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

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022002628 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claire L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002628 Hearing No. 471-2020-00100X Agency No. 200J-0553-2020102976 DECISION On April 8, 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 March 10, 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 Registered Nurse II at the Agency’s Office of Community Care and Business Practice (Business Practice), John Dingell Medical Center in Detroit, Michigan. Chief of Business Practice (Chief) was Complainant’s second-level supervisor. Report of Investigation (ROI) at 74. On April 8, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of disability (physical) and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 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. 2022002628 2 a) While teleworking since February 2020, Complainant is continually required to call in and provide logs of her productivity, coworkers monitor her, and she is repeatedly required to provide medical documentation for her known disability; b) On March 3, 2020, Chief said she was “incompetent” and that coworkers did not appreciate having to cover her absences; c) On April 8, 2020, Complainant was given a Proposed Reprimand; and d) Since March 24, 2020, she has been denied a reasonable accommodation. In claim (a), due to the absence of a Manager in the Business Practices section, employees were rotated to serve as acting Manager. As a result of the rotation, Complainant claimed that she had to repeatedly provide medical information to the rotating acting Managers whenever she requested to use LWOP or AL. ROI at 85. With regard to work logs, Chief said that all nurses are required to submit productivity logs. ROI at 95. Complainant disputes that all nurses are required to submit the logs. In claim (b), Complainant alleged that, on March 3, 2020, Chief said she was “incompetent.” ROI at 77. Chief denied making such a statement but said when Complainant said she completed her own work, Chief said that that was not true because other nurses were required to cover Complainant’s services each time Complainant was not on duty. ROI at 96. Concerning claim (c), on April 6, 2020, Complainant was issued a proposed Letter of Reprimand due to numerous AWOL charges and failure to obtain her Basic Life Support (BLS) certification card which had expired and was required of all nurses. Relevant to claim (d), Complainant has avascular necrosis of the hip limiting her ability to walk, sit, and drive. ROI at 75 and 90. On or about February 3, 2020, Complainant submitted a request for a reasonable accommodation to Human Resource Specialist (HR Specialist) in the form of use of eight to twenty-four hours of LWOP per week. ROI at 80, 87, 90, 107. Chief denied Complainant’s requested reasonable accommodation citing that it was not an effective accommodation. ROI at 87. Chief explained that Complainant’s LWOP request provided no prediction of specific days off, making it impossible to predict the workload. ROI at 88. According to the Chief, this is further complicated because the Agency was understaffed by six nurses leaving the department without the staffing to resolve last minute emergencies. ROI at 88, 109. Chief further explained that the department was under an action plan due to the backlog of cases which was in part due to Complainant’s prior absences. ROI at 88. Chief said that the department had over 1,000 consults to review and schedule for patient care delivery and the workload was essential for ensuring no harm was done to patients due to a delay in care. ROI at 101. Chief offered an alternative accommodation in the form of telework two days per week, with three days per week at her duty station. ROI at 76, 87. Complainant refused the offered reasonable accommodation. ROI at 76, 89, 108. 2022002628 3 On March 18, 2020, Complainant requested that Associate Director, Chief’s immediate supervisor, review her reasonable accommodation request. ROI at 81, 85, 89, 201. Complainant received an email that Associate Director reviewed the request and concurred with Chief. ROI at 81, 89. On March 24, 2020, HR Specialist emailed Complainant; HR Specialist explained that an Agency Official, other than Chief, had “carefully considered” Complainant’s request and determined that the accommodation of teleworking two days per week was effective. ROI at 204. That same day, Complainant accepted the Agency’s offered reasonable accommodation without modification. ROI at 203-4. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 21, 2021, motion for a decision without a hearing and issued a decision without a hearing on February 25, 2022. The AJ found that the Agency’s actions in claim (d) did not violate the Rehabilitation Act. The AJ determined that the Agency provided Complainant with an alternative, effective accommodation in the form of telework. With regard to the claims (a) - (c), the AJ found that these events, either singularly or cumulatively, were not sufficiently severe or pervasive to rise to the level of harassment. The AJ noted that the events alleged constituted normal disputes in the workplace regarding oversite and personnel issues. Furthermore, the AJ determined Complainant failed to demonstrate that the events occurred because of her protected bases. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ’s summary judgment was improper because there remain genuine disputes of material fact. Complainant’s counsel specifically proffers that the disagreement over whether Chief called Complainant incompetent was a dispute of material fact. As such, Complainant’s attorney alleges that the AJ “improperly engaged in fact-finding” in asserting that there was no dispute of material fact before them. Complainant further argues that the issues presented were not discrete. Rather, they were issues of ongoing harassment by Chief. Complainant asserts that Complainant’s treatment rose to the severe and pervasive standard. Finally, Complainant asserts that the Agency has not provided sufficient evidence of undue hardship with regard to her request for accommodation. The Agency asserts that the AJ’s decision was proper and should stand. 2022002628 4 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022002628 5 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. 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. 2022002628 6 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 6, 2023 Date