Willia M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171396 (E.E.O.C. Nov. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Willia M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120171396

Agency No. 2003-0741-2016103904

DECISION

On March 8, 2017, 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 7, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

1. Whether the Agency discriminated against Complainant based on her disability when it
allegedly failed to provide a reasonable accommodation.

2. Whether the Agency discriminated against Complainant based on her disability, and in
reprisal for prior EEO activity, when it removed her.

3. Whether the Agency subjected Complainant to a hostile work environment based on her
disability, and in reprisal for EEO activity.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative at the Agency’s Chief Business Office, Purchased Care, in Denver, Colorado.

On July 22, 2015, Complainant’s first-line supervisor (S1) (disability, no prior EEO activity)
issued Complainant a Written Counseling for inappropriate conduct and providing false
information to a caller. Report of Investigation (ROI) at pgs. 151-152. On August 14, 2015, S1
issued Complainant a Proposed Admonishment for two instances of inappropriate conduct when
she intentionally disconnected calls with customers. The Admonishment was sustained on
September 4, 2015. ROI at pgs. 153-156.

On October 1, 2015, the Deputy Chief (DC) (no disability, prior EEO activity) issued Complainant
a Proposed 5-Day Suspension for three instances of inappropriate conduct with customers, and
four instances of failure to follow instructions when she did not report technology issues to her
supervisor. On October 30, 2015, the Chief of the Customer Service Center (CCSC) (no disability,
prior EEO activity) sustained the proposal, and Complainant was suspended from November 17-
19, 2015. CCSC reduced the suspension to three days because Complainant took full responsibility
for her actions, and indicated that she was under stress. ROI at pgs. 158-163.

On January 27, 2016, Complainant was issued a proposed removal for Inappropriate Conduct and
Lack of Candor. ROI at pg. 49. On January 28, 2016, Complainant received a tentative job offer
as an Accounts Receivable Technician. ROI at pg. 241. On February 2, 2016, the Selecting Official
(SO) (no disability, prior EEO activity) rescinded the job offer after receiving negative feedback
from CCSC. ROI at pgs. 46,54.

On February 24, 2016, Complainant signed a Last Chance Agreement (“LCA”) with the Agency.
The Agency affirmed its decision to remove Complainant, but held the removal action in abeyance
for one year and six months, as long as Complainant did not engage in inappropriate conduct, and
maintained a fully successful level of work performance. Complainant was also suspended from
March 1-10, 2016. Complainant agreed that if she violated a condition of the LCA, her removal
would be effective immediately. ROI at pgs. 172-174.

On March 21, 2016, Complainant requested a reasonable accommodation of a reassignment from
her current position. ROI at pgs. 95-96. On April 11, 2016, Complainant’s second-line supervisor
(S2) (disability, prior EEO activity) denied her request for a reassignment, but granted her
additional breaks, not to exceed thirty (30) minutes per work day; Complainant was instructed to
make up any time no later than 6:00 p.m. each day, or by taking a form of leave. ROI at pgs. 97-
98. On April 15, 2016, Complainant requested a reconsideration of her request; Complainant’s
third-line supervisor (S3) (no disability, prior EEO activity) denied her reconsideration. ROI at
pgs. 108-110, 119. Complainant initially declined the breaks as an accommodation, but changed
her mind on or about May 5, 2016. ROI at pgs. 103-105.

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On June 3, 2016, the Director of Customer Experience (DCE) (no disability, prior EEO activity)
removed Complainant, in accordance with the LCA. The removal was based on two instances
when Complainant inappropriately transferred callers. ROI at pgs. 175-176.

On July 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (depression and severe anxiety), and reprisal for prior
protected EEO activity arising under the Rehabilitation Act,2 when:

A. from March 21, 2016, it did not provide a reasonable accommodation;

B. on June 3, 2016, it terminated her employment; and

C. it subjected her to a hostile work environment when:
1. on February 2, 2016, an Agency official rescinded a job offer;3
2. from March 21, 2016, through July 19, 2016, Agency officials have not
responded to Complainant’s request for a reasonable accommodation; and
3. on June 3, 2016, Agency officials terminated Complainant’s employment.

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 EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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 Agency affirmed its earlier partial dismissal of Complainant’s allegation that she was
discriminated against when the Agency rescinded a job offer because the claim is untimely. With
regards to Complainant’s reasonable accommodation claim, the Agency found that Complainant
received an alternative accommodation, which she initially rejected, but the later accepted. The
Agency noted that Complainant requested a reassignment as an accommodation, which is the
accommodation of last resort after determining that there were no effective accommodations or
that all other accommodations would impose an undue hardship.

2 The Agency noted that Complainant stated that her protected EEO activity was a complaint
against the local union, which is not considered protected EEO activity. However, the Agency
found that Complainant’s request for a reasonable accommodation is protected EEO activity. The
Agency found that Complainant established protected EEO activity for claims B and C3, but not
for claims A, C1, and C2 because these events occurred prior to the protected activity.

3 On September 2, 2016, the Agency dismissed this event as an independent claim of
discrimination due to untimely contact with an EEO counselor on May 17, 2016. However, the
Agency included it as part of the harassment allegation.

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In this case, the Agency determined that Complainant did not report that the granted
accommodation of additional work breaks was ineffective after she accepted it, and prior to her
removal.

For claim B, the Agency did not include a prima facie analysis on the bases of disability and
reprisal for prior EEO activity, and found that the management officials articulated legitimate,
nondiscriminatory reasons for their actions. The Agency found that the collective statements by
S1, S2, S3, CCSC, and DCE, revealed that Complainant repeatedly engaged in inappropriate
conduct, even after receiving counseling and disciplinary action to correct this conduct.

The Agency then found that Complainant had not shown that its reasons were pretext for
discrimination. Complainant stated that she did not understand how she violated the LCA when
she recently received a Fully Successful performance appraisal. However, the Agency noted that
Complainant had not rebutted the Agency’s evidence showing that she violated the LCA with
repeated inappropriate conduct. The Agency further noted that when an employee’s misconduct
leads to discipline, an agency does not have a duty to excuse the misconduct as a form of
reasonable accommodation. The Agency found that Complainant had not met her burden of proof
to show a discriminatory motive by management officials when she was removed.

For Complainant’s harassment allegation, the Agency noted that since it already determined that
claims A, B, C2, and C3 were not found to be discriminatory, the only claim that remained was
C1. The Agency found that C1 was only one incident involving a normal business-related decision,
and that SO did not have knowledge of Complainant’s protected categories, and was not involved
in her chain of command. The Agency found that there was no evidence of abusive or demeaning
behavior, or actions directed against Complainant. The Agency concluded that Complainant had
not demonstrated by a preponderance of the evidence that she was discriminated against based on
her disability, or in reprisal for her EEO activity.

Complainant filed the instant appeal and submitted a statement in support of her appeal on April
7, 2017. The Agency filed a response to her appeal on April 27, 2017.

CONTENTIONS ON APPEAL

On appeal, Complainant states that she denied the offered accommodation because she was already
afforded a 10-minute break for each hour worked, and that the accommodation would not
accommodate her disability. Complainant argues that she has still not received a formal denial of
her request. For her removal claim, Complainant alleges that the management officials were aware
of her disability prior to her termination, and that her Employee Assistance Program (EAP)
“classes were not taken serious[ly].” Complainant also asserts that CCSC retaliated against her by
giving a false statement in warning other departments not to hire her. Complainant provided
additional documents with her statement. The Agency argues that Complainant has not proffered
any factual allegations that the alleged actions were based on any discriminatory animus, and
requests that the Commission affirm its final decision.
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ANALYSIS AND FINDINGS

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”).

We note that Complainant provided some new documents with her appeal, while some are already
contained in the record. As a general rule, no new evidence will be considered on appeal absent an
affirmative showing that the evidence was not reasonably available prior to or during the
investigation or during the hearing process. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). The new
documents include an email from Complainant’s union representative dated March 31, 2017,
regarding CCSC’s statements to SO;4 an email chain between Complainant and CCSC regarding
use of leave without pay; and Complainant’s personal prescription information. Complainant has
not shown that this evidence was not reasonably available prior to or during the investigation, and
accordingly, we will not consider these submissions on appeal.

Failure to Provide Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodation to
the known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§ 1630.9. In order to establish that Complainant 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 a reasonable accommodation. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).

For the purposes of this decision, we will assume that Complainant is a qualified individual with
a disability, and we find that the Agency granted her a reasonable accommodation. While
Complainant asked to be reassigned as a reasonable accommodation, the Commission has long
held that reassignment is the reasonable accommodation of last resort, and is required only after it
has been determined that there are no effective accommodations that will enable Complainant to

4 Complainant’s union representative provided a similar statement that is part of the record of
evidence. ROI at pg. 242.
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perform the essential functions of her current position or all other reasonable accommodations
would impose an undue hardship. Zachary K. v. Department of Veterans Affairs, EEOC Appeal
No. 0120130795 (November 19, 2015) citing EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (October 17, 2002). In this case, Complainant has not shown that the additional work
breaks that the Agency granted as an accommodation were in any way ineffective. While
Complainant argues on appeal that she was already afforded ten (10) minute breaks for each hour
worked, we note that the accommodation granted her additional breaks from work, on top of her
regular breaks. Additionally, Complainant argues that the granted accommodation “was not going
to accommodate [her] disability;” however, she has not shown this to be the case during the
timeframe during which she utilized the accommodation. Consequently, we find that the Agency
fulfilled its obligation to provide Complainant with a reasonable accommodation.

With respect to Complainant’s argument that she never received a final determination on her
request for reasonable accommodation, the record shows that S3 emailed Complainant on April
28, 2016, confirming that she made the “final decision” to deny a reassignment, and reminded
Complainant that she did not accept the alternate accommodation. ROI at pg. 108. While
Complainant argues that she never received an Agency form or “denial document,” S3’s email is
clear in notifying Complainant of the denial of her requested reasonable accommodation of a
reassignment.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

As an initial matter, we note that the Agency properly gave Complainant appeal rights to the Merit
Systems Protection Board (MSPB) for her removal claim.
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It is not clear if Complainant filed an appeal with the MSPB, but she appears to be appealing the
finding of no discrimination for her removal to the Commission.5 Nevertheless, the Commission
properly may assume initial jurisdiction of a mixed case issue (i.e., an adverse action which is
properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly
enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural
complications to remand it to the MSPB. See Richardson v. Dep’t of Veterans Affairs, EEOC
Appeal Nos. 01982915, 01984977 (Nov. 5, 2001). In this case, we find that this claim is so firmly
enmeshed in the EEO forum that it would better serve the interests of administrative economy to
address it in the instant appeal. We also affirm the Agency’s dismissal of incident C1 as a discrete
claim of discrimination due to its untimeliness, and will only consider it as part of her harassment
allegation.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
disability and in reprisal for prior EEO activity, we find that the management officials articulated
legitimate, nondiscriminatory reasons for their actions. For claim B, S1 stated that Complainant
was given progressive discipline for her conduct. S1 noted that on the day that Complainant
returned from a suspension, she hung up on a caller, making it clear that her behavior was not
going to change. ROI at pg. 78. DCE stated that S1 proposed Complainant’s termination, and that
she supported the removal because Complainant showed no remorse for her actions, and repeated
the same behavior. ROI at pg. 82.

We find that Complainant has not shown that these reasons are pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. On appeal,
Complainant states that her managers were aware of her disability prior to her removal, and that
they did not take her EAP classes seriously. However, we do not find this to prove pretext for
discrimination. Accordingly, we find that the Agency did not discriminate against Complainant
based on her disability, or in reprisal for prior EEO activity, when it removed her from the Agency.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive such that it results in an alteration
of the conditions of the Complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994).

5 The Commission notes that in the LCA, Complainant waived her right to challenge her removal
to the MSPB, or any other administrative or judicial body. ROI at pg. 173. However, the Agency
has not sought to enforce this provision, and accordingly, we will address Complainant’s removal
claim in the instant appeal.
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To establish a claim of harassment a Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the statutorily protected class; (4)
the harassment had the purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (Oct. 16, 1998).

For Complainant’s claim that she was subjected to a hostile work environment, we find that she
has not shown that any of the complained of conduct was based on her protected classes. As noted
above, the Agency did not discriminate against Complainant based on her disability because it
provided her with a reasonable accommodation; and the Agency removed Complainant based on
multiple instances of inappropriate conduct. For incident C1, SO stated that CCSC informed him
that there was a pending removal action against Complainant, but that she did not provide any
details about the action. SO also stated that he was not aware of Complainant’s disability or her
EEO activity, until he was contacted for the instant complaint. ROI at pgs. 55, 53. Additionally,
Complainant has not provided any evidence showing that CCSC made a false statement to SO.
Accordingly, we find that the Agency did not subject Complainant to a hostile work environment
based on her disability, or in reprisal for her EEO activity.

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 finding that the Agency
did not discriminate against, or subject Complainant to harassment, based on her disability, or in
reprisal for prior EEO activity, when it allegedly failed to provide a reasonable accommodation;
removed her; and rescinded a job offer.

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
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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 Operation

November 7, 2018