EEOC Appeal Nos. 0120140815 & 012142049
01-26-2018
Natalie S. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalie S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 0120140815, 01201420492
Agency Nos. 200J-0326-2011103602, 200J-0326-2012101608
DECISION
Complainant filed two timely appeals3 with the Commission concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission VACATES in part and REVERSES in part the final Agency decisions (FADs).
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly dismissed a claim for failure to state a claim, and dismissed a claim for raising the same matter raised in a negotiated grievance procedure; (2) whether the Agency properly processed Complainant's claims relating to the denial of a reasonable amount of official time; and (3) whether the Agency properly concluded that the preponderance of the evidence of record did not establish that Complainant was subjected to disparate treatment or a hostile work environment based on disability and/or reprisal; (4) whether the Agency properly determined that the preponderance of the evidence did not establish that Complainant was denied a reasonable accommodation; and (5) whether the Agency properly determined that the preponderance of the evidence did not establish that the Agency made an impermissible medical inquiry.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Rating Veterans Service Representative (RVSR) at the Agency's Regional Office in Indianapolis, Indiana. Complainant's first-line supervisors (S1A and S1B) were Coaches, her second-line supervisor (S2) was the Assistant Veteran Service Center Manager, and her third-line supervisor (S3) was the Veteran Service Center Manager. Complainant's disability is "personal trauma post-traumatic stress disorder" (PTSD), which is connected to her military service. IF1 at 168.
EEOC Appeal No. 0120140815 (Appeal 1)
Complainant stated that she was required to work 40 hours of mandatory overtime between September 2010 and December 2010. IF1 at 173. According to Complainant, working the mandatory overtime was debilitating. IF1 at 172.
According to Complainant, a coworker (C1) with whom Complainant was friendly shared his personal medical information with her around March 2011 because he was asking her for help with his personal Agency appeal. IF1 at 174. Complainant stated that she showed C1's personal medical information to another coworker (C2). Id. C2 reported Complainant's actions to management and, on May 20, 2011, Complainant was given a 10-day suspension for sharing C1's personal medical information. Id.
Complainant alleged that C1 threatened her and her family on May 17, 2011. IF1 at 173. Complainant subsequently took out an order of protection against C1. IF1 at 175. According to Complainant, her husband had previously approached C1's fianc�e and told her that C1 was mistreating female employees in the Regional Office. IF1 at 175. On May 18, 2011, S3 told Complainant that her husband could no longer be in or around the Regional Office. IF1 at 174. S3 said that she told Complainant that her husband could not be on the premises because Complainant's husband had threatened C1. IF1 at 232.
According to Complainant, on May 19, 2011, she requested to work from home 40 hours per week as a reasonable accommodation for her disability. IF1 at 169. Complainant stated that she worked in an open area with approximately 200 employees, which exacerbated her PTSD symptoms. Id. According to Complainant's May 19, 2011, request, she requested "a segregated work environment" and asked that she not be assigned any PTSD or trauma claims. IF1 at 428. On June 6, 2016, Complainant submitted a request to work from home 40 hours per week because C1 "is a threat to me. . . . I do not feel safe and I do not feel that my fears are being taken seriously within the agency." IF1 at 430. On August 17, 2011, Complainant submitted additional medical documentation and Complainant's union representative (UR1) requested that Complainant "be assigned to a Work-At-Home status until such time that her Medical Retirement paperwork is complete." IF1 at 416-20. According to the record, Complainant was moved to a secluded work area the first week of June 2011, and the Agency stopped assigning Complainant cases involving PTSD or trauma. IF1 at 414, 426.
Complainant asserts that on October 10, 2011, S3 told her that her accommodation request to work from home was denied because her conduct and performance were not consistent with the guidelines for working from home. IF1 at 171. According to the October 6, 2011, Denial of Accommodation form signed by S3, S3 was not approving the requested accommodation because "[Complainant's] conduct and performance are not consistent with Work at Home guidelines." IF1 at 479-80. According to the Agency's telework program guidelines, to be eligible for the program, employees "must be at journeyman status, have overall performance evaluations equivalent to fully successful or higher, not be on a performance improvement plan, and not have disciplinary actions taken against him/her within the last 12 months and/or adverse actions taken against him/her within the last 18 months." IF1 at 1057. S3 stated that an RSVR of Complainant's tenure was required to produce three and one-half rated actions per day, but Complainant was averaging less than one action per day. IF1 at 231. According to S3, on September 14, 2011, Complainant was offered a workspace in a lower traffic area than the workspace to which she was moved in June 2011, but Complainant declined the offer. IF1 at 229. Complainant resubmitted her request to work from home on December 16, 2011, reportedly because coworkers frightened her when they approached her and because she did not trust management. IF1 at 471-73.
Complainant stated that on June 16, 2011, she was issued a proposed 14-day suspension for having a case on her desk too long. IF1 at 176. According to Complainant, she had had the case for approximately six months. Id. According to S3, on June 9, 2011, S1A instructed her team to submit cases that were over a year old. IF1 at 233. S3 stated that Complainant submitted an April 2010 case that she had not worked on since August 2010. Id. According to S3, Complainant was issued a proposed suspension because she was negligent in not resolving the case during that time frame. IF1 at 233-34.
On June 24, 2011, Complainant had eye surgery with an expected recovery period of four to seven days. IF1 at 313. According to Complainant, she had sufficient leave to cover the expected recovery time, but she had complications and did not return to work as expected on July 15, 2011. Id. Complainant indicated that her June 24, 2011, request to become a leave recipient for the Voluntary Leave Transfer Program (VLTP) was denied because she had not exhausted her leave. Id. According to Complainant, she resubmitted her request on July 13, 2011, after exhausting her leave, but that her request was denied on September 27, 2011, because the eye surgery was elective and because Complainant "did not exhibit a prudent use" of her leave. IF1 at 313-14.
On August 19, 2011, Complainant filed for disability retirement. IF1 at 177. According to Complainant, " . . . when I was informed that [management was] going to consider a second suspension, I felt as though my only option to leave out of this office was to retire because I could not handle another thing that they were trying to look for to hurt me. . . . It was like I had a target on my back. And I just couldn't handle it." Id. Complainant alleged that on August 22, 2011, S1B gave her "false information" about her disability retirement because he told her that her disability retirement would be fast-tracked by the Regional Office if she withdrew her EEO complaint. Id. According to Complainant, this information was false because her disability caseworker told her that the Regional Office had no authority to fast-track her disability claim. IF1 at 178. S1B denied making a statement to that effect. IF1 at 274.
On August 5, 2011, Complainant filed an EEO complaint, amended on August 19, 2011, August 29, 2011, and November 23, 2011, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (physical) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 19734 when:
1. On February 19, 2011, she was denied 11 hours of administrative leave;
2. On May 19, 2011, she requested a reasonable accommodation and, as of the filing of the complaint, no action has been taken;
3. On May 18, 2011, S3 informed Complainant that her husband was no longer allowed within or outside the Regional Office;
4. On May 20, 2011, she was issued a 10-day suspension;
5. On June 16, 2011, she was issued a proposed 14-day suspension;
6. On August 2, 2011, S3 stated during mediation that Complainant's performance was "at best subpar;"
7. On August 19, 2011, she was forced to submit her paperwork for disability retirement;5
8. On August 22, 2011, S1B gave her false information regarding her disability retirement; and
9. From September 2010 through December 2010, she was forced to work mandatory overtime.
The Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(4) because Complainant had raised the same matter in a union step 2 grievance on March 11, 2011. The Agency dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state an actionable claim because Complainant was complaining about statements made during the confidential mediation process. The Agency accepted claims 2, 4, and 7 as timely discrete acts and accepted incidents 2 through 5 and 7 through 9 as a hostile work environment claim.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final Agency decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency therein concluded that Complainant failed to prove that it had subjected her to discrimination as alleged. With respect to claim 2, the Agency determined that it had satisfied its obligation to provide Complainant with a reasonable accommodation when it moved her cubicle and that working from home would have been an ineffective accommodation because Complainant would have been supervised by the same supervisors.
EEOC Appeal No. 0120142049 (Appeal 2)
According to Complainant, the Regional Office has a Blue-Ribbon Employee Recognition Program to recognize employees who exceed their baseline standards. IF2 at 210. Complainant stated that employees who exceed their baseline standards for a particular month receive a gold star, and that an employee who receives six gold stars in a row is given a blue ribbon at an award ceremony. IF2 at 212. Complainant stated that as an RSVR, she would need at least 89.25 percent accuracy to receive a star for that month. IF2 at 211. According to Complainant, she exceeded 89.25 percent accuracy in July and August 2011 but did not receive stars for that month and was excluded from the October 2011 Blue Ribbon Employee Recognition Program award ceremony. Id. According to the supervisor of the Quality Review Team (S4), Complainant received stars for July 2011, August 2011, and October 2011, but Complainant was not present at the February 2012 awards ceremony to receive her star for October 2011. IF2 at 287.
Complainant stated that on December 27, 2011, she requested official time to prepare documents for the EEO investigation related to Appeal 1. IF2 at 214. According to Complainant, S1B told her that he would approve five hours of official time, but only if she finished working on a case prior to taking the official time. Id. Complainant stated that the case was complex and that she was unable to complete working on it in three hours. Id. According to Complainant, she received only two hours of official time on December 27, 2011. Id. S1B stated that he told Complainant to work on the case for three hours and then take five hours to work on her EEO matter. IF2 at 279. The record contains a December 27, 2011, email from S1B to Complainant which states, "I will a lot [sic] you five (5) hours. This will also give you three (3) to complete the two (2) year old case today." IF2 at 121.
According to Complainant, she and her coworkers worked on a special project, the Integrated Lab (ILAB) initiative. The Agency presented the regional office with an award for the ILAB initiative, which meant that involved employees were eligible for a monetary award. IF2 at 215. Complainant stated that she did not receive a monetary award, despite working on the ILAB initiative, because she had been suspended. IF2 at 215-16. According to Complainant, this criterion for receiving a monetary award was added after the fact. Id. The record contains a January 5, 2012, email, which states that recently hired employees, employees subject to a performance improvement plan, and employees with conduct issues were ineligible for the award. IF2 at 529-30. A coworker who was on a performance improvement plan stated that he did not receive the ILAB award. IF2 at 232.
On January 9 and 24, 2012, Complainant's UR1 requested official time to assist Complainant with compiling documents for the EEO investigation related to Appeal 1, but UR1's supervisor (S5) denied the requests. IF2 at 218. According to Complainant, on February 6, 2012, S5 told UR1 that he would only allow her one hour of official time per day to work on any EEO matters. IF2 at 219. According to UR1, in February 2012 she was representing Complainant and three other employees for EEO complaints. IF2 at 270. Complainant stated that she was unable to meet with UR1 on February 9, 2012, because UR1 could not fit Complainant into her one hour allotted for EEO matters. IF2 at 222. The record contains a series of illegible emails between UR1, S5, and other Agency managers regarding UR1's use of official time for EEO and union matters. IF2 at 490-527.
According to S2, Complainant provided the Agency with medical documentation stating that Complainant could self-medicate for PTSD for up to three days but needed to visit her doctor for absences longer than four days. IF2 at 297. S2 said that this policy was in compliance with page 191 of the Master Agreement which states, "An employee with a chronic medical condition that does not require medical treatment but does result in periodic absences from work will not be required to furnish a healthcare provider's certificate on an ongoing basis if the employee provides, if requested, an administratively acceptable medical certificate every six months which clearly states the continuing need for periodic absences." IF2 at 303. On February 9, 2012, S2 told Complainant that she needed to provide updated medical documentation for her need to self-medicate at home for PTSD. IF2 at 221.
According to Complainant, she had provided such medical documentation to the Agency as recently as August 2011 and December 2011. Id. S2 stated that she requested new documentation because the most recent note provided was the August 2011 note. IF2 at 303. The August 2011 letter from Complainant's psychiatrist indicated that Complainant's PTSD was chronic and "likely unremitting." IF2 at 426-28. Complainant stated that her psychiatrist was out of the office when S2 requested the updated documentation in February 2012, so her primary care physician prepared a note authorizing Complainant to self-medicate at home for PTSD. IF2 at 222. According to Complainant, on February 21, 2012, S1B told her that he would not accept the note from the primary care physician because the note did not contain the primary care physician's signature block. IF2 at 223. S1B and S2 stated that the doctor's note had an illegible signature and that it was impossible to tell who signed the note. IF2 at 281, 304-05. According to S1B and S2, physicians generally include a signature block on doctor's notes. Id.
According to Complainant, when she took leave, she often would include a comment in the Enhanced Time and Attendance (ETA) system to remind her why she was taking leave on that date. IF2 at 224-25. For example, Complainant included comments such as, "PTSD symptoms due to office harassment reprisal harassment." IF2 at 225. On March 23, 2012, S1B told Complainant that the comments she was adding in ETA were unacceptable and needed to stop. IF2 at 224-25. According to Complainant's Timekeeper (T1), Complainant occasionally named the managers she believed were harassing her in her ETA comments. IF2 at 245-46.
On March 13, 2012, Complainant filed a second EEO complaint, amended March 29, 2012, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. In October 2011, she was excluded as a recipient for the Blue-Ribbon Employee Recognition Program award ceremony;
2. On December 27, 2011, S1B informed her that he would approve five hours of official time for her EEO investigation if she finished a specific work case the same day;
3. On January 5, 2012, she was denied a monetary award for the ILAB project;
4. On January 9, 2012, and January 24, 2012, UR1 was not allowed to assist her in gathering documents for her EEO investigation;
5. On or about February 6, 2012, she was informed that UR1 would only be allowed one hour to assist her with her EEO investigation;
6. On February 9, 2012, S2 requested a current doctor's statement certifying the need for Complainant to self-medicate;
7. On February 9, 2012, due to a one-hour time limit placed on UR1, Complainant could not schedule time to meet with her;
8. On or about February 21, 2012, S1B informed her that her medical statement (regarding self-medication) would not be accepted because it did not include her physician's signature block; and
9. On March 23, 2012, S1B informed her that comments that she had input into ETA were inappropriate.
The Agency accepted claim 3 as a timely discrete act and accepted allegations 1 through 9 as a hostile work environment claim.
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 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.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that her two appeals be consolidated. Complainant contends that she was denied reasonable accommodations and that she was subjected to reprisal. Complainant contends that there was erroneous testimony provided by Agency witnesses. According to Complainant, she withdrew her hearing request for this complaint because the hearing was to take place in an Agency building, which caused Complainant fear.
In response to Complainant's appeal, the Agency contends that it met its obligation to reasonably accommodate Complainant. The Agency also asserts that Complainant failed to establish a hostile work environment claim or pretext for discrimination.
ANALYSIS AND FINDINGS
As these are appeals from decisions issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decisions are 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 (EEO MD-110), at 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").
Procedural Dismissals
As a preliminary matter, we address the two claims that the Agency dismissed from Complainant's first complaint. The Agency dismissed claim 6 of Complainant's first complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state an actionable claim because Complainant was complaining about statements made during the confidential mediation process. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding and that a collateral attack fails to state a claim. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during mediation was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the mediation process. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, and state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, we will affirm the dismissal of this claim.
The Agency dismissed claim 1 of Complainant's first complaint (denial of administrative leave) pursuant to 29 C.F.R. � 1614.107(a)(4). EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency shall dismiss a complaint when the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination. The record in this case does not contain a copy of the negotiated grievance procedures identified by the Agency in its final decision, which purportedly provides for the acceptance of grievances which allege discrimination. In the absence of such evidence, the Commission is unable to ascertain whether complainant filed a formal complaint on a matter that was the subject of a grievance that permits claims of discrimination. See Maisano v. Dep't of the Army, EEOC Appeal No. 01A21980 (June 14, 2002). Accordingly, the agency's dismissal of claim 1 of Complainant's first complaint will be reversed and the matter remanded to the agency for further processing in accordance with this decision and the Order below.
Denial of Official Time
As a further preliminary matter, claims 2, 4, 5, and 7 of Complainant's second complaint concern the denial of a reasonable amount of official time. EEOC Regulation 29 C.F.R. � 1614.605(b) states, in relevant part:
If the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. If the complainant is an employee of the agency and he designates another employee of the agency as his or her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information.
The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. EEO MD-110, Chap. 6 � VII.C. Therefore, an agency may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of that representative's duty hours in any given month, quarter or year. Id.
The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulation and does not require a determination of whether the denial was motivated by discrimination. See Edwards v. U. S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission has held that such a claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., because the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Id.
Given the specific circumstances of this case and the number of illegible documents in the record pertaining to these claims, we cannot discern whether Complainant and her representative were granted an appropriate amount of official time as requested, and for what reasons time may have been denied. See Moorman v. U.S. Postal Serv., EEOC Appeal No. 0120121081 (May 15, 2012) (disputed amount of official time awarded). We will therefore remand this matter to the Agency in accordance with the Order below.
Disparate Treatment
Claim 4 of Complainant's first complaint and claim 3 of Complainant's second complaint are timely disparate treatment allegations. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
With respect to claim 4 of Complainant's first complaint, the Agency has provided a legitimate, nondiscriminatory reason for suspending Complainant for 10 days, which is that she shared C1's personal medical information with C2, in violation of Agency policy. The preponderant evidence in the record does not establish that this explanation is pretext for discrimination.
With respect to claim 3 of Complainant's second complaint, the Agency has provided a legitimate, nondiscriminatory reason for denying Complainant a monetary award for her involvement with the ILAB initiative. Specifically, Complainant was suspended during FY 2011, and employees with conduct or performance issues were ineligible for the award. Although Complainant argues that this was an after-the-fact condition, the preponderance of the evidence in the record does not establish that Complainant was singled out as ineligible, as her coworker who was on a PIP also did not receive an award. We find that the preponderant evidence in the record does not establish that this proffered reason is pretext for discrimination. Accordingly, we will affirm the Agency's final decisions with respect to these disparate treatment claims.
Reprisal
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation at II.B.
Given the importance of maintaining "unfettered access to [the] statutory remedial mechanisms" in the anti-retaliation provisions in Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee by saying "What goes around, comes around" when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint "as a friend," even if intended innocently, is an adverse action. Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office).
Here, Complainant alleged that S1B told her that her disability retirement application would be fast-tracked if she withdrew her EEO complaint. However, S1B denied making such a statement. We note that this allegation concerns conflicts in witness testimony. Complainant did not produce any additional evidence to support her assertions. Moreover, Complainant requested a FAD from the Agency; as a result, we do not have the benefit of an Administrative Judge's credibility determinations of the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a "he said, she said" situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Accordingly, we find that Complainant failed to establish by a preponderance of the evidence that she was subjected to reprisal and will affirm the Agency's final decision with respect to this claim.
Harassment
The majority of the incidents in Complainant's first complaint and all of the incidents in Complainant's second complaint were accepted as a hostile work environment claim. 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
With respect to element 5, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Here, the preponderance of the evidence in the record does not establish that Complainant was subjected to harassment. There is no connection between the many instances of alleged harassment and Complainant's disability or prior protected activity. For example, there is no evident connection between S3 telling Complainant that her husband could not be present on the premises and any protected factor. Additionally, there is no connection between Complainant being denied a blue ribbon and Complainant's prior protected activity. According to the record, Complainant was not given a blue ribbon because she did not earn six consecutive gold stars. Complainant was awarded three gold stars, but the preponderance of the evidence in the record establishes that she was not recognized at the awards ceremony in February 2012 because she was not present. Therefore, we will affirm the portions of the Agency's final decisions finding that Complainant did not establish that she was subjected to harassment.
Denial of Reasonable Accommodation
Claim 2 of Complainant's first complaint alleges the denial of a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). "The term 'qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m). 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. 29 C.F.R. �� 1630.2(c) and (p). Here, the Agency does not dispute that Complainant is a qualified individual with a disability; instead, the Agency disputes that it failed to provide her with a reasonable accommodation.
In the FAD, the Agency determined that it satisfied its obligation to provide Complainant with an effective reasonable accommodation when it stopped assigning her cases involving PTSD and trauma and changed the location of her cubicle in June 2011. However, in October 2011, S3 stated that she was denying Complainant's request for full-time telework because of her performance and conduct issues, not because Complainant had already been provided with an effective accommodation. The fact that Complainant's performance issues continued between June 2011 and October 2011 suggests that the provided accommodations were not effective. Moreover, the Agency's explanations for denying Complainant's requested accommodation are somewhat inconsistent.
Federal employers must modify their policies regarding where work is performed if needed as a reasonable accommodation if the accommodation would be effective and would not cause an undue hardship. See Enforcement Guidance, Question 34. The Enforcement Guidance notes, "An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. . . . Nor is an employer required to lower production standards -- whether qualitative or quantitative -- that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard." Id.
In The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, Question 7 (Jan. 20, 2011) (available at https://www.eeoc.gov/facts/performance-conduct.html), the Commission noted, "An employer may not withdraw a reasonable accommodation as punishment for the unsatisfactory performance rating. Simply withdrawing the telework arrangement or a modified schedule is no different than discontinuing an employee's use of a sign language interpreter or assistive technology as reasonable accommodations." Similarly, an employer may not withhold a reasonable accommodation, such as telework, from an employee with a disability as a punishment. The Commission also noted that if an accommodation is not assisting an employee in improving his performance as intended, "the employer and employee may need to explore whether any changes would make the accommodation effective, whether an additional accommodation is needed, or whether the original accommodation should be withdrawn and another should be substituted." Id. Where, as here, the accommodation appears ineffective, the employer and employee should reexamine the reasonable accommodation.
Complainant's request to telework was denied by S3 because Complainant's "conduct and performance [we]re not consistent with Work at Home guidelines." IF1 at 479. Specifically, Complainant recently had been suspended for sharing C1's confidential medical information, and Complainant was not meeting the productivity standards for her position. However, according to Complainant, she was not meeting productivity standards because she had not been provided with an effective accommodation. We previously have noted:
[T]he ADA's reasonable accommodation obligation, which includes modifying workplace policies, might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home. For example, an employer may generally require that employees work at least one year before they are eligible to participate in a telework program. If a new employee needs to work at home because of a disability, and the job can be performed at home, then an employer may have to waive its one-year rule for this individual.
Work at Home/Telework as a Reasonable Accommodation, Question 1 (Oct. 27, 2005) (available at https://www.eeoc.gov/facts/telework.html).
Accordingly, based on the record, the Agency failed to provide Complainant with a reasonable accommodation when the Agency failed to consider whether the telework guidelines could be modified as a reasonable accommodation, or whether Complainant was eligible for alternative telework arrangements as a reasonable accommodation. For example, the Agency could have afforded Complainant a trial period of no less than 30 days to determine whether full-time telework was an effective accommodation that allowed Complainant to meet her productivity standards and whether her conduct continued to be an issue. If the accommodation was ineffective after the trial period, then the Agency would not have to offer full-time telework to Complainant, as it would not have been an effective accommodation. Moreover, there is no evidence in the record that the Agency undertook an individualized assessment that providing Complainant with the effective reasonable accommodation would have caused the Agency an undue hardship. Although the Agency cited Complainant's productivity and conduct as the reasons for denying the requested accommodation, the Agency has not established that providing Complainant with full-time telework would have imposed an undue hardship on its operations. We therefore find that Complainant met her burden that the Agency failed to provide her with a reasonable accommodation. Accordingly, we will reverse the Agency's final decision with respect to the denial of a reasonable accommodation, and the Agency shall comply with the Order below.
Impermissible Medical Inquiry
On February 9, 2012, Complainant was asked to provide additional medical documentation regarding her need to self-medicate her PTSD for up to three days at a time. Upon review, we find that the agency should not have required Complainant to provide additional medical documentation regarding her PTSD. The Commission has stated that there are situations when an employer cannot ask for documentation in response to a request for reasonable accommodation. It is when: (1) both the disability and the need for the reasonable accommodation are obvious; or (2) the individual has already provided the employer sufficient information to substantiate that she has a disability and needs the reasonable accommodation requested. See Enforcement Guidance at Question 8.
In the case at hand, the record clearly shows that Complainant had provided sufficient information to substantiate her disability. Further, based on the limitations indicated on the medical documentation, we find that Complainant also has provided sufficient information to substantiate the need for the accommodation of self-medicating her PTSD for up to three days at a time. The August 2011 medical documentation indicated that Complainant's PTSD was chronic and likely permanent. Under the circumstances of this case, there was a history of Complainant's communication with the Agency regarding her medical condition and restrictions and the Agency was fully apprised of the permanent nature of the disability and restrictions. Accordingly, it was incorrect to seek more documentation to continue accommodating Complainant's restrictions. See, e.g., Heard v. Dep't of Treasury, EEOC Appeal No. 0120110751 (Apr. 19, 2013) (finding that complainant did not have to submit additional medical documentation for accommodation of a parking spot when complainant's doctor had informed the agency that complainant's disability and restrictions were permanent). Therefore, we will reverse the Agency's finding that Complainant was not subjected to an unlawful disability inquiry when the Agency requested additional medical documentation in February 2012.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal of claim 1 of Complainant's first complaint, VACATE the Agency's determination that Complainant did not establish that she was subjected to discrimination when she and her representative were denied official time with respect to claims 2, 4, 5, and 7 of Complainant's second complaint, and REVERSE the Agency's determination that the preponderance of the evidence did not establish that Complainant was subjected to unlawful discrimination in violation of the Rehabilitation Act when she was denied a reasonable accommodation and required to submit updated medical documentation; we REMAND these matters for Agency action in compliance with the Order of the Commission below. We AFFIRM the Agency's final decisions with respect to all remaining claims.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall supplement the record with a copy of the negotiated grievance procedures, specifically including the relevant portion of the agreement relating to whether grievants have the right to raise claims of discriminatory treatment under the negotiated grievance procedure. Within 30 calendar days of the date this decision is issued, the Agency shall either issue a new decision dismissing claim 1 of Complainant's first complaint or issue a letter to Complainant accepting the claim for investigation. The Agency shall submit a copy of the decision dismissing the claim or a copy of the letter to Complainant accepting the claim for investigation, to the Compliance Officer as referenced herein.
2. Regarding claims 2, 4, 5, and 7 of Complainant's second complaint, with respect to the alleged denial of official time, within ninety (90) calendar days of the date this decision is issued, the Agency shall investigate whether Complainant was provided a reasonable amount of official time. The Agency shall include in the record the following information: legible documentation showing how much time was requested; for what stated purpose the time was requested; how much time was granted, if any; and the justification for the denial of any requested time. The Agency shall notify Complainant of the opportunity to place into the record any evidence supporting her claim that she was denied a reasonable amount of official time. Thereafter, the Agency shall issue a final decision as to whether Complainant was denied a reasonable amount of official time, with appeal rights to the Commission. A copy of the report of investigation and the final decision on official time shall be sent to the Compliance Officer as referenced below.
3. If Complainant is still employed by the Agency, the Agency shall offer Complainant full-time telework as a reasonable accommodation for a trial period of not less than 30 calendar days, within 30 calendar days of the date this decision is issued. If the Agency terminates Complainant's reasonable accommodation of full-time telework after the trial period, it shall set forth in a compliance report the reason(s).
4. Within 90 days of the date this decision is issued, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint and determine the amount of compensatory damages to which Complainant is entitled. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below. Within 30 days of its determination of the amount of compensatory damages owed to Complainant, the Agency shall pay Complainant that amount.
5. Within 90 days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person training to all Agency employees at the Agency's Regional Office in Indianapolis, Indiana responsible for making the impermissible medical inquiry to Complainant and/or denying Complainant an effective reasonable accommodation. The training shall concern the Rehabilitation Act with an emphasis on reasonable accommodation and the Agency's duties to ensure that similar violations do not occur.
6. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the individuals, still working for the Agency, who were responsible for making the impermissible medical inquiry to Complainant and/or denying Complainant an effective reasonable accommodation. If the agency decides to take disciplinary action, it shall identify in a compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) or its decision not to impose discipline. If the responsible individuals are no longer employed by the Agency, the Agency shall furnish evidence of their dates of separation.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indication that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Indianapolis, Indiana Regional Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
01/26/18
__________________
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 The investigative file for Appeal No. 0120140815 will be referred to as IF1, and the investigative file for Appeal No. 0120142049 will be referred to as IF2.
3 In the interest of economy, the Commission exercises its discretion to consolidate complaint's appeals. See 29 C.F.R. � 1614.606.
4 Complainant's prior protected activity consisted of contacting an EEO Counselor on May 27, 2011. Complainant withdrew this informal EEO complaint on May 31, 2011.
5 This claim was processed by the Agency as a mixed-case constructive discharge claim, and the FAD gave Complainant appeal rights to the Merit Systems Protection Board (MSPB) for this claim. There is no evidence that Complainant appealed this claim to the MSPB. Accordingly, this claim is not properly before us on appeal, but may be considered as background.
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2
01-2014-2049
19
0120140815 and 0120142049