Linn L.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 2, 2017

0120151074 (E.E.O.C. Jun. 2, 2017)

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

Linn L.,1
Complainant,

v.

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

Appeal No. 0120151074

Hearing No. 420-2013-00041X

Agency No. 200I-0619-2012101455

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December 19, 2014, 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the
East Campus of the Agency’s Central Alabama Veterans Health Care Service in Tuskegee,
Alabama. Complainant entered duty at the facility in February 2010, and worked the evening
shift. Complainant experiences complications from major depression disorder, anxiety, Post-
Traumatic Stress Disorder (PTSD), and grief. Complainant claims that beginning in May 2010,
her requests for reasonable accommodation were denied. Complainant alleges that she requested
reassignment and additional staff because she wanted to get away from her supervisor (S1).
Additionally, Complainant claims that she had 73 beds to maintain with only one or two
technicians who assisted. Complainant states that she was concerned about safety and staffing

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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and management provided her no assistance. On May 23, 2010, Complainant submitted a letter
requesting a transfer or she would resign. Management was not aware of Complainant’s
condition at the time she provided the letter. S1 acknowledged receiving the letter and
encouraged Complainant to seek other positions at the facility since S1 did not have the authority
to transfer employees. In addition, S1 provided Complainant’s second-level supervisor (S2) a
copy of the letter. Complainant later rescinded the resignation letter.

In February 2011, Complainant submitted a self-evaluation for her proficiency report. S1
determined that, based on her observations, Complainant performed at the “Satisfactory” level.
S1 attached Complainant’s self-evaluation to the back of the proficiency report and submitted it
to the Professional Standards Board for a determination as to whether she met the requirements
for promotion to the next grade. Employees needed to obtain an “Exceptional” or “Outstanding”
rating to be promoted to the next level. Complainant believed that she was performing at the
“Outstanding” level.

On or around May 11, 2011, Complainant claims that a patient made an inappropriate comment
to her, grabbed her by the arm, and blocked her access to the medication room. S1 learned about
the incident from S2, and left a voicemail message after she could not reach Complainant by
phone. The next day, the patient was transferred to another unit. S1 met with Complainant to
discuss the incident and her concerns. During their conversation, Complainant demanded
additional staff to work with her on the evening shift. S1 offered Complainant the opportunity to
transfer to the day shift; however, Complainant declined. Following the incident, Complainant
submitted a second resignation letter on May 29, 2011, but she rescinded it again on June 8,
2011.

On October 6, 2011, Complainant requested leave from December 1 to 4, 2011. S1 initially
disapproved the request because the request did not match up correctly in the system. S1
explained the issue to Complainant and asked her to re-enter the dates. Complainant re-entered
the leave properly and S1 approved the request.

On October 12, 2011, Complainant submitted an official request for reasonable accommodation
to the Director of Human Resources. Complainant was given paperwork to complete, which she
submitted on November 10, 2011. After receiving the request, S1 informed the Agency’s
Reasonable Accommodation Coordinator that she could offer to transfer Complainant to the day
shift. Complainant again declined the offer to transfer to the day shift.

On October 31, 2011, Complainant requested to attend a training workshop on November 10,
2011. S1 denied the request because the schedule had already been posted and Complainant had
just returned from a multiple-day absence. On November 8, 2011, Complainant requested eight
hours of leave for November 10, 2011, to respond to an EEO matter. S1 denied the leave based
on Complainant’s failure to request it as far in advance as possible. Complainant did not report
to work on November 10, 2011, and S1 charged her as absent without leave (AWOL).

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On December 7, 2011, Complainant submitted a resignation letter and a request for emergency
annual leave from December 12 – 15, 2011. When Complainant reported to work on December
11, 2011, she learned that she did not have computer access. Complainant claims a co-worker
(CW1) told her that S1 made a comment that it was a “great day” because “she got rid of two
nurses.” CW1 denied telling Complainant that S1 made that comment. Further, S1 did not have
authority to deactivate an employee’s computer access, but had requested that Complainant’s
access be deactivated in anticipation of her resignation and leave request. Complainant had
accepted a position with another agency, but claims that she was constructively discharged and
forced to resign as a result of S1’s failure to address her concerns.

On March 16, 2012, Complainant claims that she submitted paperwork to the HR Specialist
regarding the student loan forgiveness program through the Department of Labor. Complainant
alleges that she followed up with voicemail messages, but never received a response.
Complainant claims that on March 19, 2012, she made contact with the HR Specialist, but the
HR Specialist was rude to her and hung up on her. Complainant alleges that the HR Specialist
did not complete the paperwork, but the Director of Human Resources did.

On May 4, 2012, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, her reasonable accommodation requests for reassignment and additional
staff were ignored; she received only a “Satisfactory” rating on her proficiency report; a repeated
sex offender/patient made an inappropriate comment to her, grabbed her by the arm, and blocked
her access to the medication room; her request for leave in December 2011 was denied; her
request to attend a training workshop was denied; she was charged absent without leave
(AWOL) in November 2011; her manager stated it was a great day in an offending manner
because she got rid of two nurses and Complainant's computer access was taken away; she was
constructively discharged when she was forced to resign; and, Human Resources personnel
failed respond to her requests to complete paperwork for a loan forgiveness program.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on March 18 – 19, 2014, and issued a decision on
November 3, 2014.

In the decision, the AJ initially assumed arguendo that Complainant is an individual with a
disability. The AJ found that prior to learning of Complainant’s condition, S1 met with
Complainant to discuss her concerns and offered several times to transfer her to the day shift,
which Complainant declined. Following Complainant’s October 12, 2011, request for
reasonable accommodation, management engaged in the interactive process by reviewing her
medical documentation, discussing her concerns, and offering again to change her shift.

2 Complainant withdrew an additional claim prior to the hearing.
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Complainant refused the change of shift because she would remain under S1’s supervision. As a
result, the AJ found that the Agency did not deny Complainant reasonable accommodation.

Regarding her hostile work environment claim, the AJ determined that the alleged incidents were
insufficiently severe or pervasive to establish a hostile work environment. Additionally, the AJ
found that there was no evidence that the alleged incidents were based on Complainant’s
protected classes. Further, the AJ noted that, with respect to the incident with the patient,
management took reasonable measures to make the workplace safe by immediately removing
and transferring the patient to another facility prior to her return to work, offering her Employee
Assistance Program assistance, and offering to transfer her to the day shift. Complainant
declined the opportunity to work a different shift. Finally, the AJ found that there was no
evidence that Complainant was subjected to intolerable working conditions which arose out of
conduct which constituted discrimination or reprisal. As a result, the AJ found that Complainant
was not subjected to discrimination, reprisal, a hostile work environment, or constructive
discharge as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in finding that she was not subjected to
discrimination and a hostile work environment, arguing that she presented ample evidence in
support of her claims. Complainant claims that S1 was disrespectful to her, bullied her, and
ignored her concerns about safety. Complainant argues that the AJ’s decision contains
sweeping, unsupported, and conclusory statements without appropriate analysis. Accordingly,
Complainant requests that the Commission reverse the final order.

The Agency submitted a brief in opposition to Complainant’s appeal in which it argues that the
AJ’s decision was thorough and well analyzed, with numerous findings of fact following the
hearing, and that its final order implementing the AJ’s decision should be affirmed.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether 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. See 29 C.F.R. § 1614.405(a).

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
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testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

Under the Commission’s regulations, an Agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§
1630.2(o) and (p). The Commission will assume without deciding (for the purposes of this
decision) that Complainant is a qualified individual with a disability.

Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. The record reveals that Complainant submitted a letter on May 23, 2010,
requesting a transfer or she would resign, due to several issues including micromanagement by
S1 and lack of safety. ROI, at 236. Complainant’s request at that time was not connected to her
condition. S1 responded that Complainant could seek other positions within the Agency, and
forwarded the letter to S2 because she did not have the authority to transfer employees. Hr’g Tr.,
Vol. 1, at 33; ROI, at 237. Complainant later rescinded the letter. On October 12, 2011,
Complainant submitted a request for reasonable accommodation seeking a transfer from under
the supervision of S1 and for her safety and security issues to be addressed. ROI, at 142-43. S1
advised that she could arrange for Complainant to be transferred to the day shift where she would
have additional staff on duty; however, Complainant declined that offer. ROI, at 112, 148.
Complainant subsequently resigned effective December 15, 2011. Id. at 228-31.

Generally, the Commission has held that an employer does not have to provide an employee with
a new supervisor as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question 33
(Mar. 1, 1999) (employer not required to provide employee with new supervisor as reasonable
accommodation; Hilton v. Dep't of Veterans Affairs, Appeal No. 0120080691 (Mar. 25, 2010).

Agency management offered to transfer Complainant to the day shift where additional staff
would be available to relieve her stress and safety concerns. Complainant declined because she
would still be under the supervision of S1. Management additionally informed Complainant that
she could apply for any open positions for which she was qualified. While Complainant may not
have been offered the exact reasonable accommodations of her preference, an employer is not
required to provide the precise accommodation the employee or applicant wants, so long as the
accommodation offered is an effective one under the circumstances of the situation. U.S.
Airways v. Barnett, 533 U.S. 391, 400 (2002). Here, Complainant has presented no evidence
that the offered accommodations would have been ineffective. Additionally, Complainant has
not shown that there was a vacant, funded position for which she was qualified and to which she
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could have been assigned. Accordingly, the Commission finds that Complainant failed to prove
that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act.

Hostile Work Environment

To establish a claim of harassment a 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 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).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. The Commission finds that substantial record
evidence supports the AJ's determination that Complainant has not shown that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. For example, with regard to the proficiency report, S1 testified that Complainant
was rated as “Satisfactory” based on her evaluation of her performance and Complainant’s self-
assessment. Hr’g Tr., Vol. 1, at 138-41. S1 noted that the Professional Standards Board
determined whether Complainant met the requirements for promotion to the next level. Id. at
144; ROI, at 114. As to the alleged patient assault, S1 learned about the incident from S2 and
attempted to reach Complainant by phone. ROI, at 114. Management immediately moved the
patient to another facility and S1 later met with Complainant and offered her numerous items of
assistance including a transfer to day shift. Id. at 114-15. As to her December 2011 leave
request, S1 testified that she initially disapproved it because it was entered incorrectly into the
system. Hr’g Tr., Vol. 1, at 156-57. Once Complainant corrected the issue, S1 approved the
request. Id. at 157.

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Regarding the November 2011 training request, S1 testified that she denied it because
Complainant had just returned from a multiple-day absence, had not requested it in advance, and
the schedule had already been posted. Id. at 158-59. S1 affirmed that she charged Complainant
with AWOL because she failed to report as scheduled and did not have approved leave. ROI, at
117. S1 stated that Complainant failed to substantiate her absence. Id. As to Complainant’s
claim that S1 made an offensive comment and revoked her computer access, S1 denied making a
comment about getting rid of nurses. Id. at 109. CW1 denied telling Complainant that S1 made
the comment. ROI, at 225. Further, S1 asserted that Complainant’s computer access was
deactivated because she indicated that December 15, 2011, would be her last day and she was
required to report anyone who needed to be removed from the system. Id. at 118. Finally, with
respect to the Department of Labor paperwork, the Human Resources Specialist affirmed that the
requested paperwork was completed and returned to Complainant. Id. at 134. S1 stated that she
only discussed with Complainant the reason the forms were being sent to Human Resources
when she was no longer employed with the Agency. Id.

After reviewing the record and considering the arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and her factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that she was subjected to a discriminatory or retaliatory hostile work environment.
Furthermore, the record fails to disclose any evidence purporting to show any of the alleged
incidents were based on discriminatory or retaliatory animus. Accordingly, the Commission
finds that Complainant has not established that she was subjected to discrimination, reprisal, or a
hostile work environment as to all claims alleged.

Constructive Discharge

Finally, to the extent that Complainant alleges that she was forced to resign because of the
Agency’s discrimination, the Commission notes that the central question in a constructive
discharge case is whether the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in the employee's position
would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No.
07A00003 (Apr. 17, 2002). As stated above, the Commission finds that substantial record
evidence supports the AJ’s finding that Complainant has not shown that the Agency's actions
were motivated by discriminatory or retaliatory animus. Thus, the Commission finds that
Complainant cannot establish the necessary elements to prove constructive discharge.

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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
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.

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
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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