[Redacted], Janeen S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans’ Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 7, 2022

Appeal No. 2022000060 (E.E.O.C. Apr. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janeen S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans’ Health Administration), Agency. Appeal No. 2022000060 Hearing No. 440-2020-00104X Agency No. 200J-0578-2019100918 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 7, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Health Technician, GS-0640-06, within the Nursing Service at Edward Hines, Jr. Veterans’ Affairs Hospital in Hines, Illinois. Complainant experiences complications from both panic disorder and major depressive disorder recurrent and severe. Complainant stated that these conditions developed prior to January 2017 and are permanent. Complainant’s medical provider restricted her to staying home when flare ups occur, and she takes medications to treat her conditions. In June 2016, the Supervisory Medical Support Assistant became Complainant’s supervisor (S1- 1). In May 2017, Complainant began a new position and worked under a new supervisor (S1-2). 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. 2022000060 2 Around May 23, 2017, Complainant was in training when the trainer announced that Complainant needed to check her email and contact a congresswoman’s office. Complainant believed that S1-1 had directed this. S1-1 denied pulling Complainant from the training class or being aware of the incident. In June 2017, the Associate Chief received Reports of Contact from Complainant regarding incidents with S1-1 between March 2017 and May 2017. A fact-finding investigation was initiated into Complainant’s hostile work environment allegations. S1-1 denied any wrongdoing. S1-1 was subsequently promoted and moved to another facility. On August 8, 2017, the Assistant Chief of Patient Administration Services emailed S1-2 about a report she received regarding Complainant being in Admin Suite bathroom for over 40 minutes. The Assistant Chief asked S1-2 what Complainant’s assigned work area was and was Complainant authorized to be in the Admin Suite. S1-2 asked Complainant to respond to the Assistant Chief and Complainant explained the situation. Around August 30, 2017, Complainant submitted a request for 38 hours of advanced annual leave, 36 hours of advanced sick leave, and 240 hours of leave without pay (LWOP). In addition, Complainant submitted an agreement to pay indebtedness for the advanced leave. The Assistant Chief did not concur with Complainant’s request for 38 hours of advanced annual leave because it would cause an adverse impact to the facility’s coverage. In October 2017, Complainant was notified of a fact-finding Weingarten meeting regarding her leave conduct. In November 2017, the meeting was canceled. The record revealed that around July 17, 2017, Complainant submitted a Reasonable Accommodation request to telework. Complainant and the Associate Chief discussed Complainant working from home or working the night shift. Complainant’s position was not suitable for the evening shift and working from home did not allow Complainant to meet the core competencies of the position which involve interacting with patients who are registering for care. As a result, Complainant’s accommodation request for telework was denied. The Agency did perform a job search with Complainant to find a position that would meet her telework requirement. Complainant was subsequently reassigned in February 2018. On February 2, 2018, the Human Resources Specialist sent Complainant an email stating that she had contacted Occupational Health and no additional information was needed except for possibly some paperwork for her reassignment to begin. A few hours later, Complainant received an email from the Human Resources Assistant providing her additional information and mentioned that the Occupational Health would contact her for a physical examination. The HR Assistant apologized for any confusion. 2022000060 3 In July 2018, Complainant submitted a Family Medical Leave Act (FMLA) request to care for her son. In addition, in August 2018, Complainant submitted an FMLA request for her own medical condition. On October 1, 2018, the FMLA requests were approved for 480 hours from July 2, 2018 to July 2, 2019. On January 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of disability (mental). Complainant alleged that she was subjected to a hostile work environment as evidenced by the following incidents: (1)(a) in 2017, her supervisor (S1-1) removed her from a training class to embarrass her, threatened her verbally with Absent without Leave; (b) on May 8, 2017, S1 read an instant message Complainant sent to a co-worker; (c) on August 8, 2017, she was told she was out of her assigned work area; (d) on August 30, 2017, she was denied advanced leave and Leave without Pay; (e) on October 31, 2017, she was called into a Weingarten meeting; (f) on or around February 1, 2018, she was advised she had to take a physical; (g) in July 2018, the Acting Director, told her additional medical documentation was needed for her FMLA and to submit it directly to her; and (h) as of January 2019, she has received no response to the FMLA request. In addition, Complainant alleged that: (2) beginning in July 2017 and continuing to December 2018, her requested reasonable accommodation was denied. Initially, the Agency dismissed the complaint. In Krysten M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002133 (Aug. 22, 2019), the Commission reversed the Agency’s dismissal decision and remanded the matter for further processing. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ first determined that the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Complainant believed that she was treated unfairly and discriminated against by several management officials. The AJ concluded, however, that Complainant’s concerns involve dissatisfaction with management decisions and actions about work-related issues. There is no evidence of any denigrating or insulting verbal or physical conduct by management. The AJ noted that the Commission’s anti-discrimination statutes are not used as a general civility code, and only forbids behavior that is objectively offensive as to alter the conditions of employment. In this case, there is no objectively offensive verbal or physical behavior by any management official. Furthermore, even if the alleged incidents were sufficiently severe or pervasive, the AJ found that there was no evidence that any management official acted with discriminatory animus. As a result, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2022000060 4 The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2022000060 5 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. 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. 2022000060 6 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 7, 2022 Date