complainant claimed that he was denied formal orientation into the Community Care Center and, as a result, his supervisor canceled 12 hours of pre-approved overtime. The Community Care Program Supervisor stated that Complainant was allowed to work overtime to address a backlog, but she later received reports of numerous errors in Complainant’s work. She stated that Complainant later claimed that he was not properly oriented into the unit. As a result, she canceled any remaining overtime to ensure that he could be fully oriented. In June 2018, Complainant was reassigned to a TLDA in the Mental Health unit which he claimed violated his restrictions including that he not be around potentially violent patients. S1- 2 affirmed that Complainant was reassigned after he received documentation indicating that Complainant had new restrictions which prevented him from performing duties in the Telehealth unit. S1-2 denied that Complainant was around potentially violent patients and stated that the assignment was temporary and sedentary. Complainant alleged that he was not provided progress reviews, a performance plan, or an evaluation while on light duty in the Home Telehealth Care and Mental Health units. S1-2 denied Complainant’s claims and stated that Complainant was provided performance plans for both light duty assignments and both he and S1 completed their respective portions of Complainant’s progress review and performance rating. Complainant requested higher-level review of his Fiscal Year 2018 performance rating, and the Human Resources/Employee Labor Relations office informed Complainant that his concerns would be addressed. Complainant claimed that he did not receive the appropriate cost of living increase for Fiscal Year 2019, and instead received the increase for a staff nurse. S1-2 noted that Complainant did not raise this concern with him. 2020001921 4 A review of Complainant’s OWCP paperwork indicates that while Complainant was on pay retention, his pay would be adjusted based on one half of any annual cost of living increases granted at the top step of his grade. In May 2018, Complainant claimed that S1-2 told him that no one wanted to work with him because they feared he would file an EEO complaint against them. S1-2 denied the incident as alleged. S1-2 stated that he informed Complainant that co-workers had reported to him about their concerns about his open discussions about his OWCP status and EEO activity and that he attempted to provide positive encouragement to Complainant to ensure a cohesive work environment. S1-2 denied telling Complainant to stop filing complaints. In June 2018, Complainant alleged that he was denied reasonable accommodation to attend the weekly inpatient briefing through the Agency’s Veterans Affairs National Telecommunications System (VANTS). In addition, Complainant claimed that he was denied accommodation to complete Preventative Management of Disruptive Behavior Training. Further Complainant alleged that management would not engage in the interactive process with him to allow him to remain in a TLDA instead of being reassigned to the Telehealth unit and that his request to telework was denied. S1-2 stated that Complainant never formally or informally requested an accommodation and instead requested to skip the huddles/meetings and call in on the VANTS line. S1-2 stated he denied the request because each Home Telehealth Care Coordinator was required to attend the huddles/meetings at least one day a week. S1-2 added that Complainant was offered a wheelchair to get to the above-mentioned training course, but Complainant declined the offer. S1-2 added that Complainant was reassigned to the Mental Health unit because his medical documentation indicated that he could no longer work in the Telehealth unit. Both S1-2 and the Deputy Associate Chief of Staff for the Mental Health denied that Complainant ever requested telework to them. On March 21, 2018 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on race (White), sex (male), disabilities (multiple physical and mental impairments) and reprisal (prior protected EEO activity) when: (1) on April 27, 2016, he was temporarily detailed for two hours to work on Ward 4SB; (2) on June 10, 2016, he was temporarily detailed from his position as Nurse Manager to Acting Chief of Sterilization Processing Services; (3) on June 10, 2016, he was provided with only six hours of training while detailed as Acting Chief of Sterilization Processing Services, while the new Chief of Sterilization Processing Services was provided with three weeks of training; (4) prior to October 18, 2016, his request to be reassigned from his position as Nurse Manager to the position of Chief of Sterilization Processing Services was conditioned on him accepting a decrease in pay; (5) prior to October 10, 2017, he was not selected for the position of Chief Sterilization Processing Services, Vacancy Announcement No. FG-17-1972900-TBBU; (6) on October 10, 2017, he was detailed from his position as Nurse Manager to perform duties as a staff nurse in the post-operative area, and was told that he would only be provided with four days of orientation, and thereafter, provide care to post-operative patients; (7) on October 10, 2017, management violated his medical restrictions by assigning him to duties that required continuous walking in the post-operative ambulatory surgical area; (8) on 2020001921 5 October 10, 2017, his transitional light duty position was modified resulting in a demotion; (9) on or about October 27, 2017, he was denied the right to stay in his transitional light duty assignment until his medical condition improved; (10) on February 4, 2018, he was reassigned from his position as Nurse Manager to perform duties as a staff nurse; (11) from February 4 through June 12, 2018, the Facility Telehealth Coordinator failed to arrange for his orientation to his new assigned position as Telehealth Nurse; (12) on May 15, 2018, a Registered Nurse told him that his supervisor assigned her to review a telehealth checklist, and gave her a list of his deficiencies which showed that he did not answer his consults; (13) on May 16, 2018, the Facility Telehealth Coordinator told him that no one wanted to work with him because they feared he would file an EEO complaint against them; (14) on June 1, 2018, he was reassigned from his light duty position as Nurse Manager to a position as Home Telehealth Care Coordinator; (15) on June 15, 2018, he was denied a reasonable accommodation to conduct inpatient briefing via the Veterans Affairs National Communications System line; (16) on June 15, 2018, the Facility Telehealth Coordinator reassigned him to a Transitional Light Duty Assignment (TLDA) in Mental Health where he was required to work with violent and potentially violent patients; (17) from October 1, 2017 through September 30, 2018, he was not provided with a progress review, a new performance plan, or performance evaluation while performing a light duty assignment; (18) in February 2018, he was not provided with a performance plan when he was assigned to the Telehealth Unit, and in June 2018, when he was assigned to a transitional light duty assignment in Mental Health; (19) on November 2, 2018, he was denied a reasonable accommodation to complete Preventive Management of Disruptive Behavior training; (20) on November 8, 2018, the Office of Workers’ Compensation Coordinator failed to respond to his request for an accommodation to complete Preventive Management of Disruptive Behavior training; (21) on November 9, 2018, he received a "special rating" of no rating for his fiscal year (FY) 2018 performance rating; (22) on or about November 18, 2018, he did not receive a response to his request for a higher-level review of his FY 2018 performance rating; (23) since November 18, 2018, and ongoing, his supervisor has failed to provide him with paperwork to request telework as a reasonable accommodation; (24) on December 26, 2018, he received an annual performance appraisal after he served in the position of Staff Nurse for only 10 months; (25) since January 19, 2018, management has denied him the opportunity to engage in the interactive process concerning his request to maintain his position as Nurse Manager; (26) on February 5, 2018, he was not allowed to remain on transitional light duty until he reached his maximum medical improvement, or allowed to remain on transitional light duty for a year after he was reinjured, which resulted in a demotion and loss of a within-grade increases in October 2018; (27) since October 18, 2018, Human Resources failed to act after he reported that he has not received a within grade increase or cost of living increase for FY 2019; (28) in April 2019, the physical requirements for the position of Chief Sterilization Processing Services, Vacancy Announcement No. FG-17-1972900-TB-BU were changed to prevent him from applying for the position; (29) prior to April 2018, he was denied orientation which resulted in his supervisor cancelling 12 hours of pre-approved overtime; and (30) as a result of actions taken prior to October 2018, he was denied a step increase, and only received 50 percent of his cost of living increase. 2020001921 6 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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 him to discrimination as alleged.2 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Here, as more fully discussed above, we find that the Agency has articulated legitimate, non- discriminatory explanations for each of its actions and Complainant has not rebutted those reasons as pretextual or otherwise motivated by discriminatory or retaliatory animus. We note that Complainant chose to withdraw his request for a hearing; therefore, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing and can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Denial of Reasonable Accommodation An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC 2 The Agency provided Complainant appeal rights to the Merit Systems Protection Board for claim (10) as the matter was a mixed-case complaint. As a result, that claim is not properly before us and we will not address it herein. 2020001921 7 Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. Here, the record reveals that management provided Complainant with several temporary assignments following his on-the-job injuries and in accordance with his restrictions. Complainant presented no persuasive evidence that any of the temporary assignments violated his restrictions or that management officials otherwise ordered him to perform duties that violated his medical restrictions. While Complainant disagreed with several of the assignments or preferred alternative assignments, Complainant is reminded that he is not entitled to the reasonable accommodation of his choice, but to an effective accommodation. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Regarding Complainant’s additional allegations of reasonable accommodation denials, in June 2018, Complainant claimed that he requested to attend the weekly huddles/meetings via VANTS. S1-2 denied that Complainant requested this formally or informally as an accommodation. There is no corroborating evidence indicating that Complainant communicated a need for an accommodation. Nonetheless, the record indicates that Complainant was only required to attend the meeting one day a week and he could use the VANTS line to attend the huddle if a huddle/meeting occurred outside of his mandatory day. In addition, Complainant alleged that he was denied reasonable accommodation to complete Preventative Management of Disruptive Behavior training in November 2018. Complainant stated he requested to perform the training by phone because walking to the training area would violate his restrictions. The OWCP Coordinator affirmed that she discussed Complainant’s request with his supervisor and the training facilitator, and they offered Complainant the alternative accommodation of use of a wheelchair to attend the training. Complainant declined the offer. Further, Complainant claimed that he requested telework, but his request was denied. S1 stated that Complainant requested telework prior to November 2018, but he was still in orientation and would not have been able to telework until after that process. However, Complainant did not stay in the Home Telehealth Program. Complainant’s supervisor in Mental Health denied that Complainant ever requested telework from him. Complainant has presented no evidence that the granted accommodations and offered alternative accommodations were ineffective. Accordingly, under the circumstances present, the Commission finds that Complainant has not established the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. 2020001921 8 Per Se Reprisal As a general matter, the Commission has held that the actions of a supervisor may constitute per se reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id. Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id. (citing Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018)). Although the Commission has held that certain acts may constitute per se reprisal, the matter raised in this case does not rise to this level even if true, despite Complainant's contention to the contrary. S1-2 denied telling Complainant that no one wanted to work with him because they feared he would file an EEO complaint; rather, he stated he simply discussed with Complainant concerns staff raised with him regarding the disruption Complainant’s open discussions about his OWCP and EEO cases were causing. There is no evidence demonstrating that S1-2 attempted to interfere or dissuade Complainant from participating in the EEO process. As such, we find that Complainant has not established that the Agency's conduct was per se reprisal. Hostile Work Environment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that he was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination/retaliation or harassment as alleged by Complainant. 2020001921 9 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). 2020001921 10 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 September 2, 2021 Date