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

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020002858 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reina D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002858 Agency No. 200J-0636-2019101043 DECISION On February 20, 2020, 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 January 28, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency correctly concluded that Complainant was not subjected to a hostile work environment based on her age and/or disability as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (Bed Coordinator) at the Agency’s Medical Center in Omaha, Nebraska. 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. 2020002858 2 On February 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (osteoarthritis in the right knee) and age (56) when: 1. on December 4, 2018, the Nurse Coordinator Manager, Complainant’s then first-line supervisor (S1), threatened to reassign Complainant to Data Collection Service when all other Bed Coordinators would be relocated to the Emergency Room (ER); 2. on December 14, 2018, S1 failed to allow Complainant's approved reasonable accommodation of a sit/stand desk to be moved to the ER where all Bed Coordinators were relocated except Complainant; 3. on February 12, 2019, S1 told Complainant that Complainant’s Bed Sheet Report was incomplete, and S1 humiliated Complainant when he stated, "Thank goodness [coworker] was here to fix your mistakes;" 4. on March 2, 2019, April 12, 2019, and continuing, managers and coworkers made “degrading” statements to Complainant; and 5. on March 19, 2019, Complainant received a rating of Satisfactory on her Proficiency Report, which was lower than the rating she previously received. The Agency accepted the complaint for investigation. The record reflects that Complainant has osteoarthritis in her right knee. Her impairment restricts her ability to sit for long periods of time due to a decreased range of motion. On April 10, 2018, Complainant requested a sit/stand desk with automatic adjustments as a reasonable accommodation. She received the requested accommodation on April 18, 2018. The parties do not dispute that Complainant can perform the essential duties of her position. Claim 1 Complainant alleged that on several occasions, S1 made derogatory statements regarding her age and/or disability, in the presence of other staff. The statements included S1: threatening to have Complainant reassigned to Data Collection; stating that coworkers fixed Complainant’s mistakes; and stating that Complainant is slow. Complainant also alleged that a coworker (C1) raised her voice at Complainant when C1 was asking Complainant "who put those papers here." Complainant did not identify any witnesses to S1’s remarks. S1 denied Complainant’s allegations, asserting that he did not make derogatory remarks about her. He indicated that he never threatened or even alluded to reassigning Complainant’s work duties. C1 stated that she did not recall the exact conversation, but Complainant had told her of S1’s threat to reassign Complainant to Data Collection. C1 stated that she did not recall raising her voice at Complainant. C1 explained that at the time, since she was working on the first floor 2020002858 3 and Complainant was on the fifth floor, they mostly interacted over the phone. Both S1 and C1 denied harassing Complainant. Claim 2 Starting on December 5, 2018, all the Bed Coordinators, including Complainant, were moved to the ER under a pilot program. Complainant indicated that, based on the move to the ER, she asked management to move her electric sit/stand desk to the new location. She claimed that management denied her request and thereby removed Complainant’s approved reasonable accommodation. According to Complainant, her requests to discuss her reasonable accommodation needs were ignored and she was forced to accept a manual sit/stand desk that caused her continued physical pain and discomfort, as well as mental anguish. The record indicated that the Agency determined that the electric sit/stand desk was too big to be placed in the ER. According to the Agency, Complainant’s preferred electric sit/stand desk would require substantial alterations to the configuration of the ER. Complainant suggested that the Agency cut a countertop in the ER in order to fit the type of electric sit/stand desk she previously utilized. However, the Agency engineer concluded that the suggestion was neither physically possible nor fiscally responsible since the move to ER was only for a temporary pilot program and the Bed Coordinators were not to stay in the ER. Therefore, the Agency considered an alternative sit/stand desk, namely a manual sit/stand desk. S1 asserted that a manual sit/stand desk would address Complainant’s needs and that Complainant could operate it with minimal effort. S1 had a manual sit/stand desk installed in the ER for Complainant. Complainant refused to use the manual sit/stand desk. The Local Reasonable Accommodation Coordinator (LRAC) believed the manual desk addressed Complainant’s physical restrictions. Complainant stated to S1 that the manual sit/stand desk bothered her shoulder but informed S1 that she would not be seeking medical attention. S1 noted that Complainant stated that she had tried similar manual desks in the past and that those would cause “shoulder pain” and “damage.” Complainant indicated that, at some point, she ended up seeking medical care for her left and right shoulder and she required surgery on her left rotator cuff. Complainant maintained that she could only use her electric sit/stand desk. Therefore, based on Complainant’s insistence, S1 informed Complainant that she would continue to work at her electric sit/stand desk where it had been located until the pilot program concluded. Therefore, Complainant could perform her job responsibilities and that she could work short periods in the ER as she felt appropriate. According to S1, Complainant verbalized satisfaction with this temporary solution. LRAC confirmed that Complainant was offered this alternative accommodation, i.e. to remain in her current office with her electric sit/stand desk, until the pilot program was completed. In the LRAC’s view, the accommodation was effective because Complainant could still perform her duties from her office. In rebuttal, Complainant asserted that the sit/stand desk placed in the ER was not electric and that it put “pressure” on her shoulders when lowering it. 2020002858 4 Claim 3 Complainant alleged that S1 told Complainant that Complainant’s Bed Sheet Report was incomplete, and S1 humiliated Complainant when he stated, "Thank goodness [C1] was here to fix your mistakes." According to S1, he had been “fielding” many complaints about inaccuracies on the surgical/daily bed sheet completed by Complainant. He asserted that any comments that he made to Complainant referred to her job performance and was not a personal attack. Frankly, S1 asserted that Complainant “gets very defensive whenever you try to discuss job performance, even in the most positive, nonpunitive way possible.” That attitude, S1 indicated, “caused Complainant to mis-interpret motives and distorted Complainant’s perceptions.” Claim 4 Complainant alleged that S1 made degrading statements about her, which included: when S1 and C1 told Complainant that she could not work in the “OVA ER” because her desk would not fit; when S1 stated that "ER is use to [C1]”; and that Complainant always has an explanation concerning the completion of her work. S1 and Complainant’s coworkers denied awareness of any degrading statements made to Complainant. They asserted that they had no reason to believe that Complainant was harassed or subjected to a hostile work environment. With respect to Complainant being told she could not work in the ER, a coworker (C2) stated that Complainant would “come down in the ER” to relieve C2 for lunch when C1 was not present. Claim 5 In March 2019, S1 rated Complainant as “satisfactory.” Complainant refused to sign the rating document, asserting that she was previously rated “highly satisfactory.” She alleged that S1 had not previously conveyed any concerns with her work performance before rating her as “Satisfactory.” When she discussed the rating with S1 and the Acting Director, Complainant states that she was told the rating was justified and would not be changed. Complainant, however, believed that S1 let his bias against her age and disability affect his assessment of her performance. S1 explained that the rating reflected Complainant’s Functional Statement and her input, as well as the input of her internal customers. According to S1, he explained to Complainant that each rating period is independent of the others, so an employee's rating may vary from one rating period to another depending on the employee's performance. He noted that Complainant did not meet the requirement for a high satisfactory rating, because she performed her duties satisfactorily, but did not exceed her performance expectations by a "substantial margin." 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 2020002858 5 Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency Decision is in error and should be reversed. She reiterates her allegations and contends that management’s actions demonstrate discriminatory intent and animus. Complainant alleges S1's “manipulation” of the Proficiency Rating system created an intimidating work environment. Further, Complainant asserts S1's lowered 2019 Proficiency Rating, following Complainant's request for an accommodation, demonstrates S1's discriminatory animus toward Complainant. Complainant requests that the Commission grant her any further relief it finds equitable, just, and proper.2 In its Appeal Brief, the Agency states that Complainant does not specify the “assignments of errors” allegedly made by the Agency. According to the Agency, although Complainant’s appeal statement contains a recitation of alleged events; it does not identify the facts, law, or analysis from the FAD that Complainant believes are incorrect. The Agency requests that its FAD be affirmed. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Failure to Accommodate - Claim 2 2 On appeal, Complainant asserts that her medical confidentiality was violated when S1 would show up at her reasonable accommodation in front of other staff, patients, and visitors. However, we note that this matter was not included in the instant complaint and is not properly before us on appeal. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). 2020002858 6 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 undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, she 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 (Guidance), EEOC No. 915.002 (Oct. 17, 2002). For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Complainant alleged that she was denied a reasonable accommodation when her work unit was moved as part of a pilot program to the ER, but the Agency failed to move her electric sit/stand desk to the ER. As noted above, while the Agency was unable to move her electric sit/stand desk to the ER, Complainant was provided with a manual sit/stand desk. Complainant indicated that she had experience with manual sit/stand desks and that such desks caused pain to her shoulders. Based on Complainant’s insistence, the Agency provided Complainant an alternative accommodation which allowed her to continue to perform her work duties at her current office location with the electric sit/stand desk. The Agency allowed her to work for short periods in the ER as she felt appropriate. S1 also noted that Complainant’s work only required picking up the telephone, which Complaint did not dispute. The record does not indicate, nor did Complainant assert, that these offered accommodations were ineffective. The Commission's position is that if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." 29 C.F.R. § 1630.9; see also Guidance at Question 9; Polen v. Dep't of Def., EEOC Appeal No. 01970984 (Jan. 16, 2001). Therefore, S1 did not remove Complainant’s electric sit/stand desk as alleged and her failure to accommodate claim fails. Disparate Treatment - Claim 5 To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2020002858 7 Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on disability and age; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Complainant has not shown any nexus between her “satisfactory” performance rating and her protected bases. For example, the absence of an evaluation in 2018 does not support Complainant’s erroneous presumption that she would have earned a “highly satisfactory” rating, as she did in 2017, nor that the rating at issue now Claim 5 was discriminatory. Further, there is no evidence to support Complainant’s assertion that S1 manipulated the proficiency rating system or that her performance was underrated. She also failed to show a link between her 2018 performance rating and her 2019 request for an accommodation. Therefore, Complainant’s disparate treatment claim fails. Harassment - Claims 1, 3, and 4 To establish a claim of harassment a 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 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Based on our previous determination that Claims 2 and 5 were not discriminatory, they are excluded from our analysis of Complainant’s broader claim of harassment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Our analysis is limited to consideration of Claims 1, 3, and 4. S1 and Complainant’s coworkers deny that the alleged remarks were made. Further, even assuming remarks were made that Complainant felt were “derogatory,” while considered “derogatory” she provided no evidence to corroborate her assertions; and the record does not show that the remarks at issue were derogatory in nature. The alleged remarks were really about work assignments. Complainant has not provided supportive evidence that the comments were based on her age or disability. Instead, Complainant has described routine work exchanges that do not constitute discriminatory harassment. See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018) ("employees may experience unprofessional, inappropriate, and disrespectful treatment;" "civil rights statutes are not meant to be civility 2020002858 8 codes;” and common workplace occurrences require evidence of abuse or offensiveness). Based on the instant record we do not find that the alleged events were sufficiently severe or pervasive to create a hostile work environment. Moreover, Complainant has not shown by preponderant evidence that the remarks were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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, 2020002858 9 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. 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 21, 2021 Date