0120111410
05-13-2015
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111410
Hearing Nos. 410-2008-00423X and 410-2009-00372X
Agency Nos. 2001-0508-2009100509 and 2001-0508-2008101065
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 8, 2010, final order 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 order which fully implemented the Administrative Judge's (AJ) decision finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker, GS-11 at the Agency's VA Medical Center in Decatur, Georgia. On December 23, 2008, and January 30, 2008, Complainant filed formal complaints which were combined at the hearing stage alleging that the Agency discriminated against her on the bases of disability (severe asthma) and reprisal for prior protected EEO activity when: (1) on December 13, 2007, Complainant was notified that her request for a reasonable accommodation was denied; (2) on December 13, 2007, during a discussion with her supervisor regarding her performance appraisal, Complainant was singled out for deficient performance; (3) on December 18, 2007, Complainant was issued a written counseling memorandum for discourteous conduct; (4) on October 31, 2008, Complainant's request for annual leave for the week of December 29, 2008, to January 2, 2009, was denied: and (5) on November 25, 2008, Complainant received a performance appraisal ratings of Fully Successful rather than Outstanding.
Further, Complainant alleged that the Agency subjected her to a hostile work environment based on reprisal when: (1) on October 31, 2008, her request for annual leave for the week of December 29, 2008, to January 2, 2009, was denied; (2) on or about November 18. 2008, a supervisor called and harassed Complainant about not providing coverage for another social worker who was on leave; and (3) on or about November 25, 2008, Complainant received a performance appraisal rating of Fully Successful rather than Outstanding.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ) and a hearing was held on August 11, 2010, and August 18, 2010. The AJ found that Complainant failed to establish that she was denied a reasonable accommodation, or that she was subjected to discrimination, or harassment. The record reveals that Complainant was diagnosed with asthma in December 2007. Thereafter, Complainant requested an accommodation for her asthma in the form of an ionizer or nebulizer. Complainant's request was denied on December 13, 2007, because the items requested were portable devices, and because Complainant failed to provide the requested medical documentation to show that she was an individual with a disability. The Agency argued that even though it denied Complainant's request for accommodation it accommodated her by changing her work station twice and, sometime after May 2008, the Agency provided Complainant with a dehumidifier that was designed to help her asthma by removing the moisture from the air in the room.
Further, it was determined that with regard to claim 2, when on December 13, 2007, Complainant was singled out during a conversation with her supervisor for deficient performance with respect to her performance appraisal, the Agency maintained that the supervisor's comment was related to the problems Complainant had with interpersonal skills and behavioral problems in the workplace. Moreover, the Agency explained that regarding claim 3, Complainant being issued a written counseling memorandum for discourteous conduct on December 18, 2007, that this matter was due to her irate and unprofessional behavior at the December 13, 2007 meeting held to discuss her performance evaluation.
With regard to claim 4, during the hearing, the Agency indicated that Complainant's request for holiday leave was denied because her coverage person had already requested and been approved annual leave for the same time period. Finally, with respect to claim 5, Complainant's allegation that she was issued a Fully Successful performance rating instead of an outstanding rating - the Agency indicated that Complainant was rated Fully Successful rather than Outstanding because of her repeated errors and rude behavior with her coworkers.
The AJ determined that Complainant failed to show that she was discriminated against based on disability. The AJ found that Complainant established a prima facie case of reprisal as management was aware of her prior EEO activity, but that the Agency articulated legitimate, nondiscriminatory reasons, namely Complainant's history of problems, errors and conflicts in the workplace including but not limited to deficiencies in interpersonal skills and repeated conflicts with co-workers, for its actions and that Complainant failed to show that the reasons were pretext for discrimination.
The AJ also found that Complainant failed to show that she was subjected to harassment based on reprisal because the Agency articulated legitimate, nondiscriminatory reasons for its actions and because the actions involved were not severe or pervasive enough to establish a hostile work environment. The AJ found that Complainant failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination therefore the AJ found in favor of the Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ erred in finding that the Agency provided her a reasonable accommodation. Complainant explains that on or about February 14, 2007, she formally requested a reasonable accommodation for her asthma condition and chronic sinusitis using the form provided by the Agency. On September 21, 2007, the Agency received a copy of the diagnosis from Complainant's personal physician who requested that Complainant be moved to a different building. In the alternative, Complainant's personal physician stated that she should be provided "an air purifier and dehumidifier preferably with a HEPA filtration system and portable nebulizer" as well as an ionizer. The physician indicated that these three (3) items would help to alleviate Complainant's severe asthma condition. From February 2007, through May 2008, Complainant maintains the Agency made scant efforts to address her request for a reasonable accommodation.
Complainant's chief argument is that the Agency took an unreasonable amount of time to respond to her request and when it did respond it requested additional medical documentation. Complainant asserts that she followed the formal processes to notify the Agency of her disability in February 2007, and the Agency did not formally act on her request until May 2008, some fifteen (15) months after she filed the original disability form and also eight (8) months after she submitted medical documentation from her doctor. Complainant indicates that in May 2008, the Agency finally contacted her requesting more information about her disability. Complainant responded by asking the Agency to contact her attorney for the transfer of medical information. There is no record that the Agency contacted Complainant's attorney as requested. Instead, the Agency indicated that Complainant failed to provide medical documentation and denied her request for a reasonable accommodation.
Further Complainant maintains that at the hearing, no one could determine when the dehumidifier was provided to her and whether such dehumidifier was covered by the specifications of her personal physician. Complainant argues that the time delay in responding to her request for a reasonable accommodation was unacceptable under the ADA and does not meet the "interactive process" standard.1
In response, the Agency indicated that Complainant requested an accommodation in 2007, which was prior to the effective date of the ADAAA. Therefore, to be entitled to an accommodation as a matter of law, Complainant had to demonstrate that her disability impaired her performance of a major life activity. The Agency contends that Complainant submitted only a very short note from her physician in support of her request for accommodation which included what he believed that she needed. However, the physician did not opine that Complainant's work environment was causing her breathing problems, and most importantly, provided no information concerning the frequency, severity or anticipated duration of the Complainant's symptoms. The Agency asserts that even though Complainant did not establish that she was a qualified individual with a disability within the meaning of the applicable law at the time she requested accommodation, the Agency nevertheless provided her with several accommodations. The Agency contends that Complainant's office space was moved at least twice, her carpet was removed from her office, her office was cleaned and disinfected, and she was provided with a dehumidifier. Finally, the Agency maintains that even if Complainant had established that she was a qualified individual with a disability, the Agency was not obligated to provide a portable nebulizer, because it was a personal assistive device that could be used outside of the workplace. The Agency requests that the AJ's decision be affirmed.
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.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. We concur with the AJ that even if Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above and established that she was not denied a reasonable accommodation.
With respect to Complainant's arguments that the AJ erred in finding that she was not denied a reasonable accommodation, we agree that even if Complainant proved that she was an individual with a disability, the record shows that the Agency made several attempts at accommodating Complainant which included moving her office, cleaning her work area, and providing her with a dehumidifier. While it is clear that Complainant did not get the accommodation that she wanted, the Agency did attempt to act on her physician's suggestions even though she did not provide the additional medical documentation that the Agency requested.2 Further, we find substantial evidence to support the AJ's determination that Complainant failed to show that she was subjected to harassment as the incidents involved in this complaint were not severe or pervasive enough to establish a claim of harassment.
Notwithstanding, the Commission is concerned about the length of time that it took the Agency to respond to Complainant's request for reasonable accommodation. The Agency is strongly cautioned to act in a more expeditious manner in the future.
We AFFIRM the Agency's final order which fully implemented the AJ's finding of no discrimination, no harassment, and no denial of a reasonable accommodation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___5/13/15_______________
Date
1 We note that an agency's failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Liability depends upon a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id.
2 The Commission has held that if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to the requested accommodation. Hunter v. Social Security Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012). Accordingly, we conclude that Complainant failed to show that the Agency's action violated the Rehabilitation Act.
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0120111410
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111410