Jeanie P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 30, 20190120180573 (E.E.O.C. Apr. 30, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeanie P.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180573 Hearing No. 443-2016-00132X Agency No. 200J-0695-2015104586 DECISION On November 22, 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 October 24, 2017 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order. BACKGROUND Complainant worked as a Certified Peer Support Specialist, GS-0342-09, at the Zablocki Health Care Complex in Milwaukee, Wisconsin. On October 27, 2015, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of disability (post-traumatic stress disorder - PTSD; anxiety disorder; irritable bowel syndrome) and in reprisal for prior protected EEO activity. She identified as the responsible officials: the GS-13 Lead Social Worker within the Mental Health Program, her immediate supervisor (S1); her Team Lead (TL); and the Mental Health Division Manager (DM). She identified the following incidents in support of her claims: 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. 0120180573 2 1. In mid-June, S1 failed to provide Complainant with a reasonable accommodation; 2. On July 13, 2015, S1 and TL discussed Complainant’s reasonable accommodation with her coworkers; 3. On September 3, 2015, S1 threatened to charge Complainant with absence without leave (AWOL); and 4. On September 3, 2015, S1 required Complainant to call in daily before her shift. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 24, 2016 motion for summary judgment and issued a decision without a hearing on October 11, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Reasonable Accommodation Complainant served on active military duty in Iraq between 2003 and 2004, and as a result of her experiences, developed a number of debilitating conditions, including PTSD, anxiety, and irritable bowel syndrome. She received a service-connected disability rating of 100 percent and was informed by her treating physician that her condition would be permanent. She averred that when her conditions flare up, they affect virtually every aspect of her life, including sleep, concentration, thought patterns, moods, eating, social interactions, and personal relationships. IR 163-64. She further stated that while she was not under medical restrictions, she needed to have an office with a window and an adjacent bathroom as a reasonable accommodation. IR 164-65. In February 2015, Complainant and several others were informed that they would be relocating to new offices. In May 2015, Complainant and her officemate were moved into their new office. Complainant had not submitted a reasonable accommodation request at that point. She averred that between February and July 2015, she had email, telephone, and in-person conversations with S1 and TL regarding her need for an accommodation. On June 17, 2015, Complainant’s physician provided a letter requesting reasonable accommodation. Specifically, Complainant’s physician requested “…a larger office room, preferably with a window, and an adjacent bathroom, if possible, a door with a window or viewing port. If a panic button is possible, that should be provided as well.” Complainant later submitted paperwork to the Reasonable Accommodation Coordinator (RAC) on July 7, 2015. On July 10, 2015, S1 offered Complainant an available office with an operational panic alarm and a door with a window, but no bathroom. S1 indicated that there was a bathroom down the hall. 0120180573 3 Complainant rejected the offered accommodation and requested an office occupied by another employee. Agency management began the process of moving around employees to accommodate Complainant, which included consulting with Human Resources and the Union. Due to extended episodes of anxiety and stress, Complainant took leave from work on August 3, 2015, due to stress. In mid-August 2015, while she was absent, her reasonable accommodation request had been approved. She stated that she was not made aware of the approval until September 14, 2015. IR 166. Complainant stated that she returned to work on September 30, 2015 on the basis of representations made to her that her accommodation had been provided. Once she had returned, however, she discovered that the office she had been given had neither a window nor an attached bathroom. She went back on leave again and did not return until October 13, 2015. She averred that she was not given an office that complied with her reasonable accommodation request until November 10, 2015. IR 165-67, 169. S1 averred that he received the initial draft of Complainant’s reasonable accommodation request on July 7, 2015 and approved it on August 5, 2015, and that Complainant signed the approval form on September 24, 2015, while she was on leave, and returned the document by fax. He stated that Complainant had ultimately received the accommodation she had requested and had utilized it beginning when she returned to work on November 15, 2015. IR 181-85. The TL, the DM, and the RAC all corroborated that Complainant’s accommodation request had been granted in September 2015. IR 197, 205, 210, 231-33, 237, 239-40, 256, 277, 281, 283. Disclosure of Confidential Medical Information Complainant asserted that management officials had told her coworkers that she needed the window as a reasonable accommodation. IR 167. Complainant averred that her officemate (CW1) told her that S1 had queried CW1 about her disability and need for an accommodation during a meeting that CW1 had requested concerning her job. Complainant also averred that two men from the facilities management office had asked another coworker (CW2) who she was and explained that S1 had called them to put “RA” on her office door. In addition, Complainant stated that a former coworker (CW3) had told her that CW1 had shared with CW3 that S1 had asked CW1 if Complainant was faking her reasonable accommodation request. Further, Complainant stated that TL “aggressively and unprofessionally” interrogated her about a medical procedure she needed that was related to her disabilities during a staff meeting on December 21, 2015. IR 171, 232. S1 denied having conversations with anyone regarding Complainant’s disability and need for a reasonable accommodation. He averred that Complainant did inform TL of her need for a reasonable accommodation via email dated July 13, 2015. He denied having knowledge of any conversation between facilities management personnel and CW1 or the conversation that had taken place in the presence of CW2. He noted that the RAC suggested that he put “reasonable accommodation” on the work order to ensure that Complainant’s request got a higher priority. IR 186-87. TL similarly denied asking anyone about Complainant’s medical condition or need for an accommodation. 0120180573 4 As to the staff meeting incident, TL denied having any sort of outburst and stated that Complainant had indicated to him in an email that she would not be able to run clinical meetings the following week, and that he attempted to find coverage. He also denied that he had ever asked anyone whether he thought Complainant was faking. IR 197-98. The DM also denied questioning anyone about Complainant’s disability, except to discuss the matter with S1 in order to confirm Complainant’s need for an accommodation. The DM did note, however, that in connection with the December 21, 2015 meeting, that while the TL did not discuss Complainant’s medical information, he did make Complainant uncomfortable enough that he, the DM felt it best to remove the TL from providing Complainant with clinical supervision. IR 206. Attendance and Leave Complainant averred that in a duty status letter from S1 that was dated September 3, 2015, S1 had threatened to charge her as being AWOL while she was on official leave. IR 168, 172-73. Paragraph (6) of the letter states: “Please understand that if you do not provide acceptable medical documentation in support of your continued absence and appropriately request approved leave status by September 28, 2015, you may be charged AWOL; AWOL charges may result in disciplinary action.” IR 266. S1 and the DM averred that he was merely advising Complainant regarding the Agency’s duty status policy in order to ensure that Complainant was not charged with being AWOL, and that they consulted with the human resources office before issuing the letter. IR 187-88, 191, 210-11, 242, 265-66, 273. Complainant also averred that S1 held her to a policy that did not exist when he told her to call into the office before her 5:00 a.m. shift began, and that she complied with this order from September 14 through September 30, 2015. She stated that she stopped doing so after her sleep patterns had been disrupted and she became ill, calling in on Monday mornings thereafter. IR 168, 174-75. S1 responded that he was merely requiring Complainant to comply with the Agency’s leave and attendance policy as referenced in the September 3, 2015 duty status letter, noting that Complainant had not yet provided the appropriate medical certificate that authorized extended leave and acknowledging that Complainant had no issues with tardiness. He also averred that Complainant was not required to call in at 5:00 AM. IR 189-90. ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to issue a decision without a hearing when she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 0120180573 5 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Hostile Work Environment To merit a hearing on her claim of discriminatory or retaliatory harassment, Complainant must raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of her employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also raise a genuine issue of material fact as to whether the alleged was motivated by unlawful considerations of her disability or previous EEO activity. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory or retaliatory harassment be brought before an AJ for a hearing. Here, Complainant asserted that based on her disability and prior EEO activity, which consisted of requesting the reasonable accommodation at issue in this complaint, S1 and TL subjected her to a hostile work environment. Complainant identified four incidents of what she characterized as discriminatory and retaliatory harassment. Construing the evidence in the light most favorable to Complainant, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to raise a genuine issue of material fact as to the existence of a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the evidence in the record raises no genuine issue of material fact as to whether discriminatory or retaliatory animus played a role in any of the actions by S1 or TL. 0120180573 6 The record reflects that the incidents alleged to be discriminatory were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As to the alleged AWOL charge for example, the record conclusively establishes that the duty status letter was nothing more than a recitation of existing Agency policy regarding leave documentation. Paragraph (6) of the letter did nothing more than inform Complainant of possible consequences of not providing sufficient medical documentation to support extended absences from work. As to the call-in requirement, Complainant failed to show that she was required to call into her office at 5:00 a.m. She was merely required to check in as soon as possible, but no later than two hours after the start of her shift. The Commission therefore finds, based upon the totality of the circumstances, that Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to whether she was subjected to a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not raised a genuine issue of material fact as to whether S1's and TL’s explanations for their actions were a pretext for discrimination or reprisal. Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In this case, the record reveals that the Agency engaged in the interactive process without delay upon Complainant’s request for accommodation. The Agency underwent a move in May 2015, and Complainant requested a larger office with a window, bathroom, and panic button in July 2015 as an accommodation. The Agency engaged in the interactive process to determine what accommodations were needed and could be provided. Complainant rejected the Agency’s initial accommodation offer as ineffective as the office did not have a bathroom. Nonetheless, the Agency continued reviewing potential offices that would suit Complainant’s request. Complainant identified an office occupied by another employee that would accommodate her condition but went out on extended leave soon thereafter. When Complainant returned, she was placed in the office she requested. Complainant subsequently requested and was granted a window in the door to her new office. What Complainant characterized as a denial of her reasonable accommodation request merely turned out to be a delay based on a number of factors that occurred during the interactive process including Complainant’s submission of appropriate medical documentation; assessments of available and suitable offices; complications associated with moving employees to other offices; and Complainant’s extended leave and eventual return to work. Complainant herself acknowledged that her accommodation had been provided. IR 165. 0120180573 7 Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Unauthorized Disclosure of Medical Information The Rehabilitation Act specifically prohibits the disclosure of medical information except in certain limited situations. Velva B., et. al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006/07 (Sept. 25, 2017), req. for recon. den. EEOC Request Nos. 0420180094/95 (March 9, 2018), citing Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 42 (Oct. 17, 2002). Complainant has not presented any documentary or testimonial evidence tending to show that S1, the TL, the DM or any other management official had divulged or otherwise made public any confidential medical information pertaining to her. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 0120180573 8 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 April 30, 2019 Date Copy with citationCopy as parenthetical citation