[Redacted], Gwen O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2022000155 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gwen O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000155 Hearing No. 410-2018-00025X Agency No. 200I-0534-2017100415 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 27, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a Clinical Pharmacist (Hematology/Oncology Pharmacy Specialist), GS-13, at the Agency’s Ralph H. Johnson VA Medical Center in Charleston, South Carolina. On October 29, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discrimination based on disability (narcolepsy with cataplexy) 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. 2022000155 2 1. Since October 2015, and continuing to the present, Complainant’s second-level supervisor (S2), Pharmacy Chief, has denied Complainant’s reasonable accommodation requests for telework; 2. In October 2015 and in January 2016, Complainant’s coworker, Registered Nurse (RN), asked Complainant several times if she really needed to have the overhead lights on; 3. In November/December 2015, Complainant was instructed on several occasions to email or call S2 and the timekeeper upon her arrival to work; 4. Around December 2015/January 2016, Complainant’s first-level supervisor (S1), Inpatient Pharmacy Supervisor/Associate Chief, made a sarcastic remark to Complainant about how she would like to sit in the sun all day long during a discussion about how natural light improves Complainant’s work efficiency; 5. From January 2016 through April 2016, S2 and S1 failed to provide Complainant with training and onboarding for an Oral Chemotherapy Monitoring program; 6. Since late April/early May 2016, Complainant was not provided the opportunity for performance improvement through mentoring, counseling, and/or progressive levels of discipline; 7. In May 2016 and previously, S1 and S2 subjected Complainant to multiple unwarranted investigations; 8. In 2016, S2 made a sarcastic comment about not sleeping well the night before after being advised that Complainant was being treated for a sleep disorder (actual date not provided); 9. On May 3, 2016, S2 advised Complainant that if she requested an extended lunch period as an accommodation her request would not be granted;2 10. On May 6, 2016, Complainant was placed on a Performance Improvement Plan (PIP); 11. On May 19, 2016, Complainant was detailed to an Outpatient Processing Pharmacist position; 12. On September 14, 2016, Complainant was issued a proposed removal notice that was rescinded on September 29, 2016; 13. On October 31, 2016, Complainant was issued a Performance Plan for Fiscal Year (FY) 2017 reflecting the Outpatient Processing Pharmacist (GS-12) duties, instead of her regular duties as a GS-13 Clinical Pharmacy Specialist; 14. On November 1, 2016, Complainant’s detail assignment was extended for an additional 90 days; and 15. On November 1, 2016, S1 delayed the issuance of Complainant’s performance evaluation for FY16. 2 During the hearing, Complainant explained that this claim was misstated. She testified that S2 did not deny Complainant a 30-minute lunch extension as an accommodation but that S2 said if “anyone else asked” for an extended lunch, S2 would not grant it. We will therefore analyze claim 9 as Complainant defined it at the hearing. 2022000155 3 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 EEOC Administrative Judge (AJ). Complainant requested a hearing, and the AJ held a hearing on July 20-23, 2020, and on January 19-21, 2021, and issued a decision in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant appeal. Regarding claim 1, the AJ found that Complainant was an individual with a disability and that she was qualified to perform her position with or without a reasonable accommodation. However, the AJ found that Complainant could not show the Agency had failed to accommodate her. Complainant’s condition involves sleep attacks (involuntary periods when she falls asleep during normal activities), sleep paralysis, sleep terrors, and sleeping through her alarm clock. Her condition can result in lack of sleep that can impact focus and concentration. Complainant’s physician testified that Complainant also had generalized anxiety and nocturnal panic attacks associated with her condition. Aside from Complainant’s request for telework, based on her reasonable accommodation requests and supporting medical documentation, the Agency approved the following: sit/stand desk, anti-fatigue mat, sun lamp, a nap location, 30 minutes of extra time added to her lunch, a change in the start of her duty hours, allowing flexible hours in arriving to work, granting a flex tour, space heater, noise-cancelling headphones, and use of sick leave or leave under the Family and Medical Leave Act for when she arrived later than her flexible hours, had to leave work early, or missed days due to her disability. Regarding Complainant’s request for telework, the AJ found that, based on Complainant’s testimony and that of the Agency’s Local Reasonable Accommodation Coordinator (LRAC), Complainant did not provide medical documentation supporting her request for telework showing it was necessary to perform the essential functions of her position. The AJ further found that, after LRAC discussed the issue of telework with S1 and S2, the Agency determined that the essential functions of the Hematology/Oncology Clinical Pharmacy Specialist position were not compatible with telework. The AJ also concluded that Complainant did not present sufficient evidence to contradict the record or LRAC’s credible testimony that the accommodations the Agency provided her were effective. In addition to telework, Complainant testified that she requested reassignment verbally as a reasonable accommodation, while S2 testified that there was no discussion about reassignment. The AJ found S2’s testimony more credible, especially because the record did not reflect that Complainant had requested reassignment or that it was discussed during the interactive process. The AJ emphasized that Complainant’s affidavit consistently expressed a desire to remain in her Hematology/Oncology Pharmacy Specialist position and not to be reassigned. Complainant testified she could not recall submitting medical documentation in support of her request for reassignment as an accommodation, and LRAC testified he did not receive such medical documentation. The AJ therefore found LRAC and S2’s testimony credible that Complainant desired to remain in her position as opposed to reassignment. 2022000155 4 Regarding claim 3, the AJ found that because of Complainant’s granted accommodation of a flexible arrival time, her arrival time could vary each day. Therefore, as part of the implementation of her reasonable accommodations, Complainant was required to notify S2 or the timekeeper of her arrival time to ensure timekeeping accuracy. Regarding claims 2, 4, 8, and 9, which all involve comments allegedly made to Complainant, the AJ found that, even if they occurred as alleged, the comments did not rise to the level of severe or pervasive conduct. As to RN’s question to Complainant about her use of overhead lights in claim 2, both Complainant and RN testified that RN’s question was related to RN’s concerns about her own medical condition that made her sensitive to light. The AJ found that, because Complainant used the overhead lights to accommodate her narcolepsy, the question from RN represented a disagreement with a coworker. The AJ found that the comments made by S1 and S2, respectively, in claims 4 and 8 were made during the interactive discussions about Complainant’s reasonable accommodations. The AJ found that, as to claim 9, S2 was confirming that Complainant’s extended lunch period was permitted as a reasonable accommodation only. Therefore, the AJ found that the remarks as alleged in these claims were “not the jokes, insults, ridicule, mockery, or denigrating or insulting conduct” that would constitute a hostile work environment. Regarding claim 5, S1 did not provide Complainant with training for launching the Oral Chemotherapy Monitoring Program. The AJ found that S1 was credible when she testified that she believed Complainant already had the substantive knowledge and experience to launch the program, as she was a board-certified Hematology/Oncology Clinical Pharmacy Specialist, even though Complainant felt she needed administrative training to do so. S1 also testified that Complainant never stated she needed extra material, resources, or training to start the program. Regarding claims 6, 7, and 10 - 15, the AJ found that these incidents all related to management’s actions taken in response to issues they had with Complainant’s performance and conduct. The AJ found that Complainant was put on a PIP and given a Notice of Opportunity to Demonstrate Acceptable Performance in April 2016, which identified performance issues in the elements of Clinical Services/Patient Care and Efficiencies as a result of Complainant not completing certain tasks or providing information to S1 that she requested. As to Complainant’s claim that she was not provided with the opportunity for performance improvement, the AJ found that S1 provided Complainant with opportunities to improve her performance over the course of several months leading up to the PIP. This included a meeting with Complainant in February 2016, about her performance, as well as subsequent meetings the following month, emails to Complainant in March 2016 about performance tasks and following up on their meetings, and written counseling before issuing the PIP. In May 2016, S1 and S2 discovered that over a period of several months between January and May 2016, Complainant had several instances of delays in patients receiving their medications and had failed to return phone calls to patients and providers. As a result, management conducted a fact-finding in May 2016, at which point the PIP was put into abeyance pending the investigation. 2022000155 5 That same month, S2 decided to temporarily assign Complainant to a detail pending the investigation. The detail was for an Outpatient Processing Pharmacist position, GS-12,3 where Complainant reported to a different supervisor. Because she was on detail in October 2016, at the start of the new fiscal year, S1 issued Complainant a FY17 performance plan reflecting the Outpatient Processing Pharmacist duties, based on guidance she received from Human Resources. On November 1, 2016, management extended Complainant’s detail for 90 days based on the results of the fact-finding investigation.4 S1 delayed issuing Complainant her FY16 performance evaluation so that she could rate Complainant on the new performance plan for the detailed position. On September 14, 2016, based on the fact-finding, S2 issued a proposed removal to Complainant containing three charges. The first charge was “Delay in patient care,” listing four instances where Complainant’s conduct led to patients missing their medications. The second charge was “Failure to timely respond to phone calls and/or other contacts,” specifying one instance where Complainant failed to call a patient back about his medication after the patient left a message and another instance where a specialty pharmacy repeatedly called Complainant, but she did not respond. The third charge was for “Failure to timely perform duties,” which specified four instances, including Complainant not reviewing a chemotherapy plan and her failure to fill/refill prescriptions. Complainant testified that her disability caused her to miss days from work, which impacted patient care, but she also attributed the charges to issues with the fax machine, some prescriptions getting lost due to a new process, and other pharmacists causing delays when covering for her while she was out of the office. She also testified that she failed to return calls because she had not set up her voicemail on a new voicemail system, as she believed she was not required to. The proposed removal was withdrawn the same month.5 The AJ determined that Complainant’s absences due to her medical conditions were not the root cause of the delays at issue, as Complainant’s absences did not cover the entire period during which Complainant had instances of delays and failures to communicate. The AJ also noted that in her original response to the fact-finding investigation, Complainant listed reasons other than her disability for why the delays or mistakes occurred. Therefore, the AJ found that the Agency’s legitimate, nondiscriminatory reasons for the fact- finding were Complainant’s delays in patient care, failure to return calls, and failure to complete tasks, which were not attributable to her medical conditions. In turn, the AJ concluded the incidents that followed the fact-finding-the proposed removal, being placed on detail, the extension of her detail, the performance plan for the GS-12 position, and the delay of her performance evaluation-were based on the fact-finding and the result of Complainant’s errors and management of her workload, not discriminatory or retaliatory animus. 3 Although Complainant was detailed to a GS-12 position, she retained her GS-13 pay. 4 We note that although claim 7 as defined alleges multiple investigations, the AJ found that Complainant was subjected only to the one fact-finding investigation in May 2016. 5 The record indicates that Agency attorneys recommended the rescission of the proposed removal in order to edit some of the wording in the proposed removal. 2022000155 6 The AJ concluded that Complainant failed to show that the Agency’s explanation was pretext for discrimination or reprisal. The AJ also determined that the other pharmacists Complainant identified as experiencing delays who were not disciplined were not similarly situated, as they occupied different positions and had fewer instances of delays in care. As to Complainant’s claim of harassment, the AJ found that Complainant could not show that the actions were taken because of her protected bases or that they were so severe or pervasive as to alter the terms and conditions of her employment. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Regarding her request for reasonable accommodation (claim 1), we will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. After a review of the record, we find Complainant has not established she was denied a reasonable accommodation when the Agency denied her request for telework. On appeal, Complainant does not show that she was denied an accommodation for which she has shown or provided sufficient medical documentation as necessary for her duties. Moreover, substantial evidence supports the AJ’s finding that the Agency’s offered accommodations were effective and that telework was not possible for Complainant’s position (essential functions could not be performed via telework). Substantial evidence also supports the AJ’s conclusion that Complainant did not request reassignment as a reasonable accommodation during the interactive process. Substantial evidence supports the AJ’s conclusion that the offered accommodations were effective. Accordingly, we agree with the AJ that the Agency provided Complainant with an effective reasonable accommodation despite the fact it was not the full accommodation she had requested. Thus, we find that Complainant has failed to show she was denied a reasonable accommodation. As for Complainant’s claims of disparate treatment (claims 5, 6, 7, and 10 - 15), after a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for its actions were a mere pretext for discrimination or retaliation. In addition, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. 2022000155 7 Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claims 1, 5, 6, 7, 10-15. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We also find that Complainant’s requirement to report her arrival time (claim 3) and the remarks made by RN, S1, or S2 (claims 2, 4, 8, and 9) were not sufficiently severe or pervasive to create a hostile work environment. On appeal, Complainant argues that the AJ committed “reversible error” by denying Complainant’s motion to strike as a witness the supervisor Complainant reported to during her detail, and that as a result she could not “present[ ] her case in full.” However, she does not specify why the AJ erred in denying the motion, how it would have affected the outcome, or why this prevented her from presenting her own case. Complainant also contends that the AJ allowed documents during the hearing that were not produced during discovery, but she does not identify these documents on appeal or otherwise argue why the admission of these documents prejudiced her. Our review of the record does not indicate that there is any procedural basis to disturb the AJ’s finding that the Agency did not discriminate against Complainant. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or retaliation by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the AJ’s decision finding no discrimination, which became the Agency’s final order. 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. 2022000155 8 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, 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. 2022000155 9 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 March 30, 2023 Date