0120160242
03-13-2018
Vernie M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vernie M.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160242
Hearing No. 532-2014-00092X
Agency No. 200H05412013103737
DECISION
On October 5, 2015, 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 August 31, 2015 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
Whether the evidence of record supports a conclusion that Complainant was discriminated against based on her disability and/or subjected to unlawful retaliation with regard to a mid-year performance evaluation, a written counseling, incidents of harassment, and the EEO Manager's comments about her complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Louis Stokes Cleveland VA Medical Center, Community-based Outpatient Clinic facility in Youngstown, Ohio. At all times, she had the same supervisor, the Nurse Manager ("S-1").
On July 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and/or reprisal for prior protected EEO activity when management:
a. issued her a mid-year performance evaluation (MPE) with a rating of "Unacceptable" and subsequently edited her MPE on May 28, 2013;
b. issued her a written counseling on June 13, 2013; and
c. between May 21, 2013 and June 28, 2013, she was subjected to a hostile work environment.
In addition, Complainant alleged that she was subjected to unlawful retaliation when:
d. on or about June 18, 2013, the facility's EEO Manager making various derogatory statements regarding her complaint.
Complainant's disability claim stems from undergoing kidney dialysis and receiving a kidney transplant before the events at issue.2 Complainant had worked with S-1 for several years before she requested a number of accommodations for her kidney condition. In her affidavit, she described her accommodations as "being allowed to go to dialysis and use my vacation and sick time, to be allowed to carry my telephone on me at all times, and to be able to go to doctor's appointments without being harassed about it." She also was not to "lift anything over ten pounds." Complainant does not dispute the Agency's assertion that it implemented all of Complainant's requests for accommodations. Complainant's prior EEO activity arises from requesting the reasonable accommodations for her kidney condition. It appears the events Complainant challenged in her complaint occurred after she had returned to work following her kidney transplant.
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). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant submitted no contentions on 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, 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").
Disparate Treatment - Claims (a) and (b)
A claim of disparate treatment or reprisal are examined under the three-party 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 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, the Agency articulated legitimate, non-discriminatory reasons for its actions.
Regarding Claim (a), Complainant alleges that in May 2013, S-1 issued her a mid-year rating of "unacceptable" and subsequently edited the evaluation to including the hearing, "Warning of Unacceptable Performance." S-1 explained that she issued the mid-year to document Complainant's failure to comply with time and attendance requirements not impacted by Complainant's accommodations. After Complainant challenged the evaluation, S-1 consulted with Human Resources, and was advised that "conduct" issues (like time and attendance) should not be addressed in the mid-year, but rather should more properly be reflected on the Annual Appraisal. Therefore, S-1 issued Complainant a corrected mid-year, deleting the references to Complainant's conduct issues, as well as the heading, "Warning of Unacceptable Performance."
Regarding Claim (b), S-1 stated that the Complainant was issued the counseling on June 13, 2013 for having lunch with a patient, an activity is prohibited under Agency policy.
After review of the record, we conclude that Complainant did not prove, by a preponderance of the evidence, that the proffered legitimate, non-discriminatory explanations by the responsible Agency manager were a pretext designed to mask discrimination on any basis alleged.
Harassment
Regarding Claim 3, harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In brief, in addition to the mid-year appraisal and the written counseling referenced above, Complainant claims that S-1 harassed her by changing some of her duties (which were later changed back), and requiring her to assist patients late for their appointments with registration. Complainant also alleged that in a meeting S-1 stated that Complainant "reports off from work for months at a time" when discussing scheduling. S-1 denied revealing any information about Complainant's medical condition.
To prove her harassment claim, Complainant must establish that she 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 her protected bases -- in this case, disability and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her disability or retaliatory animus. Previously in this decision, we concluded Complainant's disability or retaliatory animus played no role in the disputed mid-year appraisal or the written counseling. Complainant's remaining harassment allegations concern ordinary workplace assignments and other job-related matters, and there is simply no evidence that these actions were related to Complainant's disability or prior requests for accommodation. As such, she has failed to meet her burden of establishing motivation regarding her harassment claim.
Alleged Actions of EEO Director
On June 18, 2013, the Agency's EEO Director was accused by Complainant of advising her that she (Complainant) "did not have a case." The EEO Director acknowledged communicating with Complainant by email and telephone, but denies making that statement. The EEO Director said that the bulk of her communications with Complainant concerned her requests for reasonable accommodations, requests that the Agency asserts were granted.
There is no evidence other than Complainant's bare assertion to support her claim that the EEO Director attempted to interfere with her right to pursue an EEO complaint. Without a credibility determination from a hearing or the production of other evidence, no conclusion can be drawn that either version is true. However, Complainant chose to withdraw her request for a hearing. Accordingly, no decision on this claim can be decided in Complainant's favor.
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 FAD.
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).
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
__3/13/18________________
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 We will presume, for the sake of analysis, the Complainant is an individual with a disability within the meaning of the Rehabilitation Act.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160242