[Redacted], Breanne H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2022002652 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002652 Hearing No. 490-2019-00105X Agency No. 200I-0731-2018105569 DECISION On April 13, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 7, 2022, final order concerning her equal employment opportunity (EEO) complaint 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 AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Management Specialist at the Agency’s Consolidated Patient Account Center (CPAC) in Smyrna, TN. On October 24, 2018, Complainant filed an EEO complaint, which was later amended, alleging that the Agency subjected her to a hostile work environment and discriminated against her on the basis of disability (mental) when: 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. 2022002652 2 1. Complainant made a request for reasonable accommodation of: a. reporting to a different supervisor; b. additional teleworking days; and/or c. not being required to meet with the Supervisor in person one-on-one or in small groups; 2. the Agency failed to engage in the interactive process and/or that the Agency failed to make a reasonable accommodation; 3. on June 22, 2018, she was issued a written counseling; and 4. from February 10, 2017, to November 15, 2018, the Agency engaged in the conduct set forth in the Report of Investigation (ROI) at 47-50. 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. On February 10, 2020, the Agency submitted a Motion for Summary Judgment. On April 4, 2022, the AJ issued his decision. Regarding Complainant’s reasonable accommodation raised in claims 1 and 2, the AJ noted that Complainant’s reasonable accommodation requests were centered around having little to no interaction with the Supervisor. The AJ noted that while an agency may have an obligation to alter supervisory methods as an accommodation, there was no evidence that any modification, short of replacing the Supervisor, which the law does not require, would have enabled Complainant to perform her job. Additionally, the record demonstrated that the Agency engaged in the interactive process with Complainant and provided numerous reasonable accommodations, including: an increase in telework days; the ability to communicate with a different supervising official; and an ergonomic chair. Agency Supplemental Motion (ASM) at 70-71; 94. ROI at 81. Regarding Complainant’s disparate treatment raised in claim 3, the AJ determined that the counseling was based on Complainant’s acknowledged refusal to attend an in-person meeting despite being in the office and having been previously informed that if she was in the office, she would be expected to attend in person. ROI at 45; 82; 96. Regarding Complainant’s hostile work environment claim, the AJ acknowledged that Complainant’s situation was highly unpleasant, and that Complainant had a very difficult relationship with the Supervisor. ASM at 38-39; 50. The AJ repeatedly stated that his decision was not meant to trivialize the emotional difficulty that Complainant faced working with the Supervisor. However, the AJ stated that the type of conduct complained of, while frustrating, is not the type that makes up an actionable hostile work environment claim. The AJ noted that Complainant acknowledged that other employees had similar difficulties with the Supervisor. ASM at 38-39; 95. 2022002652 3 Ultimately, the AJ determined that Complainant failed to raise any evidence from which a reasonable factfinder could find that she was discriminated against or harassed based on her disability, or that the Agency failed to reasonably accommodate her. The AJ determined that there was no genuine issue as to any material fact and the Agency was entitled to judgment as a matter of law on Complainant’s complaint. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that summary judgment was inappropriate as there are genuine issues of material fact in dispute. Complainant asserts that a hearing is necessary in order to resolve a number of credibility disputes. For example, Complainant acknowledges that the Supervisor was aggressive to other employees but maintains that the Supervisor was especially harsh to her, which impacted her work and accommodation requests. Complainant requests a remand for a hearing. In response, the Agency argues that Complainant has failed to articulate any legal or factual error sufficient to warrant reversal of the Agency’s decision adopting the AJ’s finding of no discrimination. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. 2022002652 4 Reasonable Accommodation - Claims 1 and 2 Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). With respect to Complainant’s denial of reasonable accommodation claim, we find that, despite Complainant’s claim to the contrary, we agree with the AJ that the Agency was involved in the interactive process. Complainant made several reasonable accommodation requests which resulted in an increase in telework days per pay period; the ability to communicate with a different supervising official; and an ergonomic chair. Agency Supplemental Motion (ASM) at 70-71; 94. ROI at 81. Complainant felt the accommodations were insufficient and ineffective as detailed in her responses. It is the Commission’s position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9; See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Ques. 9 (revised Oct. 17, 2002); Polen v. Dep’t of Def., EEOC Appeal No. 01970984 (Jan. 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, she is not entitled to the accommodation of her choice. In this matter, the Supervisor remained Complainant’s supervisor, but she was allowed to communicate to the Supervisor through another management official. This method was not Complainant’s preferred accommodation which was to entirely remove the Supervisor from her chain of command. We note that “[a]n 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, EEOC No. 915.002, Question 33 (Oct. 17, 2002). Therefore, we find that the Agency provided Complainant with alternative reasonable accommodations which were effective. Based on the record, we find that Complainant has not established the Agency violated the Rehabilitation Act. Disparate Treatment - Claim 3 Upon careful review of the record, we find that the AJ’s decision accurately recounted the relevant material facts. The decision also correctly identified the legal standard for Complainant to prove that she was subjected to disparate treatment based on her disability, as set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 2022002652 5 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for its actions 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. Affs. v. Burdine, 450 U.S. 248, 256 (1981). Assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for issuing the counseling letter. Specifically, Complainant was instructed to attend a meeting in person if she was onsite that day. While Complainant was onsite the day in question, she chose to telephone into the meeting instead of attending in person as instructed. ROI at 96. Without proof of a demonstrably discriminatory motive, we will not second-guess the Agency's personnel decisions. see Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5. 2007); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason [was discriminatory]”). Therefore, we find that the Agency provided legitimate, nondiscriminatory reasons for its action and that Complainant filed to show that the Agency’s reasons were pretext for discrimination. Hostile Work Environment - Claim 4 Regarding the allegation of a hostile work environment, as to claims 1 - 3 addressed above, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As to claim 4, to establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class or engaged in prior protected activity; (2) she was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on the protected class or prior protected activity; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. With respect to element (5), an agency 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 Indus. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). In support of her claim, Complainant provided a variety of incidents to demonstrate a hostile work environment, such as: having false reports submitted by the Supervisor which adversely affected productivity scores; having her easier claims being taken away and thus being left with more difficult work; being demeaned by the Supervisor; and generally being sabotaged at work. ROI at 47-50. Complainant provided details in the investigation to support her claim; however, we find that there is no evidence to causally connect such claims to Complainant’s protected basis. 2022002652 6 Furthermore, we find that the examples provided, taken individually or as whole, do not demonstrate evidence of a pervasively hostile work environment. The Commission has long recognized that ordinary supervisory duties including general management of work, and providing job-related counsel, are all part of normal operational management. See Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). We conclude that Complainant failed to establish that she was subjected to disability-based harassment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022002652 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 14, 2023 Date