Fidelia F.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 1, 2017

0120143029 (E.E.O.C. Feb. 1, 2017)

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

Fidelia F.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143029

Hearing No. 430-2011-00398X

Agency No. 2004-0590-2009104803

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 25,
2014, finding no discrimination with regard to her 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

The record indicates that the Agency framed Complainant’s claims in her complaint filed on
September 30, 2009, which was later amended, as alleging discrimination when:

Claim A

Based on her race (White) and disability (diabetes), her Nurse Manager denied her leave for
doctor’s appointments and failed to process her request dated June 23, 2009, to remain on the
evening shift as a reasonable accommodation.

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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Claim B

Based on her race (White), she was subjected to a hostile work environment in that:

(1) On June 23, 2009, she made a request for reasonable accommodation and it was not
granted;
(2) During July 2009, her supervisor and other management officials contacted her private
physician trying to obtain medical information about her medical condition without her
consent;
(3) On July 4, 2009, she had to take annual leave instead of having the day off as originally
scheduled;
(4) On July 6, 24, and 25, 2009, she submitted a list of scheduled doctor appointments to
her supervisor requesting to be scheduled off on the date of the appointments, and it
was not taken into consideration;
(5) On August 2, 2009, she asked her supervisor for assistance in completing the paper
work for the family and medical leave action (FMLA) program and no assistance was
provided;
(6) On August 3, 2009, she made an appointment with her supervisor to call her on her
scheduled day off for a meeting, when she reported to work the next day, her
supervisor approached her and said she missed her meeting; and
(7) From August 6, 2009, thru August 19, 2009, she requested copies of her performance
appraisal, but she never received them.

Claim C

Based on her race (White), she felt forced to resign from her position of Nursing Assistant
effective August 20, 2009.

Complainant does not challenge the Agency’s framing of her claims. After completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On August 13, 2013, the AJ denied
Complainant’s hearing request and remanded the Complainant to the Agency to issue a final
Agency decision. Specifically, the AJ stated that at the status conference on August 12, 2013,
Complainant, through her attorney, confirmed that she would not be appearing at the hearing
scheduled for August 15, 2013. The Agency then issued its decision finding no discrimination.
The Agency concluded that it asserted legitimate, nondiscriminatory reasons for its actions,
which Complainant failed to rebut.

Complainant appeals the Agency’s final decision.

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
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C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 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").

Initially, on appeal, Complainant contests that the AJ improperly denied her hearing request
and remanded the complaint to the Agency to issue a decision. The record indicates that a
prehearing was held on December 12, 2012, and a hearing was originally scheduled for May 8
and 9, 2013. Prior to the scheduled hearing, Complainant filed her motion indicating that she
had recently started a new job and had not accrued leave and requested the hearing be
continued until after July, 2013, at which time she would have gained leave time. The motion
was granted and on May 14, 2013, the AJ rescheduled the hearing for August 15, 2013.

A week later, Complainant filed a motion to testify via video teleconference, citing the cost of
travel to the hearing in Virginia, from her relocated residence in Massachusetts, as well as her
concern over her employment. The Agency objected to this motion and the AJ denied the
motion on May 24, 2013. A few days later, on May 28, 2013, she filed another motion to be
permitted to listen to the proceeding by telephone in her personal absence. The Agency
opposed the motion and the AJ denied the motion on July 22, 2013.

On August, 12, 2013, at a status conference, Complainant, through her attorney, confirmed
that she would not be appearing at the hearing scheduled for August 15, 2013. On August 13,
2013, the AJ denied Complainant’s hearing request and remanded the complaint to the Agency
to issue a decision. Specifically, the AJ found that a hearing without Complainant’s
participation in person would prevent a full and fair development of the record, and would
inhibit and possibly preclude the making of essential credibility determinations. The AJ further
found that the Agency would be unable to cross examine her and therefore would be
substantially prejudiced in presenting its defense.

Upon review, we find that the AJ properly denied Complainant’s hearing request due to her
failure to participate at the hearing and properly remanded the complaint to the Agency for a
decision.

Claim A

Complainant claimed that based on her disability and her race, she was denied her leave for
doctor’s appointments and the Agency failed to process her request dated June 23, 2009, to
remain on the evening shift as a reasonable accommodation.

The record indicates that Complainant began working as a Nursing Assistant at the Agency’s
Medical Center in Hampton, Virginia on July 19, 2008, subject to a one year probation period.
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After her probationary period expired on August 4, 2009, Complainant resigned from her
position effective August 20, 2009.2 As a Nursing Assistant, Complainant indicated that her
duties included routine checks of patients, open/closing of the showers, bringing patients from
the emergency room to the unit, providing an open line of communication with patients, sitting
one on one with patients, and if ordered by a physician, helping in the placement of restraints
on a patient. Complainant indicated that she was diagnosed with diabetes in 2004.

Complainant stated that when she began her employment at the Agency, she was scheduled for
the midnight shift, with every other weekend off. Complainant submitted her doctor’s note
dated August 26, 2008, indicating that she “should not do midnight shift work at her job due to
her uncontrolled diabetes mellitus.” Shortly thereafter Complainant was scheduled to work the
evening shift, with her days off rotated and with every other weekend off. In February, 2009,
S1 became Complainant’s new supervisor and S1 scheduled staff to work two weekends
followed by one weekend off.

With regard to Complainant’s work schedule, during the relevant time period at issue,
management indicated that they received complaints from patients, and staff as well, that the
environment had become hostile and unsafe and staff were sleeping at work and not taking care
of patients. In response, management decided all staff would work on rotating shifts.
Complainant does not dispute this.

S1 indicated that on July 6, 2009, S1 received Complainant’s doctor’s letter dated June 23,
2009, indicating she be assigned to her regular schedule due to her diabetes. At that time,
stated S1, Complainant also asked for the forms to fill out for her request. S1 told
Complainant that since S1 would be on leave, Complainant should contact an acting supervisor
to obtain the form to submit regarding the request. Complainant indicated that although she
was not able to obtain the form from the acting supervisor, she obtained the form from Human
Resources (HR). Complainant acknowledged that she did not submit the form to HR as
directed and she resigned from her position on August 4, 2009.

Complainant acknowledged that in June, 2009, she informed S1 that she was admitted to the
Virginia Beach School of Practical Nursing (nursing school). On July 6, 2009, she provided
S1 the official notice of her admission to the nursing school and informed S1 that she would
start at the nursing school on September 8, 2009. During the investigation, Complainant
acknowledged that “[m]y nursing classes were in the mornings and I planned on going to
school in the mornings and working in the evenings as I had been scheduled.”

2 The record indicates that on April 29, 2011, Complainant filed an appeal before Merit
Systems Protection Board (MSPB) alleging that her August 20, 2009 resignation was
involuntary. On May 31, 2011, the MSPB dismissed the appeal for lack of jurisdiction since
she failed to make a nonfrivolous allegation entitling her to a hearing, i.e., casting doubt on the
presumption of voluntariness.
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The record indicates that in her July 24, 2009 electronic message to S1, Complainant stated:

Please remember I start school September 8 and I am asking to be placed back on
evening as that is the only shift I will be able to work with the hours of class, class will
be from 7:45 am – 10:50 Monday – Friday and are held in Virginia Beach. Some of
these upcoming appointments in August are for immunizations and physicals for school.

S1 noted that prior to Complainant’s resignation she worked on the evening shift except one
weekend when she worked on the day shift. Complainant does not dispute this. Management
also indicated that Complainant was also allowed to come in a little earlier or later in order to
accommodate her doctor’s appointments. Complainant does not dispute this. Complainant
does not claim that she was unable to perform her duties working on the day shift or on the
rotating shift.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that she was denied a reasonable
accommodation. Complainant does not allege that she was required to perform her duties
beyond her medical restrictions. Upon review, we find that it is unclear how Complainant was
prevented from maintaining her diabetes regimen, i.e., taking regular breaks and meal times,
when she was on the rotating shift or the day shift. It appears that Complainant requested the
evening shift at the Agency so she could attend her nursing school starting September 8, 2009.
Despite her claim, it is noted that Complainant was not entitled to an accommodation of her
choice, i.e., working on the evening shift solely.

Claim B

With regard to claim (1), management indicated that Complainant resigned before HR could
respond to her request for accommodation, as discussed above. It appears that HR received
Complainant’s June 23, 2009 letter between July 6, 2009 and July 31, 2009, and Complainant
submitted her resignation on August 4, 2009. Complainant acknowledged that although she
was provided with the form to fill out for her request from HR, she never submitted such.
After a review of the record, we find that Complainant failed to show that there were any
similarly situated employees not in her protected groups who were treated differently under
similar circumstances.

With regard to claim (2), S1 and management denied the incident. Even assuming an
identified Occupational Health Physician, who was in charge of reasonable accommodation
requests (now retired), called Complainant’s doctor’s office to obtain medical information in a
follow-up to her June 23, 2009 letter as alleged, Complainant acknowledged that her doctor did
not return the Occupational Health Physician’s call and no medical information was disclosed.
The record indicates that in the June 23, 2009 letter at issue, Complainant’s doctor,
recommending Complainant be returned to her regular schedule, specifically requested the
Agency to call him with any questions or concerns.

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With regard to claim (3), S1 indicated that she scheduled her staff to work two weekends on
and then one weekend off; and since Complainant had prior one weekend off on June 28 and
29, 2009, and she had the holiday off on July 3, 2009, she was scheduled to work on the
evening of July 4, 2009. S1 stated that Complainant did not complain at the time of the
incident. Upon review, we find that Complainant failed to show that there were any similarly
situated employees not in her protected groups who were treated differently under similar
circumstances.

With regard to claim (4), the record indicates that during the relevant time period,
Complainant submitted a number of requests to S1 asking that the dates of her doctor’s
appointments scheduled on 7/6, 7/7, 7/13, 7/21, 7/22, 7/27, 7/28, 8/4, 8/7, 8/11, 8/14, 8/18,
and 8/21/2009, be scheduled as her days off. In her hand-written letter, undated, Complainant
also indicated that 7/21/2009 was for her school information session. The record indicates that
in her July 24, 2009 electronic message to S1, Complainant indicated that her doctor’s
appointments on August 14, 18, and 21, 2009, were for her school’s dental, physical, and
immunization appointments, respectively. Although it is not clear from the record what dates
Complainant was ultimately denied or granted, the record does not indicate that S1’s decisions
were in any way motivated by discrimination or that similarly situated individuals were treated
differently. It simply appears that S1 was attempting to staff the office in a manner that S1
thought was most efficient for the Agency’s mission. S1 stated that the necessity of providing
adequate staff coverage with only seven nursing assistants did not make it possible to grant all
of Complainant’s requested schedule changes. Complainant claimed that her Black coworker
was allowed Tuesdays off, but Complainant was not allowed days off as requested. However,
Complainant admitted that the coworker was allowed only Tuesdays off as an accommodation
for her religion. Based on the foregoing, we find that Complainant failed to show that there
were any similarly situated employees not in her protected groups who were treated differently
under similar circumstances.

With regard to claim (5), S1 indicated that during the relevant time period at issue,
Complainant came to S1’s office to have S1 complete a portion of the FMLA paperwork; S1
completed it and gave it back to her to have her health care provider fill out the portion of the
paperwork. S1 stated that Complainant never brought the completed FMLA paperwork back
to S1. Complainant acknowledged that although she completed the FMLA paperwork, she did
not submit the paperwork to S1 as instructed. There is no persuasive evidence that S1 was not
helpful, that S1’s actions were motivated by discrimination, or that any other similarly situated
persons were treated differently.

With regard to claim (6), S1 indicated that the meeting at issue concerning Complainant’s time
and attendance was to be held on August 4, 2009, but it never took place because she resigned
before the meeting could be rescheduled. The record indicates that on August 3, 2009,
Complainant sent S1 her electronic message confirming the August 4, 2009 meeting at issue.
There is no evidence of any discriminatory intent regarding the meeting scheduling in this
claim.

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With regard to claim (7), S1 indicated that upon Complainant’s request, S1 sent her an
electronic message on August 19, 2009, to stop by S1’s office and make a copy of her
performance appraisal. S1 stated that S1 was not allowed to place Complainant’s performance
appraisal out at the nurse station as she requested. S1 indicated that Complainant, as well as
other employees, were previously provided with a copy of her performance appraisal at issue,
i.e., six-month evaluation, in April, 2009, at the time of issuance.

With regard to Complainant’s harassment claim, we find that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. Complainant has
failed to show that any of the alleged incidents were motivated by discrimination as alleged.

Claim C

Complainant claimed that on August 4, 2009, she was forced to resign from her position of
Nursing Assistant effective August 20, 2009. Specifically, in her complaint, Complainant
alleged that she was forced to resign because she “felt forced to resign as I was never able to
get an answer from [S1] if she would place me back on my normal tour as I was starting
nursing school.”

After a review of the record, it appears that Complainant’s resignation was more likely
motivated by her attending nursing school and her work schedule conflicted with the school
schedule. Although the Agency was not so flexible to grant Complainant’s request to be
placed on the evening shift, there is no evidence that it was based on the discrimination she
alleged. Furthermore, we find that Complainant failed to show that there were any similarly
situated employees not in her protected groups who were treated differently under similar
circumstances.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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.

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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 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
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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

February 1, 2017
Date