0120142246
01-18-2017
Josephine S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josephine S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142246
Agency Nos. 200306862011104165, 200306862013100809
DECISION
On April 30, 2014, Complainant filed an appeal,2 pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 1, 2014, final decision concerning her equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to these complaints, Complainant worked as an Occupational Therapist, GS-11, at the Agency's Leavenworth VA Medical Center in Kansas. Complainant's first-level supervisor, who worked primarily at another VA Medical Center in the same state, was the Supervisor of Occupational Therapy (S1 - 56, disabled).
Complainant filed EEO complaints alleging that the Agency discriminated against her:
1. On the bases of disability (torn hand ligament, foot tendonitis), age (60), and reprisal for prior protected EEO activity (July 2011 and onwards) when, from January 2010 to March 2012, she was subjected to hostile work environment harassment. As part of her claim, she alleged 31 incidents of harassment, including the following: (i) some of her coworkers subjected her to "screaming attacks" and the "silent treatment;" (ii) S1 required her to request compensatory time in advance, but allowed her coworkers to work outside their tours of duty without advance notice; (iii) S1 excluded and isolated her from information related to the operation of the unit; (iv) S1 denied her the opportunity to apply for a year-long leadership development course; and (v) S1 ignored her safety concerns about her walking boot getting caught beneath the stools in the unit.
2. On the basis of reprisal for prior protected EEO activity (July 2011 and onwards) when, in October 2012, S1 rated her "Fully Successful" on the critical job element of Patient Evaluation and Treatment in her fiscal year 2012 performance appraisal, which precluded her from receiving an overall rating higher than "Fully Successful."3
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In one complaint, Complainant timely requested a hearing but subsequently withdrew her request. In the other complaint, Complainant requested a final decision from the Agency. The Agency consolidated Complainant's complaints. Subsequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its 65-page final decision, the Agency concluded that Complainant did not establish hostile work environment harassment (claim 1) or disparate treatment (claim 2) as alleged.
Regarding claim 1, the Agency found that Complainant did not show that the incidents were based on her disability, age, or prior protected EEO activity. Instead, the Agency found that some incidents did not occur as Complainant described and that other incidents consisted largely of job-related actions by S1. The Agency addressed each of the 31 incidents in detail by evaluating the relevant affidavit testimonies and documentary evidence. We will highlight the Agency's findings pertaining to the incidents mentioned above. As to incident (i), the Agency found that Complainant's coworkers did not subject her to "screaming attacks" and that any "silent treatment" stemmed from the fact that they interacted with her as little as possible because they found her difficult to get along with. As to incident (ii), the Agency found that S1's former supervisor established a policy requiring employees to request compensatory time in advance and that S1 applied the policy consistently to all her subordinates. As to incident (iii), the Agency found that S1 attempted to keep Complainant "in the loop" about information related to the operation of the unit, that S1 did not intentionally exclude her or isolate her on such matters, and that her own behavior tended to keep S1 at a distance, i.e., she avoided S1 and made herself unavailable when S1 visited the unit. As to incident (iv), the Agency found that S1 denied Complainant's request to apply to the year-long leadership development course because the time commitment would adversely impact her ability to perform her primary duties and the unit's ability to provide adequate clinical coverage to patients, especially because there was already a vacant Occupational Therapist position in the unit. As to incident (v), the Agency found that S1 responded to Complainant's concerns by instructing her to stop using the stools, asking her to remove the stools until S1 could assess them, and eventually requesting replacement stools.
Regarding claim 2, the Agency initially found that S1 articulated a legitimate, nondiscriminatory reason for rating Complainant "Fully Successful" on the critical job element of Patient Evaluation and Treatment; namely, there were four or five instances when Complainant did not timely provide her patients with the promised adaptive equipment after conducting a home visit. Moreover, the Agency found that Complainant did not prove that S1's reason was a pretext for discrimination based on her prior protected EEO activity. Although Complainant disagreed with S1's assessment of her performance, the Agency found that there was no evidence that S1 had a retaliatory motive.
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because a preponderance of the record evidence does not establish that disability, age, or reprisal discrimination occurred.
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 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
_1/18/17_________________
Date
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.
2 Complainant did not submit a brief or statement in support of her appeal.
3 A job element can be rated "Exceptional," "Fully Successful," or "Less Than Fully Successful." To receive an overall rating higher than "Fully Successful," all critical job elements must be rated "Exceptional." S1 rated Complainant on four job elements: Patient Evaluation and Treatment (critical); Oral and Written Communications (critical); Organizational Support, Customer Service (non-critical); and Professional and Personal Development (non-critical). S1 rated Complainant "Exceptional" on all except for the critical job element of Patient Evaluation and Treatment.
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