0120130146
09-12-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130146
Agency No. 200105092011101560
DECISION
On October 9, 2012, Complainant filed an appeal from the Agency's September 26, 2012 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether the Agency's final decision (FAD) properly found that Complainant was not subjected to discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a WG-6 Cook at the Agency's Veterans Affairs Medical Center facility in Augusta, Georgia. The facts as clearly articulated in the final agency decision (FAD) are as follows: while employed as a cook, Complainant sustained a work related injury. Due to the physical restrictions resulting from this injury, management created a light duty position for Complainant in the Diet Communication Office. The position entailed entering data on a computer. On January 20, 2011, Complainant initiated contact with an EEO Counselor. On February 15, 2011, Complainant submitted a request for reasonable accommodation. On March 2, 2011, the Human Resources (HR) Specialist responded to her request for reasonable accommodation.
On April 7, 2011 the parties entered into an agreement settling her informal discrimination complaint whereby the Agency agreed, among other items, that the Department Chief would meet with Human Resources (HR) Management Service no later than May 18, 2011 to discuss a possible detail or reassignment for Complainant. On April 22, 2011, the HR Specialist advised Complainant that she was still holding her request for reasonable accommodation in abeyance pending receipt of her medical documentation. The HR Specialist also confirmed that Complainant was still interested in pursuing her reasonable accommodation request.
On May 26, 2011, Complainant claimed that the facility had breached the settlement agreement. By letter dated July 28, 2011, the Chief of the Office of Policy and Compliance voided the settlement agreement for lack of consideration and reinstated Complainant's EEO complaint. Between June and September 2011, Complainant and the HR Specialist were addressing the facility's request for medical documentation while the HR Specialist was concurrently attempting to find a suitable position for Complainant. On October 14, 2011, management offered Complainant a position as a GS-4, Step 10 Telephone Operator in Health Administration Service as a reasonable accommodation. On October 18, 2011, Complainant accepted the position.
On August 15, 2011, Complainant filed a formal complaint alleging that: (1) the Agency subjected her to discrimination based on reprisal for prior EEO activity when since February 2, 2011, her request for reasonable accommodation was ignored; (2) the Agency failed to timely respond to her request for reasonable accommodation; (3) the Agency subjected her to discrimination based on reprisal for prior EEO activity when she was denied the opportunity to work overtime on July 4, 2011; and (4) she was subjected to hostile work environment harassment based on reprisal for prior EEO activity with respect to five incidents arising out of claims (1) - (3) as outlined in detail in the Agency's final decision.1 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). After no response from Complainant, the Agency issued a final decision (FAD).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. While finding that Complainant established a prima facie case of discrimination based on retaliation, the FAD determined that the Agency met its burden of articulating a legitimate, non-discriminatory reason for its actions. The FAD found that Complainant failed to establish that the Agency's asserted reason for the alleged discriminatory actions was pretext for discrimination.
STANDARD OF REVIEW
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. (Nov. 9, 1999) (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").
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
While we find that Complainant established a prima facie case of discrimination based on reprisal for prior EEO activity, we also concur with the FAD's determination that the Agency articulated a legitimate, non-discriminatory reason for its decisions with respect to the processing Complainant's reasonable accommodation request and denying her overtime hours. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus. Additionally, we find that although Complainant has established that she engaged in prior EEO activity, she has not demonstrated that she was subsequently subjected to an adverse action by the Agency. The record reflects that the Agency took Complainant through a series of steps in processing her reasonable accommodation request. Additionally, the record reflects that Complainant was not afforded the opportunity to work overtime because her position was not needed during overtime hours. Thus we concur with the Agency's decision finding that Complainant failed to establish a prima facie case of discrimination based on reprisal.
Failure to Accommodate
An agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630.
To the extent that Complainant's complaint can be read as also alleging that she was denied a reasonable accommodation, we find that even if she was a qualified individual with a disability, such a claim would fail. We concur with the Agency's finding that Complainant's reasonable accommodation request was appropriately processed by the responsible Agency officials. There is nothing in the record to indicate that the delay in the instant matter was unwarranted. Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002, Question 6, (as revised Oct. 17, 2002). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, (July 27, 2000) (web version) at 14. The record reflects that the delay in the instant matter resulted, in larger part, because the Agency was waiting on appropriate requested documentation from Complainant. Additionally, once documentation was obtained, the Agency was able to determine which positions Complainant was able to perform. At the time documentation was initially submitted, there were no vacant funded positions which would accommodate Complainant's documented medical restrictions. Complainant was ultimately offered a reassignment which she accepted. Based on the record, Complainant cannot establish that the Agency failed to provide her with a reasonable accommodation, or that there was an unreasonable delay in providing the accommodation.
Harassment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. 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 animus based on retaliation. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).2
CONCLUSION
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 Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
___9/12/14_______________
Date
1 Complainant did not allege a denial of a reasonable accommodation. Instead, she alleges that she was discriminated against in reprisal for prior EEO activity when the processing of her reasonable accommodation request was delayed in reprisal for prior EEO activity.
2 We further find that the matters raised by Complainant were neither severe nor pervasive enough to rise to the level of unlawful harassment.
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0120130146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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