[Redacted], Melina K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020003991 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melina K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003991 Agency No. 200J-0578-2017103897 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 24, 2020, final decision concerning her 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Surgical Technician at the Agency’s Edward Hines Jr., VA Hospital in Hines, Illinois. She filed a complaint alleging that she was subjected to discrimination and harassment based on sex (female), age (over 40), disability (chronic migraines, vision disturbance, asthma, depression, and anxiety), and reprisal (previous EEO activity) when: 1. Beginning June 2015, and continuing through July 2017, coworkers made comments mocking her disabilities; staff read her medical records; coworkers stated they did not want to work with her, yelled at her, and told her to shut up; coworkers said she’s not a “team 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. 2020003991 2 player” because she got sick; her workload was scrutinized at a higher level than her coworkers; she was falsely accused of misconduct; and coworkers subjected her to aggressive physical contact with threats made towards her. 2. Beginning June 2015, and continuing through present, management failed to comply with her requests for reasonable accommodation or to engage in the interactive process. 3. Beginning June 2015, and continuing through July 2017, management failed to give her credit for work performed in her performance appraisal. 4. Beginning June 2015, and continuing through May 11, 2017, she was charged absence without official leave (AWOL). 5. Beginning May 12, 2017, and continuing through present, she was charged AWOL. 6. On October 4, 2017, she was issued a proposed removal letter. 7. On October 24, 2017, she was removed from employment. 8. On October 24, 2017, she was threatened and forced to remain in the office although she requested medical treatment and was told, if she stepped on Agency property, she would be arrested. Prior to its investigation, the Agency notified Complainant and her attorney that claim 4 would be dismissed as an independent discrete act of discrimination because Complainant sought EEO counseling in an untimely manner. The Agency would, however, consider claim 4 as part of Complainant’s overall harassment claim. During its investigation, the record indicates that several attempts were made to have Complainant submit an affidavit setting forth her specific allegations. These attempts were not successful, however. After the investigation concluded, Complainant provided an affidavit along with other handwritten notes. Complainant did not respond to the Agency’s notification of her right to elect a hearing or a final decision; consequently, the Agency issued a final decision finding no discrimination regarding claims 1, 2, 3, 5, and 8. The Agency also found no discrimination regarding claims 6 and 7; however, because those matters were found to constitute a mixed case, Complainant was given appeal rights to the Merits Systems Protection Board (MSPB) on those matters.2 This appeal followed. Complainant did not submit a brief on appeal but only submitted a copy of the MSPB appeal form that she was provided by the Agency concerning her removal claim. 2 The Commission notes that a proposal to remove merges with the subsequent removal action. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133060 (Sep. 28, 2015). 2020003991 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”). At the outset, we note that to the extent Complainant intended to appeal claims 6 and 7, i.e., her proposed removal and subsequent actual removal, she did not have the right to appeal these mixed case claims to the Commission, pursuant to 29 C.F.R. § 1614.302(d)(3); accordingly, these matters are DISMISSED. Moreover, because Complainant is not specifically contesting the dismissal of claim 4, we will not be addressing that matter in this decision. Claim 2: Reasonable Accommodation Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she 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 her with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Reasonable accommodation includes “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(ii). “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. pt. 6130 app. § 1630.2(o). 2020003991 4 Assuming Complainant is a qualified individual with a disability, we find no persuasive evidence that she was denied a reasonable accommodation as will be explained below. There is no indication of a 2015 request for reasonable accommodation. B1 was the reasonable accommodation coordinator on June 1, 2016. According to B1, Complainant made a verbal and written request for accommodation, in June 2016, seeking light duty but only for one week so that she could see her medical provider in order to get updated documentation for her Office of Workers’ Compensation Programs case. Complainant requested that she not have to lift more than 15 pounds, that she be given work that would allow sitting and standing in intervals of 15 - 20 minutes; and a 7:30 a.m. start time to allow her medication to work. B1 stated that on or about June 1, 2016, an interim accommodation was granted for Complainant to use leave for the period requested because the hospital did not have a light duty policy for employees. B1 also stated that, on June 10, 2016, Complainant was given updated medical documentation by her medical provider that indicated she could perform the full range of her duties; therefore, on or about June 13, 2016, her request for reasonable accommodation was administratively closed. We do not find that Complainant was denied a reasonable accommodation with respect to her June 2016, request. Complainant sought light duty for only a week in preparation for an upcoming appointment with her medical provider. If the purpose of her request was simply to limit her workload before her appointment then granting her leave, on an interim basis, would have been an effective accommodation. There is no indication that Complainant needed an accommodation in order to perform the essential functions of her position. B2 was the reasonable accommodation coordinator from July 2016 to November 2016. She stated that Complainant submitted a request for reasonable accommodation in July 2016, and the medical documentation was sent to her. Complainant requested 30-minute breaks every 2 hours; to alternate between standing and sitting; lifting no more than five pounds when combined with lifting above her head; limited kneeling, climbing, and squatting; limited repetitive movements; and shift hours of 6:00 a.m. - 3:30 p.m. According to B2, the request was denied because it removed the essential functions of her job and the medical documentation did not support some of the requests, e.g., the change in her tour of duty hours. B2 stated that: [S]he was a surgical healthcare tech and was required to push and pull large case carts containing supplies and instrumentation for the surgical procedures and she was limited to pushing/pulling 5 pounds. There could be long periods of standing during surgery such as 4 to 6 to 8 hours. The essential function was for the health tech to stand for 8 hours, she could only stand for 2 hours. The repetitive movements were an essential function of the surgical techs position because the techs must anticipate the needs of the surgeons/residents and respond with speed and accuracy and at times that could be repetitive. 2020003991 5 The Agency did perform a job search for a vacant position to reassign Complainant as an accommodation of last resort. Complainant, according to B2, was kept informed of the status of her request. B2 also indicated that they did grant her request concerning no lifting of more than five pounds overhead. We do not find that Complainant was denied a reasonable accommodation with respect to her July 2016 request. The Commission has recognized that an agency is not required to remove any of the essential functions of a position as a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation; see Timika O. v. Dep’t of the Navy, EEOC Appeal No. 0220140008 (Mar. 9, 2017). Complainant has not identified a reasonable accommodation that would enable her to perform the essential functions of the position as outlined by B2. The Agency also tried to reassign Complainant to a vacant position. In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position; or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” According to B2, not only did she look for positions, but she also “[l]et [Complainant] know the status as well as how to get on USAJobs herself and look and if she saw something that I might not [have] seen to let me know.” Complainant does not argue that there was a vacant, funded position to which she could have been reassigned. We find that the preponderance of the evidence in the record establishes that Agency fulfilled its obligation under the Rehabilitation Act. B3 stated that she was the reasonable accommodation coordinator after B2 until July 5, 2017. She stated that the only reasonable accommodation request she recalled was the one submitted to B2, and that she performed a job search for Complainant to find her a position but that search was unsuccessful and Complainant, subsequently, provided updated medical documentation stating that she could perform all the essential functions of her job again and she resumed work. Finally, B4 stated that she was the current reasonable accommodation coordinator and had been in the position since September 2017. On August 31, 2017, Complainant submitted a request for reasonable accommodation in writing but did not indicate what she was seeking. According to B4, she contacted Complainant on September 8, 13, and 21, 2017, and October 3, 2017, trying to get clarification on her request, which listed her conditions as chronic migraines and vision disturbance. Complainant, she stated, finally dropped off the requested information to Human Resources on October 20, 2017. We do not find that Complainant was denied a reasonable accommodation with respect to her August 2017, request. The record indicates that B4 tried to engage in the interactive process, but Complainant was unresponsive. Although she finally submitted requested information to Human Resources on October 20, 2017, the record indicates that four days later, October 24, she was removed. 2020003991 6 The Commission has long held that an individual is not entitled to a reasonable accommodation when the disability or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012). Disparate Treatment: Claim 5 Assuming Complainant established a prima facie case of discrimination on all alleged bases, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. According to the Agency’s records, including Complainant’s time and leave records from February 1, 2017, through July 31, 2017, she was never charged with being AWOL. We find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Harassment Claims 1, 3, and 8 We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with respect to claims 2 and 5. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). With respect to Complainant’s claim of a hostile work environment, we find that Complainant failed to show by a preponderance of the evidence that the incidents happened as she alleged or that any incident that may have occurred was motivated by discrimination. Moreover, we find that the interactions between Complainant and her managers were, for the most part, work- related interactions and we find no evidence that they were based on her protected bases. 2020003991 7 CONCLUSION Upon careful review of the evidence of record, including arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final 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. 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. 2020003991 8 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation