Edwina W.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 2, 2017

0120150783 (E.E.O.C. Jun. 2, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Edwina W.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150783

Hearing No. 410-2013-00311X

Agency No. 200I-0508-2012104106

DECISION

On December 15, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 2, 2014, final decision 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Supervisory Diagnostic Radiology Technician at the Agency’s
Medical Center in Decatur, Georgia.

On September 12, 2012, Complainant filed an EEO complaint in which she alleged that the
Chief Radiology Technologist, her first-line supervisor (S1), and the Radiology Service
Administrative Officer, her second-line supervisor (S2) discriminated against her as set forth in
the following claims:

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.
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A. Between October 15 and October 18, 2012, S1 and S2, along with the Reasonable
Accommodation Coordinator (RAC) denied her request for a reassignment as a
reasonable accommodation for her disability (neck and back soreness) by attempting to
engage her in an interactive process rather than immediately granting her request.

B. Whether S1 and S2 subjected Complainant to harassment because of her gender (female),
race (African-American), age (47), disability (neck and back soreness), and reprisal (prior
EEO activity), as evidenced by the following incidents:

1. Between July 2010 and June 2012, S1 and S2 failed to provide Complainant with
adequate tools, support, or training to perform her job.

2. Between February and April, 2011, S1 refused to address Complainant’s concerns
regarding one of her subordinates.

3. From February 2011 to the present, S1 documented all of her activities and made
comments about the number of times Complainant had visited S1’s office.

4. In September 2011, Complainant did not receive a mid-year performance review.

5. From February 2012 to the present, S1 and S2 allowed Complainant’s staff to
sabotage her work because they wanted someone else to supervise them.

6. In March or May of 2012, S1 allowed a radiologist to yell at Complainant after
Complainant had refused his request to send cardiac images over an unsecure line.

7. On May 21, 2012, S1 accused Complainant of refusing to develop a protocol
book and refused to meet with Complainant herself to discuss the project.

8. On May 31, 2012, S1 yelled at Complainant.

9. On June 8, 2012, S1 asked Complainant to document an interaction she had with
one of her subordinates.

10. On June 14, 2012, S2 made unspecified falsehoods about Complainant during a
staff meeting.

11. On June 20, 2012, S1 yelled at Complainant and told her not to discuss the
employees who she supervises with a union representative.

12. On July 10, 2012, S2 notified Complainant’s staff that she would be on temporary
leave for three weeks.

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13. On September 5, 2012, Complainant had discovered that her leave under the
Family Medical Leave Act (FMLA) had stopped on July 10, 2012, despite
medical documentation that showed her as eligible for continued leave.

14. On October 12, 2012, S1 refused to sign Complainant’s request for a
reassignment as a reasonable accommodation.

15. On October 15, 2012, a Human Resources Specialist (HRS) informed
Complainant’s husband, who was acting as her representative, that he would not
process Complainant’s reasonable accommodation request without first speaking
to S2.

16. Between October 15 and 18, 2012, the RAC advised Complainant and her
husband that Complainant would have to engage in an interactive process before
her request for a reasonable accommodation could be processed further.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

Complainant initially averred that between July 2010 and June 2012, she did not receive the
training, support and tools she needed to perform in her job as a Radiology Technologist. S1 and
S2 both disputed this assertion. S1 maintained that she had given Complainant the support she
needed both as a lead and then as a supervisor. S1 and S2 both pointed out that Complainant had
attended eight training sessions, including workshops, seminars, and supervisory development
courses. S1 also stated that Complainant would often accuse her staff of trying to sabotage her,
and that Complainant wanted her to “write up” her staff for not showing her the proper respect,
which was something that she, S1, could not do. IR 276, 294.

Complainant next averred that between February and April 2011, she was having issues with one
of her subordinates and that S1 had refused to back her. S1 denied that she refused to address
Complainant’s concerns regarding this employee. S1 did, however, ask Complainant to
document her specific complaints about the individual, in writing, when they occurred, so that
she could have a better understanding of the situation. S1 reported that Complainant had never
sent her any of the requested documentation regarding the employee in question. IR 277.

Third, Complainant averred that since February of 2011, S1 had been documenting her activities,
and commenting about the number of times Complainant had been to her office. S1 denied that
she documented Complainant’s activities or otherwise kept tabs on her. She did point out that
she had advised Complainant on several occasions to let her staff and supervisors know if she
was going to be out of the office for any length of time, so that they would be able to get in touch
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with her in the event of an emergency. S1 further stated that Complainant had been to her office
numerous times to ask her about decisions that she, Complainant, needed to make herself. S1
noted that Complainant had visited her office eleven times in one day. S1 averred that she, in
effect, had to run Complainant’s section. IR 278. S2 stated that S1 appeared to be frustrated by
Complainant’s over-reliance on S1 in the day-to-day administration of her branch. IR 295.

Fourth, Complainant averred that she did not receive her mid-year performance review when it
was due in September 2011. The period covered by the review ran from May 10 through
September 30, 2011. In her mid-year rating, Complainant received ratings of “exceptional,” the
highest rating, on all five individual performance elements, which translated into an overall
rating of “outstanding.” Complainant eventually received the appraisal in November 2011. IR
278, 335-38.

Fifth, Complainant averred that since February 2012, S1 and S2 allowed Complainant’s
subordinates to sabotage her work because they wanted one of Complainant’s coworkers,
another Radiology Technologist (CW1) to replace Complainant in the supervisory function. S1
and S2 vigorously denied this assertion, pointing out that CW1 had never applied for the
positions of lead technologist or supervisory technologist. S1 also noted that Complainant did
not know how to operate two of the four scanning machines, and that she refused to let her staff
teach her how to do so for fear that they would sabotage her. S1 expressed to Complainant that
her concerns in that regard were unfounded. IR 279, 295.

Sixth, Complaint averred that in March or May 2012, S1 failed to back her when a Radiologist
yelled at her and made threats against her for refusing to send cardiac images from a patient over
an unsecured communications channel, citing privacy concerns. S1 and S2 both stated that there
was a policy in place that prohibited the dissemination of patients’ private medical information
over unsecured lines, but that the necessary approval was eventually obtained. S1 averred that
she had known the Radiologist for over ten years, and that while he may have expressed
frustration at Complainant’s refusal to send the images without authorization, he did not threaten
her. IR 280. S2 confirmed that the Radiologist did make the request for the images, and that
Complainant did refuse to send the images, but that she had called the Radiologist to explain
why the images could not be sent and that was the end of the matter. S2 emphasized that
Complainant had rightly refused to send the images. IR 296.

Seventh, Complainant averred that in May 2012, S1 accused her of refusing to develop a
protocol book for the Radiology Department and refused to meet with Complainant to discuss
the assignment. In an email dated May 24, 2012, in response to a question from Complainant as
to why S1 chose her to undertake the protocol book assignment, S1 reaffirmed her belief that
Complainant was best suited for the task, and that time was of the essence in completing the
assignment. IR 403. Complainant and S1 communicated back and forth via email for the next
several days and met to discuss the project on May 31, 2012. IR 281, 404-12. S1 denied that she
accused Complainant of refusing to develop the protocol book; rather, she merely asked
Complainant for an estimated time-line as to when the project would be finished. IR 280-81. S2
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had expressed surprise at what she thought was an inordinate amount of time that Complainant
was requesting in order to complete the protocol book. IR 296.

Eighth, Complainant averred that during the meeting that took place on May 31, 2012, S1 yelled
at her. S1 denied that she raised her voice to Complainant. She averred that Complainant
became upset when S1 pointed out to her that a number of radiologists had expressed their
feelings that rather than solve communication problems with them, Complainant made those
problems bigger. IR 282. S2 averred that although she did not witness the event personally, she
had worked with S1 for sixteen years and had never once observed her yelling at anyone. IR
297.

Ninth, Complainant averred that on June 8, 2012, S1 had asked her to document, in writing, an
interaction that had taken place between her and one of her subordinates. S1 stated that an EEO
Assistant had contacted her concerning a possible violation of the confidentiality provision of a
mediation agreement reached between Complainant and the individual in question. IR 283.

Tenth, Complainant averred that on June 14, 2012, S2 made unspecified untrue statements about
her during a staff meeting. S2 could not recall the incident. S1 stated that she could not recall
any untrue statements or negative comments made by S2 during the staff meeting in question,
characterizing S2 as “honest” and “matter-of-fact” in her dealings with staff. IR 283.

Eleventh, Complainant averred that on June 20, 2012, S2 yelled at her and told her not to discuss
situations involving employees who she supervised directly with the union. S1 denied yelling at
Complainant. She stated that Complainant had met with two union representatives to discuss a
situation concerning one of her employees, who was not present. The union representatives told
Complainant that the employee had to be present. When Complainant came to her for advice on
what to do, S1 had advised her to do what the representatives had asked her to do and summon
the employee. She averred that she did not want Complainant to get in trouble or to otherwise
embroil management in a negative situation because of her failure to follow proper procedures.
IR 284.

Twelfth, Complainant averred that on July 10, 2012, S2 notified Complainant’s staff that
Complainant would be out on temporary leave for three weeks. S1 replied that she, not S2, had
informed Complainant’s subordinates that Complainant would be out for an extended period of
time and that she, S1, would act as their immediate supervisor until Complainant returned. IR
284. S2 stated that it was common practice for managers to let their employees know when they
would be out on leave, but emphasized that neither she nor anyone else in management would
disclose the details of that leave. IR 298.

Thirteenth, Complainant averred that on September 5, 2012, she became aware that the leave she
had been taking under the FMLA had stopped on July 10, 2012, despite her submission of
medical documentation that established her eligibility for continued FMLA leave. However, the
documentation supporting her FMLA leave request stated that she was entitled to take up to
twelve weeks of leave during the twelve-month period that began on June 19, 2012, that she had
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taken three weeks of FMLA leave between June 19 and July 10, 2012, and could take up to nine
more weeks of FMLA leave prior to June 19, 2013. IR 286, 310-11, 386-88, 431.

The remaining incidents revolve around Complainant’s request for a reassignment as a
reasonable accommodation. Complainant submitted her request on October 2, 2012. She had
chronic soreness in her neck and back that permanently limited her ability to lift more than 25
pounds and reaching over her head. IR 257-58, 328-29. However, she declined to specify any
further details of her condition, noting on the disability request form that she declined to disclose
personal health information. As an accommodation, she requested reassignment to an alternative
location within the greater Atlanta metropolitan area. IR 327. On October 12, 2012,
Complainant’s husband, acting on Complainant’s behalf asked S1 to approve Complainant’s
request to be reassigned. S1 informed Complainant’s husband that neither she nor S2 had the
authority to sign off on a reassignment and gave him the name of the Specialist in the Human
Resources office who had been assigned to handle Complainant’s accommodation request. IR
286, 298-99, 305. Both the Human Resources Specialist and the RAC advised Complainant and
her husband that before her request for reassignment could be approved, they would have to
engage in an interactive process that included S2 and an Agency physician. IR 306-07, 390-91,
400-02.

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”).

Disability Accommodation

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to its
operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dept. of Agriculture, EEOC
Appeal No. 0120120400 (Dec. 3, 2015).

A qualified individual with a disability is an “individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
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can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). We will assume
for purposes of analysis that Complainant is a qualified individual with a disability.

Agencies are required to engage in an interactive process with employees regarding reasonable
accommodations, and employees who refuse to cooperate in that process are not entitled to an
accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465
(May 12, 2017), citing EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002,
Question 6 (Oct. 17, 2002) (If an employee refuses to provide the documentation requested by
the employer, then she is not entitled to reasonable accommodation). Here, Complainant’s
apparent lack of cooperation stems not only from refusing to provide supporting documents
specifically describing her condition but from refusing to engage in the function that is central to
the whole accommodation process. Moreover, in requesting reassignment as a reasonable
accommodation, Complainant sought an accommodation of last resort that should only be
utilized after a determination has been made that there are no other accommodations that would
enable her to perform the essential function of her current position without imposing an undue
hardship upon the Agency. Zachary K. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120130795 (Nov. 19, 2015). There are no indications in the evidentiary record that
Complainant had sought any type of reasonable accommodation other than reassignment. In
view of this as well as her apparent refusal to provide a specific description of her condition on
her reasonable accommodation request form, we find that the Agency did not violate the
Rehabilitation Act by requiring Complainant to engage in the interactive process before
approving her request for a reassignment.

Harassment

To prevail on claim of discriminatory harassment, Complainant must prove, by a preponderance
of the evidence that because of her race, gender, disability, or age, S1, S2 or the RAC, had
subjected her to conduct severe, pervasive, or patterned enough to alter the conditions of her
employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). Since Complainant has also alleged reprisal, she must prove that their actions
were harmful to the point that they could dissuade a reasonable person from making or
supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006). Only if Complainant satisfies her burden of proof with respect to all of these
elements, intent and either hostility or chilling effect, will the question of Agency liability for
harassment present itself. Gregory F. v. Dept. of the Treasury, EEOC Appeal No. 0120141037
(Dec. 2, 2016); Analee P. v. Social Security Admin., EEOC Appeal No. 0120140956 (Nov. 23,
2016); Arlette W. v. Dept. of Justice, EEOC Appeal No. 0120140915 (Oct. 20, 2016).

To establish that claim, Complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on her statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
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purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Complainant satisfied the first prong in her harassment claim by virtue of her membership in her
claimed protected classes and by virtue of her prior EEO activity. As to the second prong,
Complainant found the Agency’s actions to be unwelcome.

In order to satisfy the third prong of her claim of a hostile work environment, Complainant must
establish that S1 or S2 relied upon considerations expressly proscribed by statute in taking the
actions that Complainant alleged. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal
No. 0120142387 (Mar. 29, 2016); Rufus G. v. U.S. Postal Service, EEOC Appeal No.
0120142395 (Mar. 29, 2016); Joni M. v. Dept. of Homeland Security, EEOC Appeal No.
0120142884 (Feb. 1, 2016). She can do so by showing such weaknesses, inconsistencies, or
contradictions in their explanations for the incidents described in the complaint that a reasonable
fact finder could rationally find those explanations unworthy of credence. Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008). Indicators of unlawful intent include
discriminatory statements or past personal treatment attributable to those responsible for the
personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC
Appeal No. 0120141697 (Nov. 12, 2015).

In this case, S1 and S2 articulated legitimate, nondiscriminatory reasons for every single one of
the incidents at issue. They provided Complainant with the support she needed by allowing her
to attend numerous training sessions, both on-site and off-site. They repeatedly encouraged her
to rely on her own judgment in dealing with her staff while expecting that she follow normal
protocol when confronted with potential conflict situations involving her subordinates. S1 and
S2 denied yelling at Complainant or making statements about her that could reasonably be
interpreted as insulting or demeaning. At most, they expressed frustration on occasion over
Complainant’s tendency to accuse her subordinates of trying to sabotage her rather that
constructively engage them. In support of her harassment claim, Complainant presented an
affidavit from her husband, who, as noted above, acted as her representative in her effort to
obtain a reasonable accommodation. Although Complainant’s husband opined that she was
subjected to a hostile work environment, he admitted that he did not have any knowledge of the
situation independent of what Complainant had told him. IR 257-65. Apart from her own or her
husband’s affidavit, Complainant has submitted neither affidavits, declarations, or sworn or
unsworn statements from impartial witnesses nor documents which contradict the explanations
put forward by S1 and S2 for their actions or which call their veracity into question. On the basis
of the foregoing considerations, we find that Complainant has not established that the Agency’s
actions were based on her protected classes or her prior EEO activity.

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We further find that Complainant has not shown that the Agency’s actions were so severe or
pervasive such that a legally hostile work environment existed. The conduct alleged to constitute
harassment should be evaluated from the objective viewpoint of a reasonable person in the
victims’ circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994). Complainant must bear in mind, however, that anti-
discrimination statutes are not general civility codes designed to protect against the “ordinary
tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998);
see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012)
(personality conflicts, general workplace disputes, trivial slights and petty annoyances between
an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws
address discriminatory conduct that alters the work environment. See Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that
routine work assignments, instructions, and admonishments are by definition neither severe nor
pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a
hostile work environment. Complainant v. Dept. of State, EEOC Appeal No. 0120123299
(February 25, 2015). Here, we find that, from the perspective of a reasonable person in
Complainant’s situation, the incidents comprising her hostile work environment claim were
nothing more than routine work-related matters, none of which was severe or pervasive enough,
either singly or collectively, to constitute harassment. We find that Complainant has not
established that she was subjected to a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not subjected to discrimination or denied a
reasonable accommodation as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington,
DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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

June 2, 2017
Date