[Redacted], Michelle G.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020002771 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002771 Hearing No. 430-2019-00193X Agency No. 2004-0730-2017105180 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated January 22, 2020, finding no discrimination concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Revenue Utilization Review (RUR) Registered Nurse, VN-0610-11, Centralized RUR, Mid-Atlantic Consolidated Patient Account Center in Durham, North Carolina. On October 10, 2017, Complainant filed an EEO complaint, which was later amended, alleging discrimination and a hostile work environment based on race (African-American), age (over 40), and disability when: 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. 2020002771 2 1. From April 2017, to present, she has been subjected to ongoing harassment, which affected the terms, conditions, and privileges of her employment. 2. From April 2017, to present, she has not received proper training or mentorship. 3. From April 2017, to present, she has not received an appropriate headset or an ergonomic desk in response to her request for a reasonable accommodation. 4. On August 30, 2017, she was denied leave that she had requested for October and December 2017. 5. In September 2017, she was counseled twice. 6. From January 8, thru April 24, 2018, she was subjected to a hostile work environment. 7. On January 8, 2018, she was charged with 10 hours of sick leave for one tour of duty. 8. On January 29, and February 6, 2018, she had sick leave approved four minutes after the requested time of when her leave was scheduled to begin. 9. On February 19, 2018, she was placed on sick leave through March 8, 2018. 10. On March 7, 2018, she was placed on a Personal Improvement Plan (PIP). 11. On approximately April 11, 2018, she was not authorized to take up to 40 hours of overtime per pay period. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant filed the instant appeal. 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 (EEO MD-110), Chap. 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"). 2020002771 3 Management indicated that Complainant never informed management she was subjected to harassment during the time period at issue. Management further indicated that Complainant was provided with training, including Blackboard training and RUR basic nurse training, from June 12, 2017, through February 7, 2018. She was also provided with four different mentors from April 2017 to November 2017. Complainant was provided a headset in April 2017 that she requested, and she was working with an IT (Information Technology) Technician to make it compatible with her computer. Complainant’s headset request was not a part of her reasonable accommodation issue. Regarding her request for reasonable accommodation, Complainant claimed that she had: a service connected disability; severe insomnia; decreased concentration and difficulty focusing while driving; difficulty to concentrate with excessive noise, unpleasant smells, extreme heat, and lack of natural light; medical history of migraine headaches, prescribed medication makes it difficult to drive; medical history of temporomandibular joint disorder; and lumbar pain and bilateral should impingement. On September 8, 2017, Complainant requested the following accommodations: telework; modified work scheduling which will allow a day off per pay period; computer; sit stand desk; chair with lumbar support to accommodate sit stand desk; wireless headsets compatible with computer; and time to call her medical provider during the day if needed. Complainant’s supervisor immediately offered her the following alternative accommodations: a sit stand workstation; a lumbar chair; and approval to take 15 minutes per day to speak with her medical provider, as needed, regarding her medical condition. Complainant did not accept the offer. In October 2017, Complainant’s Director further discussed Complainant’s accommodation request and offered an alternative accommodation. Complainant however did not respond to the Director’s offer and did not further engage in the interactive process with the Agency concerning the request. The Agency closed Complainant’s request on November 14, 2017. Regarding Complainant’s request for leave at various times during the months of October through December 2017, Complainant’s supervisor stated that Complainant’s annual leave request for October 2nd was granted, along with November 14th and 28th. Complainant’s annual leave requests for October 6th and November 24th annual leave were denied due to the medical center coverage needs. But after those leave requests were denied, Complainant requested sick leave for those days, and they were granted. Also, Complainant’s annual leave requests for December 26th and 29th were denied in order for the Agency to cover its business needs, but she called in sick on those days. Management indicated that Complainant was counseled only once, not twice, in September 2017, i.e., on September 1, 2017, because she made errors with her inpatient admission getting precertification. Management acknowledged that a timekeeper made an error entering 10 hours of sick leave for January 8, 2018, in a timecard which was subsequently corrected, and Complainant was not charged for sick leave. 2020002771 4 Management indicated that Complainant did not request sick leave for January 29 or February 6, 2018, as alleged; and she requested and was approved for sick leave on February 19, 2018, through March 8, 2018. Management also indicated that Complainant was placed on a PIP due to her performance deficiencies. Management indicated that from August 2017 to February 2018, Complainant only accomplished minimal work. Management stated that as of February 2018, Complainant completed none of the medical center’s appeals or letters of medical necessity to get reimbursement for medical claims which placed the Agency at a huge financial risk. Regarding the overtime issue, management indicated that emails were sent out to all nurses, including Complainant, for voluntary overtime opportunities during the relevant time period in April 2018. Complainant did not volunteer to work overtime. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. 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 that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, the Agency’s final decision 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. 2020002771 5 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. 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. 2020002771 6 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 June 9, 2021 Date