Debra W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 15, 2020

2019003090 (E.E.O.C. Sep. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debra W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003090 Agency No. 200C03102017104195 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 February 27, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an EEO Program Manager, GS-12, within the Office of the Director at the Agency’s Philadelphia Regional Office in Philadelphia, Pennsylvania. Complainant’s first level supervisor at the Philadelphia Regional Office was the Assistant Director (S1). Complainant’s second level supervisor was the Director (S2). S1 started working as the Assistant Director in April 2016, during which time Complainant was on a detail to another office, the MyVA Program. Complainant’s detail ended in August 2017. While on detail, Complainant’s supervisor was Person A; however, S1 maintained administrative supervision over Complainant for such matters as time cards, travel, and HR responsibilities. 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. 2019003090 2 On October 19, 2017, Complainant was realigned in her position as EEO Program Manager under the Office of Resolution Management. Complainant stated she developed various disabilities in 2015 as a result of performing her duties as Reasonable Accommodation Coordinator when management did not appropriately accommodate employees with disabilities and employees would “lash out at her.” She stated that employees cursed at her, threatened her, and had come to her office wanting to commit suicide. Complainant explained she had “extreme thoughts of life and death, difficulty or inability to concentrate, difficulty sleeping, difficulty communicating with people, anxiety, paranoia, bouts of crying, nervousness and irritability.” Complainant stated she had paranoia and fear of being in the office and had to have a panic button installed in her office. First request In April 2017, while still on detail, Complainant submitted Written Confirmation of Request for Accommodation (form 0857A) requesting: (1) telework nine days per pay period - upgrade of her home security system, (2) relocation of her office to the fourth floor, (3) installation of a panic button in her new office, and (4) permission to keep her door closed and locked at all times. Alternatively, Complainant stated if a new office on the fourth floor was unavailable, she requested installation of a second duress button near the door of the front office along with telework nine days per pay period and permission to keep her door closed and locked at all times. Complainant noted the request was time sensitive as her detail on the MyVA Program is ending and she will soon be returning to the Philadelphia Regional Office. In an email dated April 3, 2017, Complainant explained she was submitting medical documentation from February 2017, to support her request. She stated, “Working at home is most productive for me and keeps me out of my counselor’s/doctors chair. However, there are some other options I’d like to discuss.” In support of her request, Complainant provided form 0857e signed by her doctor on February 13, 2017. The doctor noted the severity of Complainant’s condition depended “on the degree and level to which she is confronted with pervious activities/events (i.e. employee suicides, forced participation in activities which violated the rights of employees, etc.).” As for the duration of her impairment, the doctor stated that “continued therapy sessions may lessen the impairments. The doctor stating that “Working from home will help” and noted Complainant would be in a “more controlled and predictable work environment if working from home.” Further, the doctor stated that if the employee worked from home, “she can be more productive, get more work done without being confronted with what caused the anxiety” and “can minimize her need for therapy sessions and the use of natural sleep aids” if working from home on a full-time basis. On July 13, 2017, the Agency provided a response to Complainant’s request. In the “Accommodation Request Determination,” (0857f) Complainant was granted: (1) one day of telework; (2) remain in the same office and installation of a second duress button near the front of the door; and (3) permission to keep her door closed but not locked and signs to be provided so 2019003090 3 employees would be aware of Complainant’s status. The Agency stated it would not upgrade Complainant’s home alarm. Second request The record contains an email dated June 27, 2017, from Person B, HR Specialist, to Complainant regarding her June 22, 2017 request for reasonable accommodation. The email explained the accommodation process and requested in part that Complainant complete form 0857a and that her doctor complete form 0857e. The record contains an email dated July 3, 2017, in which Complainant sent her request for accommodation to Person B. Complainant noted she sent a request form to her doctor and would pick it up later in the week. Complainant also stated she would send her formal request for leave to her managers on the detail assignment. She stated she would also send her request to the Philadelphia Regional Office for approval. The Written Confirmation of Request for Accommodation (0857A) was dated July 3, 2017, and listed the date of request as June 22, 2017. Complainant requested leave as a reasonable accommodation “for counseling and to attend classes to cope with things out of [her] control.” The record contains a July 10, 2017 email from Complainant to Person B with the subject “(Extended) Sick Leave Request” noting Complainant was sending medical documentation and requesting the medical documentation not be shared with anyone. Complainant stated her sick leave balance was over 1,600 hours and she would like to use her sick leave while recovering. She stated although her doctor had her out until September 4, 2017, she desired “to get back to work as soon as possible.” In a July 10, 2017 email, Person B asked Complainant the effective dates. Complainant responded the same day stating she was already in treatment. The record reveals that on July 11, 2017, Complainant submitted a leave request for 40 hours starting on July 10, 2017, and ending on July 14, 2017. On the same day, Complainant emailed S1 and S2 and cc’d Person A. She stated she submitted her leave request to cover that week. She noted that she sent form 0857e to Person B on July 10, 2017, supporting her leave request. S1 responded to Complainant on July 11, 2017 noting that Person B is on vacation and seeking clarification of Complainant’s request. S1 noted that Person B, as Reasonable Accommodation Coordinator, cannot approve leave requests. S1 noted medical documentation for sick leave over three days must be submitted to her. S1 also noted that as Complainant’s detail was ending on August 1, 2017, Person A cannot approve her leave request after that time period. S1 noted that since Complainant was requesting leave past her detail’s final date, she would evaluate the request and provide Complainant with a determination as part of the interactive process. 2019003090 4 S1 requested Complainant submit an SF-71 or an email requesting the leave type, days, and hours requested and noted if Complainant was requesting more than three days of leave, she should provide medical documentation. S1 noted Complainant was in use or lose annual leave and should consider substituting her leave request to utilize her use or lose leave. S1 also noted Complainant might be entitled to Family Medical Leave Act (FMLA) leave. S1 noted Complainant’s request for leave from the prior week was already approved in the system. The record contained a July 17, 2017 email from S1 to Complainant noting Person B was out of the office. S1 stated unless Complainant authorized Person B to share what she submitted with Person B upon Person B’s return, S1 could not approve the leave request. S1 noted she did not know that dates or what type of leave was requested. In a July 18, 2017 email from Complainant to S1, S2, and Person A, Complainant cancelled her reasonable accommodation request for extended sick leave. Third request Complainant made a third request for accommodation on July 19, 2017. Complainant submitted her request to S1 and S2. Complainant requested: (1) a “full flex schedule;” (2) liberal use of sick leave throughout the week for appointments; (3) to “flex in and out” to see the on-site nurse; and (4) annual leave for religious purposes for the first three days of August and September. On August 3, 2017, Complainant received an official response granting all of her requests. On August 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her when: 1. In July and August of 2017, Complainant’s requests for reasonable accommodation were denied and/or delayed. 2. In July and August of 2017, Complainant was subjected to a hostile work environment based on disability when: a. On July 13, 2017, the Agency shared her EEO activity information with a former employee; b. On August 4, 2017, Complainant's supervisor told her she could no longer send emails out of the building unless they were reviewed and approved by her; c. On August 4 and 17, 2017, Complainant's supervisor pressured her to apply for extended sick leave under the FMLA instead of the reasonable accommodation program; 2019003090 5 d. On August 18, 2017, Complainant's supervisor “harassed her via email for recording a VA related reasonable accommodation training session without permission;” e. On August 19, 2017, Complainant's extended/24-hour internet/Local Area Network (LAN) access was removed;2 and f. On August 31, 2017, Complainant was kicked out of a meeting for having her cell phone with her. 3. Complainant was subjected to reprisal through denial/delay of reasonable accommodation (Claim 1) and a hostile work environment (Claim 2). 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In its final decision, the Agency presumed Complainant was a qualified individual with a disability. Regarding Complainant’s first request for reasonable accommodation, the Agency noted that it denied Complainant’s request to telework nine days per pay period, her request to be relocated to the fourth floor, and her request to have her home security system upgraded. The Agency noted as an alternative, it offered one day of telework per pay period and the installation of a second duress button for her current office. Denial of 90% Telework Regarding telework, S1 stated Complainant could not perform the essential functions of her job by being out of the office nine out of 10 days per pay period. The Agency noted Complainant did not dispute that her position required a considerable amount of employee/leadership/stakeholder interaction, but rather stated she felt she could have performed the work from home. S1 stated however that much of the required interaction needed to be done on-site. For example, S1 stated Complainant needed to have office hours because some veterans and employees did not have computers or phones. S1 also stated that Complainant needed to be on-site to assist with mediation and diversity programs. Also, S1 stated Complainant could not access certain sensitive/confidential documents from home. Thus, the Agency determined teleworking nine days a pay period would not have enabled Complainant to perform the essential functions of her job. 2 The Agency also accepted this incident as an independent, discrete act of discrimination based on disability. 2019003090 6 The Agency noted S1 offered an alternative accommodation of one day of telework per pay period. S1 stated she told Complainant she was willing to consider additional telework if Complainant developed a plan to digitize the documents and files she would need to regularly access. The Agency noted Complainant did not dispute this. Rather, Complainant stated S1 could have considered job restructuring or have the interim EEO Program Manager assist with transitioning paper files to an electronic filing system. The Agency stated it was not required to restructure Complainant’s job, or burden other employees with assisting Complainant in transitioning to the electronic file system. The Agency found Complainant’s request to telework was essentially to eliminate the function of having to physically interact with people in the workplace. The Agency found since Complainant stated her condition caused her difficulty in concentrating and communicating with people, it is not clear how telework would have addressed these problems and allowed her to perform the essential functions of her position.3 Denial of Request to Upgrade Home Security System The Agency found a request to upgrade an employee’s home security system is not a recognized form of reasonable accommodation. The Agency stated the reasonable accommodation process imposes no requirement on an Agency to upgrade or alter an employee’s home environment. Thus, the Agency found this request was properly denied. Denial of Request to Relocate Office to Fourth Floor The Agency denied Complainant’s request to relocate her office to the fourth floor. The Agency stated that other than a desire to be “away from the Director’s suite,” Complainant provided no supporting statements or documents as to why a different location would have enabled her to better perform the essential functions of her position. Thus, the Agency found the request was properly denied. To accommodate Complainant’s “fear” and “paranoia,” S1 agreed to install an additional “duress button” in the office, and allowed Complainant to keep her door closed. The Agency found Complainant did not show that the accommodations granted were ineffective. Unreasonable Delay in Providing Accommodations Regarding the reasonable accommodation requests submitted on April 3, 2017, the record shows the Agency officially responded on July 13, 2017. Although this exceeded the Agency’s internal standard of 30 days, the Agency did not find the delay was unreasonable to the extent that it would violate the Rehabilitation Act. First, the Agency noted the delay was not overly lengthy. 3 The Agency noted that once her position was realigned under a different organization, a new supervisor assumed responsibility of Complainant’s reasonable accommodation requests and her telework was increased. 2019003090 7 Second, the Agency noted the record showed Complainant was still on detail during this time, and not performing in the position for which she was seeking accommodation. Third, S1 did respond to Complainant’s request prior to her returning to her position. Fourth, the record sufficiently shows Person B, Complainant, and S1 were engaged in the interactive process during this time. Further, the Agency noted that Complainant’s request was not routine. The Agency stated she presented limitations that raised questions of whether she could still perform the essential functions of the position. Further, the Agency stated there is no evidence Complainant suffered harm as a result of the delay. Hostile Work Environment Regarding her hostile work environment claim, the Agency found Complainant did not establish that she was subjected to offensive conduct or that the alleged behavior was because of her disability. Regarding claim 2(a), Complainant claimed the Agency shared her personal EEO data with a former employee. The Agency noted that Complainant’s name along with the names of responsible management officials and the types of complaints she had filed was submitted by the Agency pursuant to a Merit System Protection Board (MSPB) discovery request. The Agency noted the disclosure did not contain any personal medical information or other protected data. The Agency stated the names of comparative witnesses and the matters to which they may have relevant information is discoverable under MSPB rules of discovery. Regarding claim 2(b), Complainant alleged that S1 informed her that she could no longer send email messages out of the building unless they were reviewed and approved by S1. S1 acknowledged a conversation occurred, but explained it was to remind Complainant of the organizational policy or practice. S1 stated that mass, “send all” messages to the workforce is not permitted unless the email has been approved for mass distribution. S1 denied requesting Complainant send her every email for review before sending it out. S1 also noted that “on many occasions Complainant sent out incorrect or inaccurate information to stakeholders” and that she discussed with Complainant the need to be more accurate in her correspondence. Regarding claim 2(c), Complainant alleged that S1 pressured her to apply for extended sick leave under FMLA instead of the Reasonable Accommodation program. The Agency noted there was no evidence Complainant was “pressured” as to which type of leave to use. S1 acknowledged having a conversation with Complainant about the different option that were available to her, but denied “pressuring” her to take a specific course of action. S1 noted in a July 17, 2017 email, she wanted to make Complainant aware that not only did she have the option of FMLA and reasonable accommodation, but that she also, at the time, had a significant amount of “use or lose” annual leave. Regarding claim 2(d), Complainant alleged that on August 18, 2017, S1 “harassed her via email” for recording an Agency related reasonable accommodation training session without permission. 2019003090 8 The Agency noted Complainant acknowledged she recorded a conversation in Microsoft Link where S1 was a participant. S1 objected to the recording and told Complainant to send her the recording for deletion. S1 stated that anyone that wanted to record her, needed her permission in advance. The discussion took place over email. The email states, in relevant part: “it is not acceptable to record me without my knowledge and permission. You are aware that in a federal facility recordings or photographs require permission. Please forward the recording to me for destruction.” Regarding claim 2(e), Complainant alleged that on August 19, 2017, S1 removed her extended 24- hour internet/Local Area Network (LAN) access. The Agency noted S1 acknowledged this occurred. S1 stated that she submitted the request to grant Complainant extended access when she began her detail, and at the conclusion, she requested Complainant’s access be reverted back to what it was before she started. S1 stated this was in accordance with Agency directives regarding standard LAN access. The Information Technology (IT) supervisor for the facility stated that for network security purposes, and according to Agency policy, no one has automatic 24-hours access to the system network. He stated such access is allowed by exception only, and must be requested by a supervisor. Regarding claim 2(f), Complainant alleged that on August 31, 2017, she was kicked out of a meeting for having her cell phone with her. S1 denied kicking Complainant out of the meeting. S1 stated that “at no time has any employee ever been allowed to bring a cell phone or recording device into a meeting without prior authorization.” S1 stated that she asked Complainant “to put her phone outside at the secretary’s desk until the meeting was over. The Agency noted the record showed Complainant left the meeting and did not return.” S1 sent Complainant an email later that morning inquiring why she “left and did not return to a mandatory meeting.” The HR Specialist was at the meeting and confirmed that Complainant had her cell phone out at the meeting. The HR Specialist stated Complainant was late for the meeting, walked in with her phone out, and that S1 asked her to remove her phone. The HR Specialist stated that after being asked to remove her phone, Complainant said she would be right back but never returned. The Agency found that Complainant provided no evidence to suggest that the actions were based on her disability. The Agency determined Complainant’s hostile work environment claim failed. Disparate Treatment Disability Complainant alleged that S1’s removal of her extended, 24-hour internet/LAN access on August 19, 2018, was an act of discrimination based on her disability. As discussed above, in claim 2(f), the Agency noted IT stated that for network security purposes, and according to Agency policy, no one has automatic 24-hour access to the system network. Extended access is by exception only, and must be requested by a supervisor. S1 submitted a request to IT for Complainant to have extended LAN access while she was on detail and at the end of the detail requested that Complainant’s access be restored to standard access. 2019003090 9 The Agency noted the record contains no evidence S1 acted outside the scope of her responsibility when she requested Complainant’s network access be reverted back to standard access after her detail ended. The Agency noted that Complainant did not deny or otherwise dispute the policy justifications presented by IT. The Agency stated Complainant also failed to rebut S1’s statement that complainant no longer needed extended access since her detail ended. Complainant stated in rebuttal that “S1 removed her extended 24-hour access to the network after she submitted a five- page recommendation on a Saturday to [reinstate] an employee S1 wrongfully terminated.” The Agency noted this does not show pretext for unlawful discrimination. Reprisal The Agency stated that regarding the incidents in 2(a) - 2(f), none meet the requirements of being adverse enough as to deter a reasonable person from engaging in protected activity. Additionally, Complainant failed to show the required nexus between those actions and her protected activity. Moreover, the Agency noted Complainant alleged the denial/delay of reasonable accommodation were acts of reprisal. The Agency found such claims failed. CONTENTIONS ON APPEAL On appeal, Complainant notes that the Agency’s decision incorrectly stated that she did not submit her request to use extended sick leave as a reasonable accommodation until July 11, 2017. Complainant states that she put the Agency on notice regarding her need to use extended leave for disability related reasons when she submitted a verbal request to Person B on June 22, 2017. She stated she submitted form 0857 requesting leave on July 3, 2017. Complainant noted her medical documentation was forwarded on July 10, 2017. Complainant alleged that S1 was attempting to obtain her medical documentation in order to learn her disabilities in order to share them with others. Complainant notes the Agency decision stated the Agency denied her request to have her home security upgraded. Complainant states she did not request to have the Agency perform any personal upgrades to her home. Rather, she notes she was simply advising the Agency in her reasonable accommodation request that an upgrade to her home security alarm was conducted and that she could work safely at home. Complainant further noted that she “now maintain[s] an electronic filing system” and since her realignment has been working from home 90% of the time performing the same duties when her complaint was filed in 2017. 2019003090 10 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”). At the outset, we note that the record reveals that Complainant submitted her second request for reasonable accommodation on June 22, 2017, and later submitted the requisite form 0857 on July 3, 2017. However, we note that ultimately Complainant withdrew her second request for reasonable accommodation. We also note that Complainant stated on appeal that she did not request the Agency upgrade her home security system as a reasonable accommodation, and thus, do not address that matter in our decision. Regarding Complainant’s other requested reasonable accommodations, we find the parties were engaged in the interactive process throughout the relevant time and that Complainant cannot establish that the Agency failed to provide her with a reasonable accommodation, or that there was an unreasonable delay in providing her accommodations. We find Complainant did not establish that the accommodations the Agency ultimately provided were ineffective. Further, we find that Complainant failed to establish that she was subjected to harassment as alleged. There is no evident connection between the alleged harassment and Complainant’s membership in any protected class. The alleged incidents involved: the actions S1 took in accordance with her supervisory duties; the Agency’s actions based on legitimate reasons; and Complainant’s disagreements with management decisions. Regarding the discrete incident, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2019003090 11 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. 2019003090 12 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 15, 2020 Date