[Redacted], Marine V., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020004657 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marine V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004657 Hearing No. 550-2018-00078X Agency No. 200P-0663-2017100499 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 19, 2019, final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Licensed Practical Nurse (LPN) in Mount Vernon, Washington. On March 1, 2017, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected her to discrimination and a hostile work environment (fragrance sensitivity, scoliosis, bulging disks, and arthritis) when: 1. Despite numerous requests between December 8, 2010, and May 19, 2016, as of March 1, 2017, she has not been provided with her numerous requests for reasonable accommodation related to fragrance sensitivity and a standing work station. 2. Between June 20, 2012, and August 18, 2015, she was issued various lowered performance appraisals. 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. 2020004657 2 3. On June 8, 2012, the Nurse Manager and another manager began to wear heavier perfume and cologne to work. 4. Beginning on June 8, 2012, the Nurse Manager began to more closely monitor her arrival, departure, lunch and break times. 5. Between June 13-20, 2012, the Nurse Manger harassed her in scheduling a meeting with union representation regarding allegations that she engaged in inappropriate communication with her coworkers, and in the meeting, the Nurse Manager berated her and threatened her employment. 6. On June 20, 2012, the Nurse Manager placed her on sick leave certification, and when it was about to expire on December 14, 2012, the Nurse Manager accused her of additional leave concerns, and placed her back on sick leave certification again. 7. On June 20, 2012, the Nurse Manager instructed her not to send email to all staff without prior approval, and to discuss issues in person and not via email. The instruction to discuss concerns with other employees regarding their personal fragrance in person in lieu of email would subject her to additional exposure and the Nurse Manager knew it would make her as sick as possible. 8. On January 15, 2013, the Nurse Manger asked for documentation for her Monday, January 14, 2013, absence and advised her that she could not use annual leave in lieu of sick leave and would be charged Leave Without Pay (LWOP) for an absence the previous Friday. 9. On January 17, 2013, the Nurse Manager instructed her to change the January 14, 2013, request from LWOP to Absence without Leave (AWOL). 10. On January 29, 2013, the Nurse Manager misrepresented that she had requested sick leave for January 14 and 28, 2013, when she had spoken to the Nurse Manager about attending court and restraining order issues on these dates. 11. On February 21, 2013, the Nurse Manager advised her of a list of duties that needed to be done the day before she would be at a hearing at which the judge requested that she attend. 12. On April 28, 2013, the Nurse Manager instructed that she put in a leave request for being 15 minutes late to work. 13. On June 14, 2013, the Nurse Manager did not give her notice of the expiration of sick leave certification and continued to expect and ask for doctor’s notes for another six months. 2020004657 3 14. Between June 18-20, 2013, the Nurse Manager gave her additional duty assignments, and falsely stated that she had the least number of patients on her team. 15. In April 2016, the Nurse Manager laughed and made negative and untrue remarks in response to her request for leave under the Family and Medical Leave Act (FMLA). 16. On April 28, 2016, the Nurse Manager sent her an email and advised she would charge her with LWOP and AWOL. 17. On May 9, 2016, the Nurse Manager accidentally copied her on an email in which the Nurse Manager suggested she had been abusing leave, even though she had documented her absences while on leave certification. 18. On May 11, 2016, the Labor Relations Specialist only sent her one of the required FMLA forms when she had asked him for help with requesting FMLA. 19. On May 17, 2016, the Labor Relations Specialist advised her she could not use annual leave in lieu of sick leave for her FMLA, and she would have to use LWOP, subject to management’s discretion. 20. On May 17, 2016, the Nurse Manager sent her harassing emails regarding a meeting concerning her FMLA, AWOL, and allegations of a disrespectful email, along with the difficulties of obtaining union representation for this meeting. 21. On May 18, 2016, the Nurse Manager made comments that threatened her job and expressed her desire to get rid of her. 22. On May 19, 2016, the Nurse Manager emailed her that she needed to have a note for an FMLA absence. 23. On May 23, 2016, the Nurse Manager incorrectly claimed that she had been placed on leave certification prior to her request for FMLA. 24. On June 16, 2016, the Nurse Manager stated it was not right for her to ask her and other LPN’s to help with her workload due to her wanting to spend some time with her union representative on this same date. 25. On June 20, 2016, the Nurse Manager noted that her FMLA request for June 3, 2016, had been annotated in the leave system with the comment, “member is on sick leave notice (certification) and will require a medical note.” 26. On July 21, 2016, the Nurse Manager recorded her absences as sick leave, even though she had informed her she was on jury duty and provided court documentation. 2020004657 4 27. On September 16, 2016, she was issued a lowered performance appraisal, when her actual work performance had not changed, other than she had missed work due to her absences. 28. On November 18, 2016, she was not given notice that she was no longer on leave certification. But the Nurse Manager continued to ask for doctor’s notes for her absences. 29. The Nurse Manager reassigned her to other more inefficient and difficult teams on two occasions after management was informed of developments in her informal EEO complaint. 30. On October 6, 2017, a coworker wore a very strong scent and made comments regarding her needing to get another job. 31. On October 25, 2017, she received a performance rating of excellent which reflected a lower rating than she actually deserved. 32. In August 2017, coworkers failed to properly cover for her duties when she would take official time to work on her EEO complaint. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ specifically determined that the Agency made a good faith effort to accommodate Complainant’s requests by sending emails and posting notices, reminding employees to refrain from wearing perfume or cologne. The AJ observed that, on a few occasions over a seven-year period, a coworker would forget and wear a strong fragrance that would aggravate Complainant’s health conditions. The AJ noted, however, that Complainant admitted that management never denied her 2016 request for an accommodation related to her fragrance sensitivity. The AJ observed, moreover, that Complainant was provided with her requested standing work station along with other employees in 2017. The AJ additionally found that Complainant was placed on sick-leave certification because she used a lot of sick-leave, annual- leave, FMLA, LWOP, and a few AWOL days as well. The AJ noted that Complainant’s leave usage reflected a high incidence of taking leave on Mondays and days adjacent to holidays. In addressing Complainant’s performance reviews of excellent and fully successful, the AJ noted that there were complaints by new nurses and older colleagues that Complainant was very negative in the LPN morning huddles. The AJ ultimately found that Complainant’s allegations were not severe or pervasive enough to rise to the level of a hostile work environment. The AJ found, moreover, that Complainant did not show that she was subjected to disparate treatment based on her disability. 2020004657 5 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.2 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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 We find in claim 29, Complainant raised the basis of reprisal for prior protected EEO activity. The AJ did not specifically address claim 29 with regard to the basis of reprisal. Notwithstanding, we find this error by the AJ to be harmless, as there is no evidence in this case that management was motivated by retaliatory animus. 2020004657 6 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). 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. 2020004657 7 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 January 13, 2021 Date