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

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021002554 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tressa L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002554 Agency No. 2001-0508-2020103443 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 February 25, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Purchasing Agent, GS-6, at the Agency’s Atlanta VA Medical Center in the Prosthetics Department in Atlanta, Georgia. On July 1, 2020, Complainant filed a formal EEO complaint. The formal complaint included the following matters: 1. Whether the Agency discriminated against Complainant based on disability and in reprisal for prior protected EEO activity2 in connection with the following incidents: 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. 2021002554 2 a. between February 27, 2020 and April 2020, Complainant’s first-level supervisor (S1)3 denied Complainant training and asked Complainant to “sign-off” on topics which Complainant had not been trained; b. on March 9, 2020, Complainant was issued both verbal and oral written counseling about attendance and performance; c. on March 9, 2020 and April 9, 2020, Complainant was denied union representation; d. on April 2, 2020, Complainant was issued an “unsatisfactory” performance appraisal; and e. on April 9, 2020, Complainant’s employment was terminated while serving her probationary employment period. 2. Whether the Agency discriminated against Complainant by failing to provide her with a reasonable accommodation based on disability and in reprisal for prior protected EEO activity when, on April 2, 2020, Complainant’s request for telework was denied. 3. Whether the Agency discriminated against Complainant by subjecting her to a hostile work environment based on disability and in reprisal for prior protected EEO activity as evidenced by the foregoing incidents and the following incidents: • from November 19, 2019 to April 9, 2020, Complainant was subjected to “unprofessional comments” and S1 accused Complainant of refusing training; and • on February 18, 2020, S1 shared Complainant’s reasonable accommodation information with one of Complainant’s co-workers (CW1). 2 Complainant testified that S1 had previously asked her to complete a report of contact (ROC) on her second-level supervisor (S2). However, Complainant stated that she refused. Complainant also testified that S2 previously asked Complainant to file a ROC on S1 which Complainant also refused. Complainant indicated that S2 was “upset” that she contacted an EEO Officer and the Director about the alleged harassment occurring in the Prosthetics Department. 3 The record supports that S1 declined to complete and submit a sworn affidavit regarding the claims at issue. 2021002554 3 After its investigation, 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 requested a final decision. On February 25, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation (Claim 2) 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 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. The evidence shows, as explained below, that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant testified that she was diagnosed with anxiety, ADHS, hypothyroid, postpartum depression, coccydnia, spondyloarthopaty, and an autoimmune deficiency. Complainant explained that because of these medical conditions, she had work restrictions which included an inability to work in a fast pace high-demand environment for a long time period. Complainant also indicated that she has problems with understanding, remembering oral instructions, differentiating between similar sounds, spatiality, and aligning numbers into proper columns. The Human Resources Specialist (HR Specialist) testified that Complainant emailed her on December 29, 2019, and inquired about non-competitive job placements. The HR Specialist further testified that she provided Complainant with a reasonable accommodation form which Complainant completed on March 4, 2020. The record indicates that on March 4, 2020, Complainant submitted a reasonable accommodation requesting ten-minute breaks every two hours, a work arrival time between 8:00 am - 9:00 am, headphones, relocating her desk to a non-central location, ability to retreat to a quiet place as needed, a work-buddy, deadline extensions, and training opportunities. Complainant also submitted the required documentation substantiating her need for these accommodations due to her medical conditions. 2021002554 4 The HR Specialist explained that she met with Complainant and S1 on March 10, 2020, and S1 informed Complainant that S1 could not do anything for her with these restrictions in her current Purchasing Agent position. However, the HR Specialist indicated that Complainant thereafter submitted new medical documentation to support her reasonable accommodation request. The HR Specialist found that the requested additional ten minutes breaks every two hours would have caused a problem given that Complainant was already provided fifteen minutes breaks and a thirty-minute lunch break. Additionally, the deadline extensions would have been problematic because Complainant was responsible for purchasing durable medical equipment for veterans and there was a need for Complainant to timely and efficiently respond to these requests. The HR Specialist also noted that a work-buddy would have required another employee to work alongside Complainant. Therefore, on April 2, 2020, S1 offered Complainant an alternative accommodation: a prosthetics clerk position with a tour of duty from 8:00 am to 4:30 pm. However, Complainant declined this offer. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (“Guidance”), Question 9. However, alternative proposed accommodations must be “effective.” See U.S. Airways v. Barnett, 535 U.S. 391, 400(2002). “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. Here, the HR Specialist testified that the clerk position would have been within Complainant’s work restrictions. However, Complainant declined this reassignment. However, Complainant has not demonstrated how this alternative accommodation would have been ineffective in accommodating her medical restrictions. Additionally, we note that although Complainant testified that she had requested to telework as an accommodation, this request is not included on the accommodation request form.4 Based on this evidence, we find that Complainant has not shown that the Agency violated the Rehabilitation Act when it offered Complainant reassignment to the Clerk position as an alternative accommodation. Disparate Treatment (Claims 1a -1e) 4 The record indicates that S2 was aware of Complainant’s request to telework. S2 explained that Complainant had not completed all the required training before she was eligible to telework. S2 further explained that the Agency ultimately approved all telework requests on April 9, 2020, in response to the COVID-19 pandemic, and Complainant was allowed to work from home. 2021002554 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record reflects that the Agency articulated legitimate non-discriminatory reasons for its actions. Training (Claim 1a) Complainant testified that S1 asked her to sign a form indicating that she had completed certain topics. However, Complainant refused to sign the document because she had not received the training. Complainant noted that she discussed this issue with S2 who instructed her to submit a ROC so that he could bring the written complaint to Human Resources. Although S2 acknowledged that Complainant informed him that S2 had failed to train her, S2 explained that he conducted a fact-finding inquiry into the matter which revealed that S1 had asked Complainant to train on several occasions, but Complainant always had an excuse not to train. Additionally, S2 stated that he personally trained Complainant on processing requests for quotes, but Complainant shared with her co-workers that she had not received this training. The record includes a March 10, 2020 memorandum from S1 to Complainant which, in pertinent part, acknowledges that Complainant had received training from S1 and S2 during the relevant period at issue. 2021002554 6 Counseling (Claim 1b) Complainant explained that S1 issued the verbal counseling indicating, for the first time, issues with her work performance. Complainant indicated that S1 informed her that it was Complainant’s responsibility to ensure that her leave requests were approved before scheduling time off, to avoid being marked as absent without leave. Complainant also stated that S1 informed her that she had performance problems and too much leave without pay. Complainant asserted that she felt S1’s comments were retaliatory for Complainant’s prior complaints about not being training properly. A copy of a March 3, 2020 memorandum issued by S1 to Complainant reflects that Complainant received written counseling for absences without leave (AWOL). Specifically, the letter noted that Complainant was marked AWOL on November 18, 2019 for 3.30 hours and from September 19, 2019 through January 20, 2020, Complainant had used 487.15 hours of leave without pay (LWOP). The letter also noted that Complainant was informed on February 11, 2020 that she would no longer be allowed to use LWOP and would be charged AWOL. A copy of a March 9, 2020 memorandum issued by S1 to Complainant indicates that Complainant was charged AWOL because she failed to have enough of the leave requested to cover her absence from duty on November 19, 2019, March 2, 2020, and March 4, 2020. A copy of a March 10, 2020 memorandum issued by S1 to Complainant indicates that Complainant had deficiencies in several of her performance assignments, despite being trained by supervisors and S2. The letter further indicates that Complainant did not notify management concerning a need for training until after her performance was evaluated. Additionally, the letter indicates that Complainant has refused training. Union Representation (Claim 1c) Complainant clarified that management did not deny her union representation, rather, Complainant indicated that the union failed to respond to her request for representation. Termination (Claim 1e) Complainant asserted that she believed that her termination, issued by S1, was retaliatory for Complainant raising concerns that she was not trained properly. S2 explained that Complainant’s employment was terminated due to Complainant’s failure to follow instructions and for being absent without leave (AWOL). A copy of the April 9, 2020 termination letter reflects the same reasons for termination as S2 stated. The letter further indicates that Complainant was terminated during her probationary period. A copy of Complainant’s July 2019 progress review indicates that Complainant was rated “needs improvement to be fully successful or better.” Additionally, a copy of Complainant’s April 2020 2021002554 7 performance appraisal indicates that Complainant was rated “unacceptable” on all critical elements, and therefore, had an overall rating of “unacceptable.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability or retaliation for prior protected EEO activity. Harassment (Claim 3) To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disability or reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record supports a determination that Complainant was not subjected to discriminatory harassment as alleged. Regarding the unprofessional comments, Complainant stated that S1 told her that her baby was “going to come out yellow just like her” because Complainant was “mean.” On another occasion, S1 told Complainant that she would “quit” and let Complainant and the other co- workers “have it [out]” and “beat their asses” if she did not have three years left on her mortgage. And on another occasion, S1 told Complainant that “[S1’s] granddaughter had more class than her employees.” S2 testified that Complainant brought the claims at issue to his attention and he conducted a fact- finding investigation. During the fact finding, S2 explained that he interviewed S1. However, S1 did not substantiate Complainant’s allegations. Ultimately, S2 stated that the results of the fact- finding determined that Complainant’s allegations of harassment were unfounded. Additionally, S2 denied, during the fact-finding, sharing any information about Complainant’s accommodation request and noted that she lacked commuter access to this information. 2021002554 8 Regarding Complainant’s training allegation, a copy of a November 20, 2019 memorandum issued by S1 to all staff indicates that S1 offered to provide one-on-one refresher training on any Prostheses Purchasing Agent Duties Monday through Friday from 8:00 am to 4:30 pm. However, Complainant refused to sign acknowledgement of receipt of this memorandum. Considering these claims, even if true, Complainant has not produced evidence that considerations of her disability or retaliatory animus motivated management’s actions toward Complainant. Here, the record supports that S2 initiated a fact-finding into Complainant’s allegations and the results of the investigation were unfounded. Additionally, the record supports that S1 offered training to all staff, including Complainant. Finally, while S1’s alleged comments could be deemed as unprofessional and inappropriate, there is no indication that the comments were made based on Complainant’s disability or reprisal for prior protected EEO activity, and consequently, fail to establish that Complainant was subjected to a discriminatory hostile work environment in violation of the Rehabilitation Act. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021002554 9 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. 2021002554 10 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 April 27, 2022 Date