Daisy B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181602 (E.E.O.C. Sep. 20, 2019)

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

Daisy B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181602

Agency No. 200P06782017100928

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 28, 2018, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse, GS
12, Step 2, at the Agency’s Southern Arizona VA Health Care System facility in Tucson,
Arizona. Clinical Nurse Manager (CNM) served as Complainant’s supervisor beginning in May
2015, through the date of her resignation.

On August 17, 2016, Complainant injured herself assisting a morbidly obese diabetic patient
with a medical emergency at the facility. Complainant was diagnosed with herniated cervical
discs and given lifting restrictions of no more than 10 pounds. As a result, Complainant was
reassigned to a light duty position in the Gastroenterology (GI) Department that met her medical

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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restrictions in accordance with the Office of Workers' Compensation provisions (OWCP) on
September 21, 2016. Complainant’s light duty restriction restricted her from having face to face
interaction with patients, which was an essential function of her role as a Pulmonary and
Endocrinology (PE) Clinical Nurse.

The light duty position entailed Complainant using the telephone and computer to contact and
triage GI patients in an office she shared with another GI nurse. Complainant signed an
acknowledgement on September 21, 2016, that she reviewed and accepted the light duty
assignment offered. CNM stated Complainant was moved from a supplies office in the
Pulmonary and Endocrinology (PE) Department to an office with another GI nurse in order to
foster coordination with GI efforts and maximize performance. CNM stated Complainant’s
previous position or office did not meet her light duty restrictions. CNM stated Complainant’s
office in PE was utilized for patient consultation and education. Coworker One (CW1) was the
GI nurse reassigned to the PE supplies office, Complainant’s previous work station, in order to
accommodate Complainant’s light duty restrictions.

Complainant stated she objected to this move at that time because the new office was noisier
because of the presence of another nurse using the telephone. Complainant stated she has
Patulous Eustachian Tube Disorder, Tinnitus, and Autophony, conditions which impact her
ability to distinguish foreground voices from background noises and cause her to experience ear
pressure and pulsations. According to Complainant, the noise in the new office impacted her
ability to listen to directions from doctors or information from patients. Complainant alleges she
verbally requested a private office from CNM, but she alleges her request was ignored by CNM.
Complainant also stated she was diagnosed with lymphoma of the stomach, chronic gastritis, and
breast cancer.

On September 26, 2016, CNM met with Complainant to discuss an incident reported by CW1
where Complainant was rude to CW1. CNM addressed this meeting and Complainant’s behavior
in an email to her on September 27, 2016. In that email, CNM stated Complainant has been
hostile, uncooperative, and disrespectful towards CW1 while she attempts to learn her new role,
which was Complainant’s previous position.

On October 13, 2016, Coworker Two (CW2) emailed CNM to detail an interaction she had with
Complainant. On that date, CW2 was assisting a patient while CW1 was unavailable and sought
Complainant’ assistance finding someone in the PE Department to assist the patient. CW2
reported Complainant was “very abrupt.” CW2 stated Complainant stated she did not cover PE
calls anymore and “only if it was an emergency she would talk to them.”

On October 18, 2016, CNM met with Complainant regarding poor performance and
unprofessional behavior. CNM was informed on October 17, 2016, Complainant was behind on
reaching patients by phone for upcoming procedures and met with Complainant to discuss her
progress.

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On October 20, 2016, CNM emailed Complainant as a follow-up to their meeting two days prior.
In her email CNM reiterated her expectations for professionalism and collaboration in her
September 27, 2016 email. CNM detailed the report from CW2 concerning Complainant’s
behavior and unprofessional conduct and disrespectful behavior with her coworkers.
Additionally, in that email CNM stated Complainant was expected to handle 18 to 20 telephone
encounters per day and Complainant was averaging only eight telephone encounters per day.
CNM stated 20 phone call encounters for an eight-hour day was the department’s minimum
average.

Complainant informed CNM in her email response that she could not meet the performance
expectations of the light duty assignment and requested a different position. Complainant did not
state that her disability prevented her from meeting her telephone performance expectations.
Rather, she stated in part that CNM was contributing to her limitations in meeting performance
standards with CNM’s constant badgering, which was “causing acute gastritis which in turn is
detrimental to my stomach lymphoma recurrence.” Excluding her restrictions related to her work
injury, CNM stated Complainant had not informed her, or anyone else to her knowledge, of other
medical conditions. In a statement provided by the Local Reasonable Accommodation
Coordinator (LRAC) for the facility, LRAC attested that Complainant never requested
accommodation verbally or in writing. Additionally, LRAC stated Complainant never provided
documentation that there was a need for accommodation beyond a light duty assignment for her
work-related injury.

On October 30, 2016, Complainant submitted her notice of resignation, effective November 14,
2016, to CNM. Her notice of resignation stated, “the work environment has become untenable
which leads me no other alternative.”

On March 3, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment and discriminated against her on the bases of race (Asian),
national origin (Filipino), disability, and age (47) when:

1. On September 21, 2016, CNM directed Complainant to move to a different
office;2
2. From September 21, 2016 through October 30, 2016, CNM failed to take the
appropriate action when Complainant verbally requested a reasonable
accommodation;
3. On September 26, 2016, CNM verbally reprimanded Complainant in regard to her
behavior toward her peers; and,

2 In the Notice of Partial Acceptance, the Agency dismissed Claim 1 as a discrete act not raised
with 45 days of its occurrence pursuant to 29 C.F.R §1614.107(a)(2) for failing to comply with
the regulatory time limits. However, the Agency determined Claim 1 was sufficiently related to
the overall pattern of harassment and would be included for consideration in the analysis of
Complainant’s harassment claim. Complainant does not challenge the dismissal as a discrete act
on appeal. Accordingly, we will not address it herein.
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4. On October 30, 2016, Complainant resigned her position because of the work
environment.

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). 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. Complainant filed the instant
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”).

Disability

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 an undue hardship. 29 C.F.R. § 1630.9. In order to establish she
was unlawfully denied a reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency
failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(October 17, 2002).

Complainant is not challenging any accommodation denial related to her claimed disability from
her work injury.

Here, assuming, without finding, that Complainant is a qualified individual with a disability, the
record shows Complainant never submitted a reasonable accommodation request for conditions
not related to her work injury in August 2016, for which she received limited duty restrictions.
LRAC attested that Complainant never requested accommodation verbally or in writing.
Contrary to Complainant’s statement that she informed CNM of her medical conditions in
January 2016, CNM stated she was not aware of any of Complainant’s medical conditions except
her work-related injury in August 2016. CNM stated Complainant never indicated she needed a
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separate office for any sort of medical condition. Complainant alleged she first requested an
accommodation verbally when she was informed she had to switch to the GI office. CNM and
CW1 were present when Complainant was informed about her moving offices and both stated
Complainant did not contest the move or make any statement about her need for a quiet room.

Additionally, Complainant alleged that the headphones provided to her to make phone calls were
insufficient to address her hearing condition. However, nothing in the record indicates
Complainant requested different headphones or any other accommodation due to her hearing
condition. Moreover, she did not have work restrictions or doctor’s recommendation for any
accommodation at the time except her limited duty which the Agency accommodated.
Accordingly, we find that Complainant has not shown that the Agency failed to provide her with
a reasonable accommodation or otherwise violated the Rehabilitation Act.

Disparate Treatment

In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department 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 pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, regarding Claim 1
and 2, Complainant alleged she was removed from her office and, subsequently, not provided an
accommodation in the form of a private office. CNM explained that Complainant’s previous
office was a space used for clinical nurses to consult, educate, and examine patients, as well as
used for the PE Department supplies. Complainant’s limited duty restrictions prevented her from
continuing in her previous role, notably interacting with patients. CNM explained Complainant
was moved to the GI office in order to have a limited duty role interacting with patients by phone
and computer. Additionally, CNM stated the shared office allowed the two GI nurses to
coordinate patient care and scheduling. CNM denied Complainant requested a private office for
any medical condition or any other accommodation except limited duties.

Regarding Claim 3, CNM disputed that Complainant received a verbal reprimand. Rather, CNM
stated she met with Complainant on September 26, 2016, to discuss a verbal complaint from
CW1 and a written complaint on October 13, 2016, from CW2. CNM stated the reason for the
meeting was because of Complainant’s behavior towards her peers and poor performance.
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Despite Complainant’s contention that CNM praised her for making five calls per day prior to
her work injury, CNM clarified Complainant was no longer in direct patient care and the
expectation of her light duty assignment was solely making phone calls. CNM stated there was
no basis to assume five calls in an eight-hour day were sufficient when Complainant made five
calls a day while also consulting and educating patients, as well as other clinical tasks, when she
was not on limited duty. CNM, CW1 and CW2 all provided statements concerning
Complainant’s behavior towards her peers. Additionally, to the extent Complainant alleges she
was reprimanded based on her age because CNM stated Complainant should treat CW1 like a
“little sister”. CNM refuted this statement. CNM stated if she made any indication of CW1 and
Complainant’s relationship, she would have reiterated the common conception of the nursing
community as a “sisterhood” and nurses should be cooperative and supportive of one another.
Assuming as true Complainant received a verbal reprimand, Complainant has failed to establish
the Agency’s legitimate, nondiscriminatory reasons for a reprimand were a pretext for
discriminatory animus.

Regarding Claim 4, Complainant alleged she was constructively discharged from her position
due to her untenable work environment created by CNM. The Commission has established three
elements which a Complainant must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in Complainant's position would have found the working conditions
intolerable; (2) the conduct that constituted discrimination against Complainant created the
intolerable working conditions; and (3) 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 Complainant v. Dept. of Justice, EEOC Request No.
05940688 (Apr. 13, 1995)), denial of request for reconsideration, EEOC Request No.
0520160286 (July 6, 2016). Complainant alleged she was not treated poorly by CNM until after
her injury at work. Complainant stated CNM “was nice to me all the time” before her injury at
work. She stated she told her peers the reprimands and “not being treated right” were the reason
she resigned. CNM denied Complainant was constructively discharged from her position or
subjected to an intolerable working environment. Contrary to Complainant’s claims, CNM stated
there were only discussions about courtesy and respect in the workplace towards peers. Here,
based on the weight of all evidence presented, we do not find Complainant has proved a
reasonable person in Complainant’s position would have found the working conditions
intolerable, and we conclude that Complainant has failed to prove that her resignation was a
constructive discharge from the Agency.

Harassment

Additionally, looking at the complaint as one complaint of harassment, we find that the alleged
conduct did not amount to a discriminatory hostile work environment and we find no evidence
that the alleged harassment was motivated by discrimination. Rather, the record reflects evidence
of Complainant’s disagreements with coworkers and normal adjustments to a new position
within her work-related accommodations. Accordingly, we find no reason to disturb the
Agency’s decision finding no discrimination or harassment as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements on appeal, it
is the decision of the EEOC to AFFIRM the Agency’s final decision finding no discrimination.

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
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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 20, 2019
Date