[Redacted], Ceola K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021000670 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ceola K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021000670 Hearing No. 443-2016-00129X Agency No. 200J-01AL-2015103449 DECISION On October 30, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Procurement Technician, GS-7, in the Agency’s Network 23 Contracting Office (NCO) in its Minneapolis, Minnesota facility. On July 29, 2015, Complainant filed an EEO complaint alleging, as amended, the Agency discriminated against her on the bases of race (Native American), national origin (Central America), color (Brown), sex (female), disability (Fibromyalgia, vertigo, Post Traumatic Stress Disorder, Depression, Arthritis, shoulder/neck/back injuries, facial paralysis, diabetes, and 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. 2021000670 2 hypertension), and age (52) when, between April 2015 and January 2016, she was subjected to hostile work environment harassment and disparate treatment. Complainant alleged that she was excluded from meetings and communications; denied training; was subjected to derogatory comments, accusations, and questioning; denied overtime; denied administrative leave, advanced sick leave, and leave without pay in lieu of absence without leave (AWOL); negatively impacted with regard to her terms and conditions of employment such as breaks and procedures; issued disciplinary actions such as reprimands, suspensions, and threats of removal; issued low performance appraisals and threats of performance improvement plans; had her official time restricted to work with an investigator and the union on her opposition to disciplinary action; and bullied and stalked. Further, Complainant alleged that she was denied reasonable accommodation for her disabilities when: (1) since May 7, 2015, she was consistently questioned about her need for onsite parking, (2) since June 12, 2015, Complainant’s broken headset was not replaced, (3) on August 18, 2015, she was denied her request for reassignment, (4) on September 28, 2015, her request was denied to prohibit direct contact with her supervisor without a neutral third party present,2 (5) since December 9, 2015, her broken ergonomic keyboard was not replaced, and (6) on December 24, 2015, she was denied full-time telework.3 Following an Agency EEO investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. The assigned AJ held a hearing regarding denial of reasonable accommodation (incidents (1), (4) and (6)) solely, and found that no genuine issues of material fact existed for the remaining matters so summary judgment was appropriate there. On July 1, 2020, the AJ issued a decision and found the following. Complainant has established, by a preponderance of the evidence, that she was subject to a failure to accommodate, when, in December 2015, the Agency denied her request for fulltime telework, and instead, offered her the alternate accommodation of flexible use of leave. For the remainder of the issues, Complainant has failed to establish she was subject to failure to accommodate, discrimination or reprisal. Specifically, the AJ found, in December 2015, in lieu of full-time telework, the Agency granted Complainant flexible leave usage in the morning and that was not effective as an alternative accommodation. Notably, during the hearing, Complainant stated, “I have a hard time getting up in the morning . . . mornings are the difficult time to get up and to move around, and also it’s just easier to sometimes be in your home setting than at work.” 2 The record reveals that Complainant subsequently withdrew this accommodation request. 3 We note that we consolidated claims as appropriate for efficiency and that numbering herein is different than that identified by the Agency or AJ. 2021000670 3 The AJ noted, in about May 2016, the Agency offered Complainant full-time telework and she elected to never use it. The AJ found discrimination between the Agency’s initial denial of full- time telework (December 2015) until it approved her full-time telework (approximately May 2016). In a September 9, 2020 bench decision following a damages hearing, the AJ found that Complainant’s testimony failed to establish that nonpecuniary, compensatory damages were appropriate. The AJ found that the record showed that the Agency acted in good faith when it offered Complainant alternative accommodations and that Complainant did not utilize the alternatives offered. Notably, at the damages hearing, Complainant stated that she did not utilize the liberal morning leave granted because she did not have any accrued leave to use. Further, Complainant stated that she did not utilize the two days per pay period telework plus ten days ad hoc per year telework offered by the Agency because it was insufficient to make a difference and setup for telework was a lot of work and that amount of telework was not worth it. In addition, Complainant stated that she did not want to deal with micromanaging by her supervisor with telework. The AJ stated, “There is no credible evidence . . . that the act in question, granting leave rather than telework for this relatively short period, caused or aggravated any disabilities or conditions in a manner that a damages award would be appropriate.” On October 1, 2020, the AJ issued an Order Entering Judgment to finalize the above decisions. The AJ noted that Complainant had an opportunity to file an attorney’s fees petition but did not do so and no fees were awarded. The instant appeal from Complainant followed.4 On appeal, Complainant stated that the hearing was unfair and that a specific witness, her sister, was not allowed to testify about managerial harassment as she requested. Complainant alleged that Agency management threatened to charge her with AWOL regardless of medical documentation for her October 28, 2015 sick leave and that management would not accept a leave request from her sister when Complainant was hospitalized. Complainant stated that she has a permanent state of Minnesota parking placard for disabled persons, which is valid for six years. Complainant alleged that management saw her parking placard and still threatened to have her car towed from an onsite parking lot. Complainant alleged that the Agency improperly failed to recognize the state parking placard and requested additional medical documentation from Complainant. Complainant stated that the AJ prevented her from sharing additional information at hearing. In its opposition to Complainant’s appeal, the Agency accepted the AJ’s decision as its final action. Also, the Agency stated Complainant withdrew her sister as a witness on her own and she failed to show that said witness would provide evidence to support her contentions. 4 The Agency did not issue a final agency decision following the AJ’s decision. Pursuant to 29 C.F.R. § 1614.109(i), when the agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with 1614.110, then the decision of the AJ shall become the final action of the agency. 2021000670 4 Regarding Complainant’s allegations of disparate treatment and harassment, the Agency stated, “[Complainant’s] relationships in the workplace were contentious.” The Agency stated that it issued disciplinary actions, performance counseling, and conducted investigations following complaints from Complainant’s coworkers. In addition, the Agency stated that there were concerns with Complainant’s attendance, leave, overtime, and training. Summarily, the Agency stated that the its actions were not based on discriminatory motives. Further, the Agency stated that it asked Complainant about her need for onsite parking because her medical documentation did not specify a distance she could walk and it provided Complainant parking at an alternate lot about two blocks (.12 of a mile) away, which was closer than the distance Complainant walked for lunch. The Agency also noted that Complainant used the stairs at work rather than the elevator. The Agency stated that it requested additional information when Complainant rejected the alternate accommodations it approved and to determine options that might be effective. The Agency asked that the Commission accept the AJ’s decision and dismiss Complainant’s appeal. The Agency stated that Complainant made numerous reasonable accommodation requests, most of which were granted, or an alternate accommodation provided. The Agency stated that Complainant failed to provide a connection between its provision of liberal morning leave (rather than full time telework) and an entitlement to compensatory damages. The Agency stated that it acted in good faith in accommodating Complainant and she did not utilize accommodations it granted. ANALYSIS AND FINDINGS 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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not 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. 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 testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Here, the Agency does not dispute the AJ’s finding that it violated the Rehabilitation Act when it failed to provide Complainant with full time telework and allowed flexible morning leave instead. However, the Agency states that it operated in good faith to provide Complainant reasonable accommodations as requested and viable alternative options to determine what would be effective. Complainant does not dispute the finding of denial of reasonable accommodation either. 2021000670 5 On appeal, Complainant disputes the fairness of the hearing for submission of evidence and alleges that a witness, her sister, would have provided evidence regarding managerial harassment. Complainant acknowledged that she did not utilize part time or full time telework as allowed by the Agency. 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 accommodations 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). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). We note that, under the Rehabilitation Act, it is anticipated that, to the extent necessary, the employer will engage in the interactive process with the individual requesting accommodation to clarify the individual’s needs and identify the appropriate reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). However, failure to engage in the interactive process does not constitute a violation of the Rehabilitation Act. Employer liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the individual with a disability to perform the essential functions of the job. Broussard v. U.S. Postal Service, EEOC Appeal No. 01997106 (September 13, 2002) (although agency cannot be held liable solely for failure to engage in interactive process, it can be held liable where failure to engage in process resulted in failure to provide reasonable accommodation), request to recon. denied, EEOC Request No. 05A30114 (January 9, 2003). Similarly, employer liability may be avoided where failure of the requesting individual to engage in the interactive process results in the parties being unable to identify an effective accommodation. See Estate of William K. Taylor, Jr. v. Dep’t of Homeland Security, EEOC Appeal No. 0120090482 (June 20, 2013) (complainant’s failure to provide requested documentation caused failure to receive possible accommodation), request to recon. denied, EEOC Request No. 0520130591 (January 16, 2014). In a September 9, 2020 bench decision, the assigned AJ found that Complainant’s testimony failed to establish that nonpecuniary, compensatory damages were appropriate. The AJ found that the record showed that the Agency acted in good faith when it offered Complainant alternative accommodations and that Complainant did not utilize the alternatives offered. At the damages hearing, Complainant stated that she did not utilize the liberal morning leave granted because she did not have any accrued leave to use; the two days per pay period telework plus ten days ad hoc per year telework offered by the Agency were insufficient to make a difference; setup for telework was a lot of work and the amount of telework granted was not worth it; and she did not want to deal with micromanaging by her supervisor under full time telework. 2021000670 6 The Agency stated that it offered alternative accommodations for Complainant to try to determine what would be effective. The AJ stated, “There is no credible evidence . . . that the act in question, granting leave rather than telework for this relatively short period, caused or aggravated any disabilities or conditions in a manner that a damages award would be appropriate.” We agree. We also agree that Complainant did not present entitlement to attorney’s fees and did not argue it on appeal. To the extent that Complainant alleged disparate treatment and harassment on appeal, we agree with the AJ that Complainant failed to show the Agency’s actions were based on discriminatory motives. Further, we find the AJ did not err in his findings and issuance of a summary judgment decision on the non-reasonable accommodation matters. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency action. 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 2021000670 7 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. 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. § 1614.604I. 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. 2021000670 8 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 September 20, 2022 Date