[Redacted], Lynette B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 16, 2021Appeal No. 2020004358 (E.E.O.C. Dec. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynette B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004358 Hearing No. 480-2018-00259X Agency No. 200P-0593-2017103059 DECISION On July 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 7, 2020 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. Complainant worked as a Licensed Practical Nurse, GS-0620-06, at the Agency’s Southwest Primary Care Center in Las Vegas, Nevada. On June 23, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (carpal tunnel syndrome, tendonitis, post-traumatic stress disorder) and in reprisal for prior protected EEO activity when: 1. From February 28 through May 25, 2017, Complainant’s supervisor did not allow Complainant to document a witness statement for her workers’ compensation injury claim; Complainant received intimidating phone calls from S1; S1 dissuaded Complainant from taking her sick leave; S1 interrogated Complainant regarding her medical treatment and requested documentation of her doctor’s visit; S1 interfered with 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. 2020004358 2 Complainant’s discharge process from federal service; S1 interfered with Complainant’s workers’ compensation claim that caused a delay in her from receiving payment for 30-plus days; S1 delayed Complainant’s receipt of her lump sum payment for her unused annual leave; and S1 interfered with the Complainant’s timely discharge; 2. On April 18 and 24, 2017, S1 denied Complainant’s sick leave requests; 3. On April 20, 2017, S1 failed to provide Complainant with a reasonable accommodation; 4. On April 28, 2017, Complainant resigned from her position; and 5. On May 31, 2017, Complainant was charged $400 for allegedly not turning in her access card. The Agency investigated the complaint and thereafter provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested a hearing, the AJ assigned to her case dismissed her hearing request in an order dated October 21, 2018: As a Licensed Practical Nurse, Complainant was a Title 38 “hybrid” employee. Thus, as a non-probationary, non-temporary employee, Complainant had the right to appeal the constructive discharge raised in her EEO complaint to the Merit Systems Protection Board (MSPB). The parties concurred that Complainant was an employee with appeal rights before the MSPB. Because the harassment and failure to accommodate asserted in Complainant’s complaint is the asserted foundation for Complainant involuntarily resigning from her position, her entire complaint constitutes a mixed-case complaint. Consequently, the AJ dismissed Complainant’s hearing request and ordered the Agency to issue a final decision with appeal rights to the MSPB. The Agency issued an interim decision on February 14, 2019, in which it found that the evidentiary record needed to be supplemented. On July 7, 2020, after it had reviewed the supplemental investigative report (SIR), the Agency issued its final decision finding that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment. In addition, the Agency determined that incidents (1), (2), (3), and (5) comprised a non-mixed case complaint and gave Complainant appeal rights to the Commission as to those claims. With respect to incident (4), the Agency determined that this incident constituted a mixed-case complaint and consequently provided Complainant with MSPB appeal rights on that issue alone. We will therefore not address incident (4) as it is not before us. We will likewise not address the AJ’s decision to dismiss Complainant’s hearing request since Complainant did not raise this issue on appeal. 2020004358 3 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”). To establish a hostile work environment claim, 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 work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that S1 subjected her 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 S1’s actions were taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that any of S1’s actions were based on discriminatory animus related to her disabilities or earlier EEO activity. With regard to incident (1), S1 denied that she had harassed or intimidated Complainant or otherwise interfered with any aspects of Complainant’s employment or workers’ compensation claim. IR 93. S1 further explained that she did not dissuade Complainant from taking leave; rather, some of her leave requests were converted to continuation of pay given that the dates were covered by her work-related injury claim. With respect to incident (2), S1 averred that Complainant failed to follow established procedures when requesting sick leave, noting that Complainant’s physician had cleared her to return to duty without restriction on April 18, 2017. IR 94-95, 104-05; SIR 66-69. Regarding incident (5), S1 and S2 both stated that the requirement of returning access cards was an issue between Complainant and the Human Resources office, and was therefore not a nursing issue. They also stated that they were unaware of the incident. IR 97, 106-07. 2020004358 4 Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by S1 or S2, which give us reason to question the truthfulness of S1 and S2 as witnesses, or which otherwise establish the existence of a discriminatory or retaliatory motivation on the part of S1. Complainant has not even submitted a statement or brief in support of her appeal. We therefore agree with the Agency that Complainant has not proven that she had been subjected to discrimination, reprisal, or a hostile work environment by S1 or any other official. Denial of Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1614.203(c). To establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). Assuming, without deciding, that Complainant is a qualified individual with a disability, the Commission finds that there is no evidence that Complainant ever requested an accommodation. Complainant claimed that she informed S1 on April 20, 2017, that the pain in her hands and wrists was being aggravated. Complainant did not identify any accommodation that she would have required. Furthermore, Complainant acknowledged that she did not specifically state that she needed an accommodation but claimed that S1 denied her accommodation because of staff shortages. S1 stressed that Complainant never requested a reasonable accommodation. The Assistant Nurse Executive who was Complainant’s second-line supervisor (S2) stated that Complainant never informed her that she was denied a reasonable accommodation. IR 96, 105. There is no corroborating evidence in the record to substantiate Complainant’s assertion that she had requested or was denied a reasonable accommodation. As such, we find that Complainant did not establish that she was denied accommodation in violation of the Rehabilitation Act. 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 of record does not establish that discrimination occurred. 2020004358 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). 2020004358 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 December 16, 2021 Date Copy with citationCopy as parenthetical citation