0120141707
07-22-2016
Cecille W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cecille W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141707
Agency No. 2003-0589-2012104563
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 11, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Health Technician at the Agency's Mental Health Service, Veterans Affairs Medical Center in Kansas City, Missouri.
The record reflects that Complainant injured her knees in April 2010, and injured her back on May 1, 2010, both on-the-job injuries. On May 10, 2010, Complainant returned to work with specific physical restrictions. Specifically, her physical restrictions included not restraining disorder patients, lifting, pushing, and/or pulling a maximum of 30 pounds. The Human Resources (HR) determined that Complainant could not complete the essential functions of her Health Technician position due to her restrictions. HR then worked with the Department of Labor to identify a series of light duty positions within Complainant's restrictions. On August 12, 2012, Complainant was offered a permanent clerical position.
On December 3, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for prior EEO activity when:
1. in April 2012 or May 2012, she was denied on the job training (i.e., she was not properly trained to scan health insurance information or trained in correct procedures for walk-in patients);
2. since May 1, 2012, she has received inadequate assistance from management and Human Resources (HR) finding a suitable permanent placement after an on-the-job injury;
3. in May 2012 or June 2012, management failed to act when she reported harassment by her co-worker;
4. on July 19, 2012, she was not allowed to come to work and therefore, not paid;
5. on July 21, 2012, she was not allowed to come to work and therefore, not paid;
6. on August 9, 2012, she was denied sick leave;
7. on August 23, 2012, she was issued a negative performance appraisal;
8. on September 5, 2012, she was denied sick leave;
9. on September 9, 2012, she was denied Predictive Model training;
10. on September 12, 2012, she was denied sick leave;
11. on February 21, 2013, she was denied overtime pay for the hours of 4:30 p.m. through 8:00 a.m. on February 22, 2013;
12. on April 10, 2013, while she was triaging a patient and asking "why are you here sir," the Chief of the Mental Health Clinic, 1st floor, interrupted and said, "flippantly" in front of co-workers and patients, "to see a doctor;"
13. in late April 2013, her request for reimbursement to attend Avila University for job- related studies was denied;
14. on May 2, 2013, she was accused of transferring a call with very little information;
15. during the week of May 5, 2013, she was advised that effective immediately, she was to no longer come into the office before 8:00 a.m.;
16. on May 14, 2013, her request to attend Lead Program training was denied;
17. on May 23, 2013, her request for several in-house trainings was denied, including Time Management Fundamentals, Four Imperatives of Leadership Webinar, Critical Force Communicating with Impact, Dynamic Decision Making, Influencing with Integrity, Creating a Culture of Change and Innovation;
18. on June 5, 2013, she was instructed to work with the Automated Call Distribution (ACD) system while entering groups; and
19. on June 5, 2013, she was instructed to cancel her Effective Communications course.2
After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 11, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its March 11, 2014 final decision, the Agency found no discrimination. The Agency Complainant did not establish a prima facie case of disability discrimination.3 However, the Agency found that Complainant established a prima facie case of reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant submitted no argument on appeal.
ANALYSIS AND FINDINGS
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, he 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).
Complainant's supervisor denied subjecting Complainant to harassment. The supervisor stated that in regard to claim 1, Complainant never approached her requesting training on how to scan health insurance information and follow correct procedures for walk-in patients. The supervisor stated that she had no role in denying Complainant's on-the-job training concerning scanning health insurance information and following correct procedures for walk-in patients. Specifically, the supervisor stated that the Post-Traumatic Stress Clinical Team (PCT) Clinic does not have a scanner for health insurance cards and " [Complainant] assumed that she needed to do this, but I don't think anyone ever told her that she - - this was part of her duty and she needed to do it." The supervisor stated, however, Complainant received training on scanning health insurance information in January 2013.
Regarding claim 2, the supervisor stated that HR and the workman's compensation office took care of finding suitable permanent placement following Complainant's on-the-job injuries.
Regarding claim 3, the supervisor stated that she and the Chief, Mental Health met with Complainant regarding her complaint. The supervisor stated that the complaint "was something like that [Complainant] called someone a bad name or rolled her eyes or - - something to that effect. But I do recall that the three of us did meet with her at one time, one time only, to get her side of that story. But I don't recall her ever [her complaining] about coworker harassment to me."
Regarding claims 4 and 5, the supervisor stated that she recalled receiving a phone call from the Administrative Officer stating that the Administrative Officer had received a call from a Registered Nurse who reported Complainant was in break room with the lights out and "kind of zoned out." The supervisor stated that she then went to check on Complainant to "see if she was okay. And she was kind of - kind of slow to respond...and she said something about she was prescribed - - it's just the new medication or she was prescribed a new medication that's just really kind of making her off. And so at that point, we could not keep her at work." The supervisor stated that she explained to Complainant she had to be medically cleared to come back to work.
Further, the supervisor stated that Complainant returned to work the next day but did not have a doctor's note clearing her. The supervisor stated that she "made that clear before she left that... we have to have a doctor's note saying that you can come back to work and that there's no restrictions and no limitations, that you're okay to come back to work."
With respect to Complainant's allegation that she was not paid during the relevant period, the supervisor stated that Saturday, July 21, 2012 was Complainant's regular day off "because she's a Monday through Friday person. And then July 19th, her timecard shows that she was here till 11:15 a.m. and then it shows sick leave from 11:15 to 3:30. So she was paid. I don't see where she's not paid."
Regarding claims 6, 8 and 10, the supervisor stated that Complainant's request for leave on August 9, 2012 was denied because she wanted to use leave from 12:30 p.m. to 3:30 p.m. and made a note "no lunch." The supervisor stated that she sent a note Complainant letting her know that her request was denied because she could not "combine lunch with leave. Re-enter [the leave request] without lunch. And then [Complainant] re-entered it and it was approved. So, what she ended up actually taking was 12:30 p.m to 3:30 p.m, and she took three hours of sick leave, FMLA. And she took lunch at noon. And so she - and it says, lunch at noon; sick leave at 12:30."
Further, the supervisor stated that on September 5, 2012, she denied Complainant's sick leave request because she did not include "FMLA" in her request. The supervisor stated she does not recall why she told Complainant to change her request to FMLA "but I'm pretty sure I would have called HR and I would have talked to her to clarify what the leave was for and then - and then disapprove it, get that - - and then send that message to her. And then once - - once she put it in, it's been approved. I have the sheet that says it was approved."
With respect to Complainant's allegation that on September 12, 2012, her sick leave request was denied, the supervisor stated "I believe this is one of the days that she claimed that we denied her sick leave, but I don't even think she requested it."
Regarding claim 7, the supervisor stated that on August 23, 2012, she met with Complainant to discuss her midterm review. The supervisor stated that Complainant was unhappy and defensive about her "needs improvement to be fully successful" rating.
Regarding claim 11, the supervisor stated that on February 21, 2013, it was a day "where we were all snowed in and the facility allowed staff to stay over if they wanted to, if they didn't want to drive in the snow. [Administrative Officer] had done most of the arrangements with [Complainant], because like I said, she wasn't working in my area. So my understanding is she slept over on her own accord. She wasn't - - she didn't do any work...I don't remember her even asking for the overtime, but we didn't give overtime for those who just slept over because they wanted to."
Regarding claim 15, the supervisor stated that the Administrative Officer and the clerical supervisor expressed concerns that patients felt that Complainant was ignoring them by letting them wait in the hallway outside the Medical Health Clinic before opening hours. The supervisor stated that the clerical supervisor advised Complainant that when she gets in the office "if you can go ahead and just open the door and have - - the patients in the clinic so they can sit in the waiting area instead of standing out in the hallway. And the problem - and that was fine, but he problem is what she would do is she would sit back in the - - it's a glass area, so when you sit - - to check in patients, it's a glass area. And patients were perceiving that she was sitting back there and ignoring them. So what we had asked her to do that... don't sit in that check-in-area before 8:00 so patients won't think that she's ignoring them and not taking care of their needs."
Regarding claim 19, the supervisor stated that she and the Administrative Officer notified Complainant that she had to cancel her Effective Communication course because of her work schedule. The supervisor stated "we did talk to [Complainant] about was, let's try to get you into a similar course, because you're not going to get the full effect of that whole-day course if you're only going half-day." The supervisor stated that on the day in question, Complainant had a workman's compensation appointment half of the day.
The Chief, Mental Health, also Complainant's second-level supervisor, stated that in regard to claims 9, 13, 16 and 17, she denied Complainant's reimbursement to attend Avila University for job-related studies because she felt that the course did not meet met the mission of her duties. Specifically, the Chief stated that she felt the leadership course Complainant wanted to take "met the mission of her health tech duties or her ability to carry out her health tech duties in support of the mission. And also, by July of the fiscal year, I was quickly running out of the money and again could not spend $2,000 on one person. I encouraged her alternatively, from the very beginning when she first submitted the initial request to me, that - I advised her that we do support training and education...I also encouraged her to look for training duties in keeping with her duties in the local community."
The Chief also stated that while Complainant attended a number of training sessions, there were several that were cancelled "before she was able to take them. Some of the training dates, she scheduled and then went on leave. Some of the training dates were just short notice. For example, she may tell us on a Friday that she had scheduled - or wanted to take training on a Monday. So, we tried to approve as many as we were able to for her...I understand she feels that because she didn't go to every single one that she asked for that she felt that was unfair. But, she did go to a number of them."
With respect to Complainant's harassment claim, the Chief stated that on one occasion, Complainant informed her that several clerks were being rude to her. The Chief stated that she arranged to have the other clerks' supervisor meet with Complainant to discuss her concerns. Thereafter, the Chief met with Complainant and asked her "to specifically provide information to me what exactly was occurring in the clinic that she was concerned about or that she felt harassed about. She gave me very, very vague information. And when I tried to get more information, she either did not want to provide it or could not provide it. And then she abruptly requested to end the conversation, stating that she did not feel she could say any more because of the active EEO case that was open."
The General Mental Health Clinic supervisor (Clinic supervisor) stated that in regard to claim 12, he was in the front office when Complainant was triaging a patient and the patient attempted to explain to her why he came in the walk-in. Specifically, the Clinic supervisor stated that the patient "had made it clear that he was there to speak with his provider...[Complainant] continued to ask similar questions, such as, what are you here for? And I basically input that information there to state that the patient said he's here to see a doctor and that I was inferring by that that I would like to see her progress with the questions as far as what can we help you with or what would you like to see your doctor for or to ask some follow-up questions to that...I don't recall being - - being flippant or - - or dismissive or - - or anything else. I was just addressing the situation that I had viewed at the window."
With respect to claim 14, the Clinic supervisor stated that one of the marriage and family therapists informed him that a call had been transferred to her from Complainant with very little information. For instance, the Clinic supervisor stated that the therapist was not familiar with the caller and "was taken quite surprise by the call. The patient's wife was - was angry, agitated, and - and made several statements that she wanted a divorce from the veteran." The Clinic supervisor stated that he sent an email to Complainant advising "against transferring the call without gathering any information from the caller, in case the call is dropped or in case the situation escalates. Situations like that could lead to - - to situations where we don't know who's called and we are faced with the task of trying to track down that information after the fact."
Regarding claim 18, the Administrative Officer stated that all of the clerks "all alternate taking calls when entering group appointments. And I just asked [Complainant] could she take calls and intermittently enter appointments when she didn't have a call."
In sum, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for the actions taken, as detailed above, were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning the formal complaint because the preponderance of the evidence of record does not establish that discrimination occurred.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
July 22, 2016
__________________
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 The record reflects that claims 10 - 19 were later amended to the instant formal complaint.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
4 On appeal, Complainant does not challenge the December 21, 2012 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of disability and in reprisal for prior EEO activity when on November 14, 2012, she overheard the HR Specialist say during a mediation session that if Complainant refuses a demotion, she would be separated). Therefore, we have not addressed this issue in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141707
2
0120141707
10
0120141707