[Redacted], Edith L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 15, 2023Appeal No. 2022001999 (E.E.O.C. Feb. 15, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edith L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001999 Hearing No. 470-2020-00144X Agency No. 200J-0583-2019104155 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 7, 2022, final decision 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. 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 an Advanced Medical Support Assistant, GS-0303-06, at the Agency’s Richard L. Roudebush VA Medical Center in Indianapolis, Indiana. On September 24, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (Multiple Sclerosis, Optic-Neuritis, Sensorineural Hearing Loss, loss of mobility), age (59), and in reprisal for prior protected EEO activity when: 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. 2022001999 2 1. On or about July 11, 2019, Complainant’s reasonable accommodation documents were left unsecured; 2. On July 16, 2019, Complainant’s program access was temporarily shut down; 3. On or about August 6, 2019, Complainant’s reasonable accommodations were mocked; 4. On August 8, 2019, Complainant was excluded from meetings; 5. since July 2016, and as recently as July 22, 2019, Complainant’s reasonable accommodation requests have been delayed, denied, or been insufficient; 6. on January 18, 2019, Complainant was not selected for the position of Program Assistant (CBCX-10379773-19-RDJ); 7. on May 6, 2019, Complainant was not referred for the position of Program Analyst (CBCX-10474361-18-SS); 8. on May 6, 2019, Complainant was not referred for the position of Program Analyst (CBCX-10483576-19-RDJ); 9. on or about July 10, 2019, Complainant was given new performance standards; and 10. on August 5, 2019, Complainant was assigned as Home Oxygen Clinic Scheduler.2 The instant complaint generally arose out of Complainant’s attempts to obtain accommodation for her conditions, which are specifically alleged in Claim (5). In her affidavit, Complainant asserted that she has: asked for Zoomtext software (2016*, 2018, 2019), technical support/programming that would allow ZoomText software to work with other [Agency] programs (2016, 2017, 2018, 2019), administrative keys that would allow me to schedule more easily (2016, 2019*), a handicapped parking space (2016-2018), technology so I could work in a less noisy/another office as requested (2017*) (doing scheduling), caption phone (2019*), a move to quieter office (2019*), Roger Easy Pen/Receiver (2020), Jabra headset 2020, etc. According to Complainant, the asterisks denote the year in which that accommodation was approved. With respect to ZoomText, Complainant argued that a Supervisor in the Office of Information Technology (OIT) and the Chief Financial Officer were responsible for delaying her accommodations. The record contains email correspondence between the Agency’s Reasonable Accommodation Coordinator (RAC), the IT Supervisor, the Chief Financial Officer (CFO), and eventually the Supervisor of OIT Reasonable Accommodation occurring between November 18, 2019, and January 28, 2020. The emails began when Complainant noted that her trial version of ZoomText was expiring. 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter on appeal and the Commission can find no basis to disturb the dismissal decision. 2022001999 3 On November 19, 2019, the Agency was able to extend the trial version for an additional 660 days. The emails reflect uncertainty over which department would incur the fiscal obligation and which department would make the actual purchase for ZoomText after the Computer/Electronic Accommodations Program (CAP) indicated it would not have sufficient funds to fill the accommodation until the next fiscal year.3 After a month of correspondence, the Supervisor, OIT Reasonable Accommodation concluded that Complainant’s department could both make the software purchase and incur the fiscal obligation. Complainant added testimony that the Agency did not give her Oticon ConnectClips so that she could use her hearing aids with a BlueTooth caption phone. As a result, Complainant had to return the hearing aids to the manufacturer. Further, Complainant claimed that the Agency “refused to provide acoustic wall panels or move my desk so I could see my co-workers.” Complainant explained that she needed ZoomText because she has low vision. She needed the captioned telephone, Oticon ConnectClips, Roger pen, and T-coil headset because she has a hearing loss, and she wanted to move to a quieter office as well. Complainant also requested a handicapped parking space due to mobility issues and that she needed to use a cane and walker. With respect to the handicapped parking space, the record reflects that Complainant and RAC exchanged emails discussing her need for a handicapped parking tag in April 2017. Complainant noted that she provided medical documentation over a year earlier, but RAC explained that the medical documentation did not address the need for onsite parking. Complainant ultimately received permission on April 17, 2017, to have a handicapped parking tag. RAC explained that Complainant was given a handicapped parking tag once she provided medical documentation in support. RAC confirmed that she explored alternative routes to funding the ZoomText software once CAP said they had no funding. RAC noted Complainant’s request to transfer, but said that Complainant provided no justification other than that she was unhappy in her position. To the extent Complainant did not receive an accommodation, RAC said she either did not provide medical documentation supporting the need or received an alternative accommodation. Complainant confirmed Claim (1) as written, without further explanation. Complainant’s immediate supervisor (S1) testified that the document was at the printer for no more than two or three minutes, and that the printer was located in a secure mailroom accessible only by a keycode. S1 noted that the document did not identify any medical information. In Claim (2), Complainant asserted that she was never given an adequate explanation for why her program access was temporarily shut down. As a result of the shutdown, Complainant could no longer enter specific times, but must scroll through a lengthy list. 3 The CFO maintained that Complainant’s department did not have authorization to purchase software; the Supervisor in OIT said that OIT did not have the funding authorization to purchase ZoomText. 2022001999 4 S1 explained that there were several incidents in which the scheduling software was shut down, and it affected multiple employees, not just Complainant. Regarding Claim (3), Complainant said that RAC mocked her when she made fun of the fact that Complainant would not be able to see her coworkers as a result of acoustical barriers being placed around her desk. According to Complainant, RAC suggested that they pass sticky notes and laughed. RAC denied the allegation, but noted that the acoustic panels had been successfully used in other areas of the hospital. RAC also said that the Agency installed acoustic barriers in Complainant’s office. The record makes clear that the barriers made it difficult for Complainant to see her co-workers. Complainant clarified Claim (4) and explained that she was referring to meetings between Human Resources and Interior Design, without Complainant’s involvement. These meetings were intended to address her reasonable accommodation requests. In Claims (6) through (8), Complainant argued that she applied for the positions through the Schedule A hiring authority, but was never interviewed or referred for selection. The CFO was the hiring official, and Complainant asserts that the CFO was aware of her disability and refused to hire her as a result. Several Human Resources officials provided testimony for the non-selection claims. One official said that the Agency declined to use special hiring authorities for Claim (6) and instead made a decision off the internal announcement. Another official responded for Claims (7) and (8) and noted that Complainant did not have the sufficient time in grade to be eligible for either position. In Claim (9), Complainant said she was never given an explanation why she was given new performance standards in July 2019. Complainant also does not explain how she was harmed by this event. Complainant claimed, in Claim (10), that she was told that the Agency had a national mandate to limit the number of employees with access to its scheduling software. As a result, Complainant would also need to perform Home Oxygen Clinic scheduling duties. After Complainant received assistance from the union, these duties were assigned to another employee and Complainant was assigned scheduling duties for the Pulmonary Case Managers, which was a smaller duty than the Home Oxygen Clinic. Complainant contended that she is often expected to do more work than her coworkers. S1 explained that the reassignments were made prematurely, and without discussion with any employee. After the meeting with the union, Complainant ultimately was not assigned the Home Oxygen Clinic. 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). 2022001999 5 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). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. More specifically, the Agency concluded that it did not improperly disclose Complainant’s confidential medical information since the document contained only general information. With respect to Complainant’s reasonable accommodation requests, the Agency concluded that Complainant received the paid version of ZoomText 11 days after her free trial expired, which was a de minimis delay. Further, management officials showed that Complainant was accommodated once she provided sufficient medical documentation or explained why Complainant was provided alternative accommodations. The Agency noted that Complainant is not necessarily entitled to her accommodation of choice, but to effective accommodations. Turning to Complainant’s non-selection claims, the Agency found that the explanations articulated by the selecting official in Claim (6) and the human resources officials in Claims (7) and (8) were legitimate and non-discriminatory. The Agency also accepted the Agency’s explanations for Complainant’s performance standards and Complainant’s scheduling obligations. Complainant failed to show that these reasons were pretextual. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she has experienced discrimination, retaliation, and a hostile work environment by the Agency. Complainant argues that the final decision is not consistent with prior explanations from Agency officials. Complainant claims that she continues to struggle to receive reasonable accommodations. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). 2022001999 6 Disclosure of Confidential Medical Information - Claim (1) The Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to confidential medical information concerning “any employee,” and is not limited to individuals with disabilities. Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (April 13, 2000). Here, the evidence does not establish that an improper disclosure by management ever occurred. S1 confirmed a document related to Complainant’s reasonable accommodation request was briefly left by the printer after she printed it out for her records, but it was not left unsecure. She stated that the printer was located roughly 10 feet away from her office in a secure location. S1 noted that the form did not contain any medical information. We therefore find that under the circumstances present, there is insufficient evidence demonstrating that the Agency improperly handled or disclosed Complainant’s confidential medical information in violation of the Rehabilitation Act. Denial of Reasonable Accommodation - Claim (5) An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (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 of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is a qualified individual with a disability. In this case, Complainant does not show that the Agency failed to accommodate her. The evidence in the record indicates that the Agency engaged in good faith in the interactive process and granted Complainant several accommodations and alternative accommodations. The record demonstrates extensive discussion within the Agency on the best way to accommodate Complainant’s needs and ultimately, the Agency offered accommodations that Complainant accepted or alternative accommodations that fit Complainant’s needs. With respect to ZoomText, the record makes clear that the Agency engaged in efforts to purchase ZoomText, including an extension of the free trial, and that Complainant was without the software for only 11 days. Regarding the parking pass, the Agency made clear to Complainant that she had provided insufficient medical documentation that warranted a handicapped parking tag.4 When Complainant provided sufficient documentation, she received the tag. 4 The Agency would have accepted certification from the state department of motor vehicles, but it appears Complainant did not furnish that documentation either. 2022001999 7 By Complainant’s own testimony, she received substantially all the accommodations she requested with the exception of Oticon ConnectClips and additional technical support/programming. Complainant has not shown that the provided accommodations were ineffective. We address Complainant’s request that the Agency purchase Oticon ConnectClips. A fair reading of the record indicate that the Clips were intended to connect the captioned telephone with Complainant’s personal hearing aids. We do not think this is an accommodation the Agency was obligated to provide. In 29 C.F.R. pt. 1630 app. § 1630.9, we note that employers are not required to provide a modification or adjustment that assists an individual throughout his or her daily activities. For example, an employer is generally not required to “provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses.” However, an employer may be required to provide such items as a reasonable accommodation “where such items are specifically designed or required to meet job-related rather than personal needs. An employer, for example, may have to provide an individual with a disabling visual impairment with eyeglasses specifically designed to enable the individual to use the office computer monitors, but that are not otherwise needed by the individual outside of the office.” In this case, Complainant was asking that the Agency accommodate her by purchasing Oticon ConnectClips, an item designed to make her particular brand of hearing aids compatible with Bluetooth devices, not the other way around. Based on our regulations, this is not an obligation that ought to be borne by the Agency. Based on the foregoing, we do not find that the Agency failed to accommodate Complainant in violation of the Rehabilitation Act. Disparate Treatment - Claims (2), (6)-(10) 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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions as further detailed above. For example, S1 explained that multiple people lost program access temporarily, not just Complainant. 2022001999 8 The hiring official for Claim (6) explained that he declined to use the Schedule A hiring authority and selected from the internal announcement, which was within his right to do so. Complainant also did not have the time in grade necessary to be eligible for the positions in Claims (7) and (8). Further, Complainant was given new performance standards in line with all other medical support assistants. Additionally, Agency management was reducing the number of employees who performed scheduling duties, but ultimately Complainant did not take on Home Oxygen Clinic duties. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Here, Complainant does not carry her burden. Complainant offers no evidence that the Agency’s explanations are false or unworthy of belief. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To prevail on a claim of discriminatory harassment, Complainant would have to show that: (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 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 prove her harassment claim, Complainant must establish that 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 prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. 2022001999 9 Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. Specifically, regarding Claim (3), RAC denied mocking Complainant’s reasonable accommodation requests. The record contains no corroborating evidence demonstrating that RAC made the alleged comments. Further, as to her claim that RAC excluded her from meetings, RAC explained that she met once with Interior Design at Complainant’s office to look at the space. RAC added that Complainant was present but did not come into the office and instead stood about 20 feet from the entrance. The next meeting between them all occurred when Interior Design installed the panels. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, 2022001999 10 or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a 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). 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. 2022001999 11 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 February 15, 2023 Date Copy with citationCopy as parenthetical citation