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

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020003460 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melissa H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003460 Hearing No. 570-2015-00222X Agency No. 20DR-0010-2013104022 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 April 2, 2020, final order 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. 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 order. BACKGROUND Complainant worked as the Executive Director for Ethics in Health Care (Physician) for the Veteran’s Health Administration’s (VHA) national system from 1999 to January 2014. Her central office was located within VHA’s Washington D.C. headquarters which was re-located several times throughout the Washington D.C. area during her tenure at the Agency. During the relevant time, the Deputy Under Secretary for Health and Policy Service was Complainant’s first level supervisor (S1). The Principle Deputy Under Secretary for Health was Complainant’s second level supervisor (S2). 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. 2020003460 2 On November 18, 2013, Complainant filed an EEO complaint, which was subsequently amended. The parties stipulated that the following claims were to be decided: Claim 1: Whether Complainant was subjected to discrimination based on disability (seasonal affective disorder) and in reprisal for protected EEO activity (current EEO complaint and request for reasonable accommodation)2 when: 1. From January 2013 through approximately August 19, 2013, management failed to provide Complainant with a reasonable accommodation of additional lighting in her office; 2. From January 2013 to present, management failed to provide Complainant with an office with natural light as a reasonable accommodation; 3. From March 2013 through September 4, 2013, management denied Complainant’s repeated requests to telework more frequently without advance notice and prior approval as a reasonable accommodation; 4. On June 28, 2014, Complainant was forced to resign from her position due to management’s failure to provide her with an adequate reasonable accommodation (constructive discharge); 5. From approximately April 2014 to June 28, 2014, management denied Complainant’s request for a pay increase retroactive to January 12, 2014, including an increase in base pay based on longevity; and 6. From approximately July 2014 to present, the Agency failed to respond to Complainant’s request to correct an error in her pay and failed to retroactively correct the error by recalculating the compensation she should have been paid from January 12, 2014 to June 28, 2014, and retroactively pay her the salary difference she was owed. Claim 2: Whether Complainant was subjected to a hostile work environment/harassment based on disability and in reprisal (instant complaint and request for reasonable accommodations) when: 1. From January 2013 through approximately August 19, 2013, management failed to provide Complainant with a reasonable accommodation of additional lighting in her office; 2. From January 2013 to present, management failed to provide Complainant with an office with natural light as a reasonable accommodation; 3. From March 2013 through September 4, 2013, management denied Complainant’s repeated requests to telework more frequently without advance notice and prior approval as a reasonable accommodation; 4. On June 28, 2014, Complainant was forced to resign from her position due to management’s failure to provide her with an adequate reasonable accommodation (constructive discharge); 2 Complainant initially raised sex as a basis in her complaint; but subsequently withdrew that basis. Thus, we will not address sex as a basis in this decision. 2020003460 3 5. On April 23, 2013, the Operations Officer, stated to Complainant in a public forum that the lights for Complainant’s office will be “so bright they will give you sunburn;” 6. In April 2013, management failed to address jokes and derogatory comments Complainant’s coworkers made during a staff meeting about employees who telework; 7. On July 8, 2013, Complainant’s supervisor made sarcastic remarks to Complainant regarding her request to telework; 8. On August 12, 2013, Complainant’s supervisor called Complainant “unprofessional” and “not respectful” and said she “expected it not to happen again;” and 9. From approximately April 2014 to June 28, 2014, management denied Complainant’s request for a pay increase retroactive to January 12, 2014, including an increase in base pay based on longevity. 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). Complainant requested a hearing and the AJ held a hearing on April 9, 10, and 11, 2019. The AJ issued a decision in favor of the Agency on February 28, 2020. The AJ noted the parties stipulated Complainant was a qualified individual with a disability who was eligible for a reasonable accommodation. Regarding her denial of accommodation claims, the AJ determined the Agency presented legitimate, nondiscriminatory reasons for the delay in granting Complainant’s reasonable accommodation requests. Further, the AJ found that the Agency established that it engaged in the interactive process with Complainant during the delay in granting her reasonable accommodation requests. The AJ also determined that the Agency established by a preponderance of evidence that it fully granted Complainant’s documented reasonable accommodation requests from March 2013, and presented Complainant with an option to re-locate to an office with a window as a reasonable accommodation to both her March 2013 and December 2013 requests, which Complainant refused to accept. The AJ concluded that Complainant failed to establish by a preponderance of evidence discriminatory animus behind the delay in granting her reasonable accommodation requests. With respect to her harassment claim, the AJ determined Complainant failed to show that she was subjected to unwelcome conduct that constituted harassment based on her sex or disability that rose to the level of a hostile work environment. Regarding the specific comment on April 23, 2013, Complainant contends that the Operations Officer made fun of her disability when he stated to her in a public forum that the lights for her office with be “so bright they will give you sunburn.” However, the AJ noted that during cross examination, Complainant admitted that the Operations Officer did not mention any confidential material during the conversation that occurred near the elevators. Complainant also admitted that she believed that the Operations Officer was not making fun of her disability during the April 2013 conversation. Further, the AJ noted the Operations Officer credibly testified that he did not know her specific diagnosis until the commencement of litigation. 2020003460 4 The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). At the outset, we note in her decision, the AJ did not identify the correct claims and bases in her decision. Specifically, the AJ erroneously issued a decision on the merits on the basis of sex. However, sex was withdrawn by Complainant prior to the hearing, and thus, we will not address the basis of sex in our decision. Further, the AJ’s decision did not list reprisal as a basis which we note was raised, investigated, and stipulated to as a basis by the parties. As the basis of reprisal was fully investigated, we will address the basis of reprisal in this decision. Upon review, we find Complainant failed to show by a preponderance of evidence that any of the Agency’s actions were taken in reprisal for her protected EEO activity. Additionally, we address Complainant’s contention on appeal that the AJ did not address her pay claims. During the investigation, Complainant claimed that she was denied an increase in pay when in 2013, her title was changed from Chief Ethics in Health Care to Executive Director for Ethics in Health Care. In his affidavit, S2 noted there was a salary freeze in place at the time and that her salary stayed the same as her responsibilities remained the same after the title change.3 Further, S2 stated that had Complainant been treated as a new employee instead of a reappointment, it was likely her salary would have decreased. However, he explained that Agency leadership had committed not to reduce any salary when senior leaders had a change in position so her salary was maintained. Regarding Complainant’s email and follow-up memo on April 23, 2014, requesting a salary increase retroactive to January 12, 2014, S2 stated that when the freeze was lifted in January 2014, the VACO (VA Central Office) SES Equivalents would have received a 1% pay raise and had any step increases that were missed during the pay freeze restored. 3 We note that S2 died prior to the hearing. 2020003460 5 S2 stated there were no circumstances that warranted Complainant being treated any differently than others in a similar circumstance. At the hearing, Complainant argued she should have gotten a step increase based on her longevity at the Agency to step 8. She acknowledged that she did receive a step increase from step 6 to step 7 in early 2014. However, she stated it should have been increased to step 8. Complainant claimed that since she did not get a response to her inquiry, she had no other explanation than that it was related to her disability and her EEO complaint. At the hearing, Complainant stated that the Agency’s action in giving her a one-step increase was likely an error. She admitted that she had no knowledge of the other named comparatives and their situations and whether they were entitled to a one-step or two-step increase. Upon review, we find that Complainant failed to establish by a preponderance of evidence that the Agency’s actions surrounding her pay increase were based on her disability or taken in reprisal for her protected EEO activity. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2020003460 6 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. 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. 2020003460 7 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