0120172795
09-25-2018
Valda R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valda R.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172795
Agency No. 200I05212016104150
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 July 31, 2017 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse, Ambulatory Surgery Facility, at the Agency's Birmingham VA Hospital, in Birmingham, Alabama.
On June 14, 2016, Complainant made contact with an EEO Counselor. On September 17, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of disability (bunionectomy) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973, when:
1. On March 25, 2016, the Nurse Manager asked her for a more updated letter from her physician regarding her medical restrictions;
2. On March 28, 2016, Complainant was treated abruptly after she provided the supervisor with a note from her physician stating that she needed time off;
3. On April 14, 2016, the Nurse Manager put her hands in Complainant's face, when Complainant asked for help with three patients in Surgery and later the Nurse Manager said that "You should be happy it is not 4 or 5."
4. On April 8, 2016, Complainant was questioned about a leave request and the Nurse Manager kept repeating the questions like the supervisor did not understand;
5. On June 8, 2016, the Charge Nurse informed her that she had to find someone to work for her on June 17, 2016, after Complainant informed the Charge Nurse that Complainant would need the time off for a subpoena in court and was told that she could not have the time off if she did not find a replacement;
6. On July 21, 2016, the Nurse Manager informed Complainant that the Nurse Manager needed Complainant to make "call backs" and that the Nurse Manager has been rude and abrupt with her since May 2016, and never spoke to her in a kind way or said hello.
Claim 1 - Request for Updated Medical Information
Complainant reported to the Nurse Manager (no disability, prior EEO activity) (S1). The Chief Nurse, RN IV (no disability, no prior EEO activity) was her second line supervisor (S2).
Complainant had foot surgery (bunionectomy) on February 22, 2016. Thereafter, she was on leave. On March 8, 2016, Complainant returned back to work. She was then permitted to work "light duty," doing sedentary duties, and using a scooter, per her doctor's order.
On March 21, 2016, after returning from a visit with her doctor, Complainant informed S1 that Complainant needed to continue to do the same jobs that she had been doing for the past few weeks. Complainant told S1 that the doctor's orders should remain in effect for at least four to six weeks.
On March 25, 2016, S1 observed Complainant standing and walking around the medical center, without her scooter.
S1 asked Complainant to take a patient's vital signs. Complainant refused. S1 provided Complainant a document that had a list of things that the Nurse Manager wanted her to do, starting the following week. S1 asked Complainant to sign the document. S1 told Complainant that she (as the Nurse Manager) needed updated documentation about her restrictions from Complainant's doctor, updated from Complainant's appointment on March 21, 2016. Complainant stated that she would not sign, because "these were things that were not approved by her doctor."
The Nurse Manager (S1) averred that she was required to ask for updated restrictions as Complainant's original letter had expired.
Complainant asked later if she needed to get her doctor to "write [her] off for the remainder of her recovery for her health." She was told "no." Complainant said to S1 that she did not want to compromise her health.
S1 told Complainant that if Complainant could not do the duties listed, that she could no longer accommodate Complainant with light duty. S1 also told Complainant that, based on her observations, she believed that Complainant was able to do what was on the list. Complainant took issue with being required to do patient care, because, if the patient "coded," Complainant would be expected to do resuscitation. S1 told Complainant that Complainant could "call a code," and that her management would understand why she was calling a code, because she was on light duty.
Claim 2 - Medical Documentation for Off Duty Until Full recovery
S1 stated that the requested documentation was required in order for S1 to continue Complainant in her limited duty assignment. The doctor provided Complainant with an excuse to be off from work.
Claim 3 - Assigned three patients on April 14, 2016
On April 11, 2016, Complainant returned back to work without any restrictions. On April 14, 2016, Complainant was providing "patients care." Complainant stated that she was on the surgery side with three patients by herself. She went to her second-line supervisor to tell her about the situation. The supervisor walked toward Complainant, with her hand up in Complainant's face and cut her off in mid-sentence. Complainant stated that the second-line supervisor (S2) asked her if she talked first with her charge nurse (S1). Complainant stated that she had, but nothing had been done. S2 told Complainant "Don't talk to me," with her hand still in Complainant's face. Later, Complainant was told that she should be happy it was not four or five.
S1 and S2 averred that this incident did not occur as Complainant described.
Claim 4 - Questioned About Her Leave Request for May 3
On April 18, 2016, Complainant sent an email to S1, stating that she needed May 3, 2016, off for a family matter. S1 replied as if she did not understand the email request. Complainant replied that she put in a leave request to take time off to care for a family member. The supervisor then called and asked for the same information as Complainant had provided in the email. The leave request was approved for May 3, 2016.
Claim 5 - Required to Find a Replacement for June 17, 2016
S1 acknowledged that she and Complainant had communicated via e mails on June 13, 2016, regarding Complainant's informal request to have June 17, 2016 off for a court appointment. S1 told Complainant that Complainant needed to enter the request in the "VISTA system." S1 stated that Complainant had not entered a request for any type of leave for June 17, 2016. Complainant acknowledged that she did not put the request into the system until June 3, 2016, because Complainant went on vacation. The record shows that S2 had granted Complainant leave for that day.
Claims 6 and 7 - Required to Make "Call Backs"/ Rude
On July 21, 2016, S1 approached Complainant with some charts in her hand and S1 told Complainant' "I'm gonna need you to make these call backs." Complainant claimed that S1 never said "hello." S1 recalled that Complainant "snatched the charts out of hand." S1 stated that she had asked several employees to make follow up phone calls. S1 denied that she was hostile in her requests to anyone. S1 also denied that she was disrespectful to Complainant.
According to S2, in July 2016, Complainant told her that she felt she was being harassed by S1. S2 conducted an informal mediation. S2 testified that after a discussion with Complainant, she offered Complainant the option of transferring to another area within Patient Care Service. She also advised Complainant that she could report to someone other than S1. Complainant accepted the transfer offer and voluntarily transferred to a different supervisor on August 15, 2016.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected her to the discrimination as alleged. The Agency reasoned that Complainant failed to demonstrate that the challenged conduct was motivated by her membership in a protected class. The Agency found, with regard to the reprisal claim, that there was only one incident that occurred after she made EEO contact on June 14, 2016. The Agency concluded that she failed to prove workplace harassment because she did not demonstrate that her work environment was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of her employment. Finally, the Agency stated that Title VII is not a general civility code. This appeal followed.
CONTENTIONS ON APPEAL
Complainant did not file a brief on appeal. Instead, she offered a timeline that detailed the sequence of the alleged incidents.
In response, the Agency maintains that the decision is supported by the record and should be affirmed.
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, 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").
Retaliation
Section 717 of Title VII states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination based on race, color, religion, sex or national origin." In addition, Title VII's federal sector law requires federal agencies to proactively ensure that the workplace is made free of discrimination, including retaliation.
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 case 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
The retaliation claim is based on the current EEO complaint. The current complaint references only a single incident that occurred after her EEO contact. That incident occurred on July 21, 2016, when Complainant was asked to make "call backs," along with the other similarly situated employees. The record does not show that she was treated differently than other employees.
Even assuming that Complainant established the elements of her prima facie claims, the Agency articulated a legitimate, non-discriminatory reason for its action in requiring additional documentation and in asking Complainant to do call-backs. S1 stated that she needed updated information to determine the duties that Complainant could perform in order for her to continue carrying Complainant in a light duty assignment. After observing her in the workplace, she determined that Complainant could do patient care, with some modifications. Thereafter, Complainant returned to full duty. Complainant introduced no evidence to show that the stated reasons were a pretext for discrimination. Moreover, the record established that others who were not in her protected group were treated similarly as they were also asked to do patient care and to do "call-backs."
Regarding the harassment claim, the record shows that Complainant notified her supervisor that she felt she was being harassed and that S2 took appropriate action to resolve the matter. We find that Complainant introduced no evidence to support her claims of discrimination or retaliation. In this case, the record shows that the official who requested additional information did so before her EEO contact.
Moreover, without more, we conclude that these isolated remarks are insufficient to establish Complainant's claim of discriminatory harassment. As such, we find that Complainant's claims fail.
Disability Discrimination
The Rehabilitation Act Section 501, as amended, applies the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. The ADA says that an employer may not "discriminate against a qualified individual with a disability." Disability is defined as pertaining to an individual who has a physical or mental impairment that substantially limits one or more of the major life activities "or is regarded as having such impairment; a record such an impairment or being regarded as having such an impairment," 29 C.F.R. � 1630.2(g). An individual may establish coverage under any one or more of these. Employers are also required to provide reasonable accommodation for qualified individuals with a known disability.
With regard to her disability claims, as a threshold matter, we consider whether Complainant was disabled within the scope of the Rehabilitation Act. We note that she did not have a permanent medical condition that substantially limited a major life activity. The Agency assumed for purposes of its analysis, that Complainant established that she was a qualified individual with a disability. For purposes of our analysis, we will similarly assume that Complainant met her burden of showing that she is a qualified individual with a disability.
The record in this case does not show that there was a denial of reasonable accommodation. The Agency granted her the leave that she requested.
In addition, there is no evidence that she was treated differently than others who had no known disability.
We find that Complainant failed to show that the Agency discriminated against her based on her medical condition. Complainant did not establish, by a preponderance of the evidence, that the Agency's stated reasons were a pretext for unlawful animus. For these reasons, we find that the Agency's Decision is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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).
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 25, 2018
__________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172795
8
0120172795