[Redacted], Keturah F., 1 Complainant,v.Denis McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 5, 2021

Appeal No. 2020003989 (E.E.O.C. Mar. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keturah F.,1 Complainant, v. Denis McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003989 Hearing No. 550-2018-00310X Agency Nos. 200J-0331-2017101533, 200J-0331-2018104880 DECISION On June 10, 2020, 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 May 12, 2020, final decision concerning an equal employment opportunity (EEO) complaints claiming 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. BACKGROUND During the period at issue, Complainant worked as a Veterans Service Representative (VSR), GS-10, at the Agency’s Regional Office in St. Louis, Missouri. Following the death of Complainant’s son, Complainant requested, and was granted, full-time telework as a reasonable accommodation, effective November 13, 2014. However, on April 6, 2016, Complainant was advised that she was not meeting production standards for her position. Complainant then requested reassignment to a lower graded position as a reasonable accommodation. In response, the Agency advised Complainant in August 2016, that reassignment was an accommodation of last resort and instead offered training. 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. 2020003989 2 Complainant was later transferred to another VSR team. Complainant continued, however, to request reassignment. Eighteen months after the Agency had denied her initial request, Complainant took leave pursuant to the Family and Medical Leave Act (FMLA). Complainant was off the job for one year. During this period, the Agency requested medical documentation. Complainant provided documentation which indicated that she needed a job which was not “stressful.” When the Agency failed to respond to Complainant’s continued reassignment request, Complainant applied for disability retirement, indicating that she was not able to perform the essential functions of her position. Thereafter, the Agency took steps to remove her. Complaint 1 Complainant filed Agency No. 200J-0331-2017101533 (Complaint 1) on March 15, 2017. Therein, Complainant claimed that the Agency discriminated against her based on sex (female), disability (post-traumatic stress disorder, depression, anxiety, panic attacks) and reprisal for prior EEO activity when, as of January 30, 2017, management failed to grant her request for a reasonable accommodation. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a final decision by the Agency without a hearing. Accordingly, the complaint file was forwarded to the Agency’s Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final agency decision based on the investigative record. On June 19, 2018, Complainant was issued a Notice of Proposed Termination due to medical inability to perform. In a letter dated July 2, 2018, Complainant was advised that the proposed termination would become effective July 8, 2018. Subsequently, on July 3, 2018, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) challenging the removal action. In support of the removal claim, Complainant raised the affirmative defense of disability discrimination, failure to provide a reasonable accommodation, disparate treatment based on sex, and reprisal for prior EEO activity. Complainant claimed that the Agency’s termination notice was due to the Agency’s failure to grant her request for reassignment as a reasonable accommodation. MSPB Initial Decision On September 26, 2018 and MSPB AJ issued an Initial Decision finding that Complainant failed to prove her allegations of unlawful discrimination, disability discrimination and failure to provide a reasonable accommodation. Complainant v. Department of Veterans Affairs, MSPB No. CH-0714-18-0457-I-1 (September 26, 2018). The MSPB AJ found that the Agency’s delay in acting on Complainant’s request for accommodation was “inexcusable.” The MSPB AJ nevertheless found that when Complainant informed the Agency that 100% telework was not an effective accommodation, the Agency engaged in the interactive process to determine Complainant’s limitations. 2020003989 3 The MSPB AJ found that the Agency requested medical documentation from Complainant outlining her limitations which, at first, she failed to provide. The MSPB AJ then found that when the Agency eventually learned Complainant was unable to perform the essential functions of her position, it began looking for vacant funded positions, but none were found. As a result, the MSPB AJ found that Complainant failed to demonstrate that she was denied a reasonable accommodation. The MSPB Initial Decision further found that Complainant did not demonstrate that similarly situated comparators were treated more favorably then Complainant with respect to her request for reassignment. The MSPB AJ determined also that the Agency took steps to remove Complainant because she was no longer able to perform the essential functions of her position with or without accommodation. On November 30, 2018 Complainant appealed the MSPB decision to the EEOC. Keturah F. v. Department of Veterans Affairs, Petition No. 2019001700 (June 4, 2019). Therein, EEOC concurred with the MSPB’s decision finding no discrimination. EEOC rejected Complainant’s argument that she was denied a reasonable accommodation when the Agency failed to reassign Complainant to a less stressful position. Specifically, EEOC found that medical documentation submitted by Complainant was “so restrictive as to prevent the Agency from either accommodating her in her VSR position or reassigning her to any other position because she could not perform the essential functions of her position or any vacant, funded position at the Agency.” Complaint 2 On August 27, 2018, before issuance of the MSPB decision in September 2018, Complainant filed a separate EEO complaint, identified as Agency No. 200J-0331-2018104880 (Complaint 2). Therein, Complainant claimed that the Agency discriminated against her based on sex (female), disability (post-traumatic stress disorder, depression, anxiety, panic attacks), and reprisal for prior EEO activity. Specifically, Complainant claimed that: • Since June 2017, management requested verifying medical documentation more than once, in connection with Complainant’s request for reassignment as a reasonable accommodation. • The Agency failed to update her on the status of her request for accommodation. • In August 2017, a management official sent Complainant screen shots of her time and attendance. • She was not properly trained before being issued a notice of proposed termination on June 19, 2018. • On August 15, 2018, Complainant’s medical records related to her request for leave pursuant to the Family and Medical Leave Act (FMLA) were improperly stored. 2020003989 4 By notice dated May 9, 2019, Complainant requested a hearing before an EEOC Administrative Judge (AJ) on Complaints 1 and 2. Complaints 1 and 2 were consolidated, docketed with an EEOC AJ and assigned EEOC Hearing No. 590-2018-00310X. Subsequently, however, Complainant withdrew her hearing request and requested an immediate final agency decision based on the investigative record. In its final decision dated May 12, 2020, the Agency found no discrimination. This appeal followed. 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”). Complaint 1 and Complaint 2 - Claims Previously Adjudicated The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. To be dismissed as the “same claim,” the present and prior complaints must have involved identical matters. It has long been established that “identical” does not mean “similar.” The Commission has consistently held that for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. USPS, EEOC Appeal No. 01955890 (Apr. 5, 1996), rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997). Upon review of the record concerning the allegations raised by Complainant in Complaint 1, we find that both the MSPB and the EEOC have adjudicated the accepted claim; namely whether Complainant was denied reasonable accommodation or subjected to discrimination when the Agency denied her request for reassignment to a less stressful position. We further find that EEOC and the MSPB adjudicated Complainant’s allegations in Complaint 2 that she was subjected to disparate treatment when, on June 19, 2018, she was issued a Notice of proposed termination and on July 2, 2018, when she was issued a Notice of termination. We find therefore that the instant reasonable accommodation claim, as well as Complainant’s claim that she was subjected to disparate treatment when the Agency issued her proposed and actual termination notices, are properly dismissed in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1). 2020003989 5 Remaining Claims Complaint 2 Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and that the victim in fact did perceive to be so.” Id. Regarding the incidents described by Complainant, that the Agency requested medical documentation, sent screen shots of her time and attendance and failed to update the status of her request for reassignment, we find that the record does not support Complainant’s contention that the Agency’s conduct was harassing. Moreover, Complainant has failed to demonstrate that the Agency’s alleged conduct was motivated by discriminatory animus toward Complainant’s protected classes. Additionally, we find that the actions complained of were not severe or pervasive to as to alter the conditions of Complainant’s employment with the Agency. Finally, with regard to Complainant's claim her confidential medical information was improperly stored, the Commission notes that the Americans with Disabilities Act of 1990 (ADA) requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. §§ 12112(d)(3)(B), 4(c); 29 C.F.R. § 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, EEOC No. 916.002. General principles section in Background discussion (July 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Valle v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). 2020003989 6 This is true even if the complainant does not have a disability. Young v. U.S. Postal Serv., EEOC Appeal No. 0120112626 (Oct. 3, 2011). We note that an exception to the confidentiality requirement exists when supervisors and managers need to be informed of necessary restrictions on the work duties of the employee or that an accommodation is necessary. In the instant matter, however, management officials provided affidavit testimony that in accordance with Agency policy, Complainant’s FMLA related paperwork was stored in a separate locked cabinet. Neither payroll or other Agency personnel could haphazardly access Complainant’s information. Other than her bare assertion, Complainant has failed to provide evidence demonstrating that the Agency committed a per se violation of the Rehabilitation Act as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision dismissing several claims, its finding of no discrimination on other claims, and its finding that it did not violate the medical confidentiality requirements of the Rehabilitation Act. 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 2020003989 7 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. The court has the sole discretion to grant or deny these types of requests. 2020003989 8 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 5, 2021 Date