Marjorie C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs Agency.

Equal Employment Opportunity Commission

Sep 30, 2020

2019002728 (E.E.O.C. Sep. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marjorie C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs Agency. Appeal No. 2019002728 Hearing No. 440-2018-00223X Agency No. 200J05372016104273 DECISION On March 4, 2019, 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 January 23, 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 a Medical Instrument Technician GS-8 at the Agency’s Department of Veterans Affairs facility in Chicago, IL. On July 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (physical) when: 1. On May 31, 2016, a Supervisor [S1] constantly surveilled Complainant, questioned why she was at work, and ordered her to a meeting; 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. 2019002728 2 2. On June 1, 2016, [S1] intimated and falsely insinuated that Complainant was being deceitful about the completion of TMS classes; 3. On June 8, 2016, while Complainant was in the Computer room, [S1] opened the door without knocking, saw her standing in the room and closed the door. [S1] contacted [a union official] and stated he was looking for the Complainant but could not find her; 4. On June 10, 2016 [S1] called Complainant’s cell phone while she was leaving work for the day and stated he needed to speak with her; 5. On June 13, 2016, [the Chief of Nursing Service], and [S1] denied the Complainant’s reasonable accommodation and sent her home; 6. On June 14, 2016 to October 28, 2016, [S1] marked Complainant’s time and attendance record as AWOL [absent without leave] although she was on LWOP [leave without pay]. 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. 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”). The record reflects that Complainant was injured while at work with the Agency. Complainant sought an accommodation. On April 28, 2016, Complainant’s medical provider referred Complainant for a Functional Capacity Evaluation. On June 3, 2016, Complainant was advised by the Agency that based on her medical restrictions, as determined by the Functional Capacity Evaluation, and Complainant’s inability to perform the functions of her regularly assigned position, she was being offered a permanent modified Medical Instrument Technician position, GS 8, step 5. 2019002728 3 The physical requirements of the modified position specified no pushing/pulling more than 5 pounds; no overhead/above shoulder lifting; no bending/kneeling; no standing longer than 4 hours; limited standing and walking with lifting not to exceed 14 pounds. These requirements were within Complainant’s medical restrictions. On June 10, 2016, Human Resources notified management that Complainant declined the job offer. Complainant was sent home. HR notified management and Complainant that the offer was still open and available to Complainant in the event she wished to reconsider. Claims 1-4 (Harassment) It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes or her prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, the allegedly harassing events involved routine supervision, instructions, and admonishments, which are “common workplace occurrences” that do not rise to the level of harassment in violation of the anti-discrimination statutes. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). In general, a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Even when considered together, Complainant's allegations are not so severe or pervasive that they constitute a viable claim of workplace harassment. Claim 5 (Denial of Reasonable Accommodation) Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an “individual with a disability,” as defined by 29 C.F.R. §1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. §1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the 2019002728 4 employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). 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. §§ 1630.2(o), (p). We find that Complainant has not proven that the Agency failed to accommodate her. Assuming that Complainant is a qualified individual with a disability, we find that the Agency provided a reasonable accommodation when, on June 3, 2016, it offered Complainant the position of Modified Medical Instrument Technician in the Hemodialysis Unit, Nursing Section. ROI at 376. Complainant argues that the position she was offered is not an effective accommodation because her medical restrictions include a 10-pound lifting limitation and the offered position had a 14 pound lifting restriction. Complainant is mistaken. The contemporaneous documentation shows that Complainant had a 14-pound lifting restriction. ROI at 377. We note that, while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (March 1, 1999). Accordingly, we find that Complainant did not establish that the Agency discriminated against her when it did not grant her requested accommodation. Claim 6 (Charged with Absence without Leave) We find that Complainant did not show that she was aggrieved when she was mistakenly charged with absence without leave (AWOL) for failing to properly submit a leave request. The record shows that Complainant’s time records were corrected to change the AWOL charge to Leave without Pay (LWOP) when it became clear that Complainant was requesting Family and Medical Leave Act (FMLA) leave. Incorrect AWOL entries in mid-2016 were corrected in September 2016. Report of Investigation at 156. Complainant does not contend that any discipline was imposed as a result of the mistaken entries. The Commission has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). As such, we find that Complainant has not shown that she was aggrieved when she was mistakenly and temporarily charged with AWOL and that she has not proven discrimination with respect to this claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2019002728 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019002728 6 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 September 30, 2020 Date