Sheryl S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 23, 20180120172729 (E.E.O.C. Nov. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheryl S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172729 Agency No. 200J-0657-2016104511 DECISION On October 8, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 11, 2017 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., 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. BACKGROUND On December 13, 2015, Complainant was hired as a Nursing Assistant at the Agency’s John Cochran VA Medical Center in Louis, Missouri, subjected to a 1-year probationary period. On October 8, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of color (fair complexion), disability (association – disabled child), and age (over 40) when: 1. on May 26, 2016, she was issued a written counseling; 2. on July 10, 2016, she was denied a reasonable accommodation; 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. 0120172729 2 3. on July 10, 2016, her schedule was changed without prior notice; and 4. on July 25, 2016, she was forced to resign during her probationary period. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On July 11, 2017, the Agency issued the instant final decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment (claims 1 and 3) 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). Here, we find that in statements and documentary evidence provided during the investigation into the complaint, responsible Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed below. 0120172729 3 In Claim 1, Complainant alleged that on May 26, 2016, she was issued a written counseling. The Nurse Manager (brown skinned, no disability, year of birth 1967) was Complainant’s supervisor during the relevant period. The supervisor stated that she issued Complainant a written counseling for failure to provide adequate patient care and taking prohibited accessories in the Patient Care Area. Specifically, the supervisor stated that because on more than one occasion, she observed Complainant using her personal cell phone in a patient’s room and patient care areas. The supervisor stated that she reminded Complainant on several occasions not to use her personal cell phone in the patient care areas. The record contains a copy of the written counseling dated May 26, 2016. Therein, the supervisor placed Complainant on notice that she had observed her using her personal cell phone while in the patient care areas “in which you were scheduled to be providing patient care. You have been previously instructed in the past on duties and responsibilities of a CAN, a Patient Care Companion and the use of cell phone and electronic device use while on the unit patient care. It is an expectation of the VA Medical and 6 North Management team that you will comply with the below functional statement and SOP [Standard Operating Procedure] whenever you are on duty on the unit.” Further, the supervisor notified Complainant that if she does not demonstrate improvement in her patient care and compliance with SOPs, she would recommend her removal from Agency employment. The supervisor also noted Complainant’s lack of patient care “raise grave concerns as to your suitability and competency for continued government employment.” Regarding Claim 3, Complainant alleged that on July 10, 2016, her schedule was changed without prior notice. The supervisor during Complainant’s initial interview for employment, she was informed that she might be required to work a night shift. The supervisor stated that Complainant was informed that management does not hire employees “for a particular shift but to meet the needs of the unit and she was also informed at that time our needs were night shift.” The supervisor further stated that on July 7, 2016, Complainant was given advance notice of the schedule change due to staff shortages on the night shift. The supervisor explained that Complainant was chosen for the night shift because she had the least amount of seniority and the changes was made due to operation needs. With respect to Complainant’s allegation that the supervisor referred to her fair complexion as light bright, the supervisor denied it. Specifically, the supervisor stated, “never because I do not understand or agree with what she means by this comment ‘fair skinned’ because to me the complainant was not that much brighter than myself.” Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. 0120172729 4 Reasonable Accommodation (claim 2) Complainant asserted that on July 10, 2016, she was denied a reasonable accommodation. Complainant alleged that she requested to stay on the day shift and to receive advance notice of a schedule change until her son’s illness was stable. However, she said the supervisor denied her request. Under the Commission's regulations, an agency is required to make reasonable accommodation to 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. The Commission has held, however, that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at n. 5 (October 17, 2002). In the instant case, Complainant argues that she was discriminated against based on her association with her son, a disabled person, when she was denied a request for reasonable accommodation concerning her schedule. However, we find that the Agency was not obligated to accommodate Complainant’s schedule because the requested accommodation was not related to her own ability to perform the essential functions of her job, but rather was related to her son's condition. Constructive Discharge (claim 4) Complainant asserted that on July 25, 2016, she was forced to resign during her probationary period. The supervisor stated that she had no prior knowledge of Complainant’s resignation. Specifically, the supervisor stated that on July 7, 2017, she informed Complainant “of the schedule change as staff has to be provided notification before we can make changes to their schedule. It was after her receiving notification of the schedule change she put in her resignation voluntarily.” In essence, by arguing her resignation was coerced by the Agency's actions, Complainant is raising a claim that she was constructively discharged. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Here, we conclude that Complainant has failed to prove that the change in schedule, which we have already found was not motivated by discriminatory factors, resulted in a constructive discharge from the Agency. 0120172729 5 CONCLUSION We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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). 0120172729 6 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 November 23, 2018 Date Copy with citationCopy as parenthetical citation