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

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2020004448 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004448 Hearing No. 520-2019-00491X Agency No. 200H-0528-2018103079 DECISION On August 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 21, 2020 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant worked as a Lead Medical Support Assistant (MSA), GS-0679-07, within the Western New York Health Care System in Buffalo, New York. On July 6, 2018, Complainant filed an EEO complaint in which she alleged that the Agency2 discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), disability 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 Complainant identified three Health Administration Services Chiefs (hereinafter referred to as S1a, S1b, and S1c) who served sequentially as her first-line supervisor between October 2016 and February 2019. S1a was Complainant’s supervisor until January 5, 2018. S1b served as Complainant’s supervisor in an acting capacity between January and June of 2018. S1c had been Complainant’s supervisor since July 2018. She named S1a as being primarily responsible for incidents (1) through (7), S1b as being primarily responsible for incidents (8) through (20), and S1c as being primarily responsible for incidents (21) through (30). 2020004448 2 (major depression, general anxiety disorder, post-traumatic stress syndrome), and reprisal (prior protected EEO activity) when: 1. From October 2016 through April 2017, 2017, Complainant worked without a position description; 2. On April 7, 2017, S1a told Complainant to either accept her working terms (position, workload, salary) or be demoted to a lower grade; 3. From July through October 2017, Complainant received multiple emails about work assignments she missed while on Family and Medical Leave Act (FMLA) leave; 4. On October 20, 2017, Complainant’s work assignments were increased to include being given the duties of Talent Management System (TMS) Administrator; 5. In October 2017, Complainant was required to provide onsite training while on FMLA; 6. From November 2017 to February 2018, management failed to respond to Complainant’s concerns about her TMS responsibilities; 7. On December 13, 2017, a Medical Support Assistant Supervisor (MSAS) spoke to Complainant in a disrespectful and demeaning manner; 8. On unspecified dates in January 2018, S1b told Complainant that her absences were adversely impacting the service’s ability to provide cohesive training, blamed Complainant for communications problems, and told Complainant that she failed to complete audits for October 2017 while working part-time on FMLA; 9. On unspecified dates in January and February 2018, Complainant was told that no changes would be made to her position description, functional statement, or grade; 10. On January 18, 2018, S1b failed to acknowledge or respond to Complainant’s verbal request to continue teleworking as a reasonable accommodation; 11. On January 23, 2018, S1b ended Complainant’s telework agreement; 12. On unspecified dates in February 2018, S1b accused Complainant of not completing assigned audits while teleworking, failing to communicate with staff managers, and failing to perform other assigned duties; 13. On unspecified dates in February 2018, the Agency failed to provide Complainant’s medical provider with needed reasonable accommodation forms, and referenced 2020004448 3 Complainant’s reasonable accommodation request in an email when other supervisors were copied; 14. On an unspecified date in February 2018, S1b failed to appear for a scheduled reasonable accommodation meeting; 15. On April 1, 2018, the Agency removed Complainant’s telework agreement, denied her telework as a reasonable accommodation, and offered her a private office and/or reassignment/demotion to a different position; 16. On April 4 and 11, 2018, the Agency denied Complainant’s request for a reasonable accommodation and only offered Complainant accommodation if she would agree to a lower-graded position, attempting to downgrade her present grade; 17. On May 1, 2018, Complainant was informed that her reasonable accommodation request would be closed if she did not accept an accommodation that would result in demotion; 18. On May 8, 2018, Complainant’s concerns about excessive workload were ignored and her workload was increased; 19. On May 11, 2018, S1b issued Complainant two written counseling letters regarding job performance, which were later issued as reprimands on May 16, 2018; 20. On June 22, 2018, S1b failed to provide Human Resources with documentation for Complainant’s advanced sick leave request; 21. From July 10 through July 20, 2018, Complainant was charged with absence without leave (AWOL); 22. On July 24, 2018, Complainant was told she needed to re-apply for a reasonable accommodation; 23. On July 24, 2018, the Agency improperly shared Complainant’s medical diagnosis with her supervisor. 24. From July 23 through August 3, 2018, Complainant was charged with AWOL; 25. On August 13, 2018, S1c denied Complainant’s reasonable accommodation request; 26. On August 15, 2018, as part of Complainant’s reasonable accommodation, the Agency proposed that Complainant be subject to performance reviews every 60 days as opposed to quarterly; 2020004448 4 27. On August 15, 2018, the Agency denied Complainant’s reasonable accommodation request to telework two and three days per week on an alternating schedule and offered her telework for two days per week; 28. From August 15, 2018 through September 11, 2018, the Agency blocked Complainant’s computer access; 29. On October 11, 2018, Complainant was issued a position description (PD) she felt did not reflect her level of duties; and 30. On February 19, 2019, Complainant was issued a fully successful rating which was lower than her 2017 rating of outstanding. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but subsequently withdrew her request. In accordance with Complainant’s request, the AJ dismissed Complainant’s hearing request and the Agency issued a final decision. In the decision, the Agency concluded that Complainant failed to show that the Agency discriminated or retaliated against her as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is 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, at Chapter 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”). Denial of Reasonable Accommodation - Incidents (10), (14) through (17), (22), (25) through (27) An Agency 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 accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that he 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship 2020004448 5 under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). We find at the outset that Complainant is a qualified individual with a disability. IR1 159-64. We must now determine whether the Agency fulfilled its obligation to offer her a reasonable accommodation. The Commission notes that while Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019). Furthermore, in providing Complainant with a reasonable accommodation, the Agency is not required to eliminate the essential functions of the position she encumbers. Alana W. v. Soc. Sec. Admin., EEOC Appeal No. 0120180037 (Apr. 17, 2019). Complainant had been in telework status and the Human Resources Office had concurred with S1b’s decision to allow her to remain in that status until she submitted updated reasonable accommodation paperwork. Based upon documentation from Complainant’s physician that she needed a private office, the Agency offered her a private office, but she declined the offer. IR 221-23, 236, 241-45. When S1c took over, she decided to allow Complainant to telework on a part-time basis in August 2018. AE 53. 56, 57, 58, 59. Based upon the evidentiary record, we find that Complainant has not established that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disclosure of Confidential Medical Information - Incidents (13), (23) The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c); Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for recon. den'd EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). As to incident (13), S1b and Complainant were communicating back and forth by email about various topics and there was a reference in the string that Complainant had requested a reasonable accommodation. At one point, Complainant asked S1b a question that S1b could not answer, and he forwarded the question to another supervisor. The entire email thread was included, but there was no medical information contained therein. S1b stated that he self-reported the incident to the Privacy Officer who determined that no disclosures of any privileged information in violation of the Privacy Act or the Health Insurance Portability and Accountability Act occurred. IR 222, 240. Regarding incident (23), in a July 4, 2018 email to S1c, Complainant inquired about the status of her request for advanced sick leave and attached a note from her physician. There are no indications that this information was disclosed to anyone who did not have a need to know. AE 46. We therefore find that under the circumstances present, there is insufficient evidence demonstrating that the Agency disclosed Complainant’s confidential medical information in violation of the Rehabilitation Act. 2020004448 6 Hostile Work Environment To establish a claim of harassment 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 classes; (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 antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management officials subjected her to a hostile work environment as evidenced by multiple incidents. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record evidence reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, as to incidents (1), (2), (9), and (29), S1a and S1b averred that Complainant was eventually provided with a job description that accurately described all of her duties and responsibilities. IR 221, 235, 266-67. Regarding incidents (3) through (6), and (8), S1a and S1b affirmed, in essence, that backlogs in the work were accumulating, that the additional assignments Complainant was given fell within the category of “other duties,” and that Complainant had agreed to come into the office to do the training described in incident (5). IR 220-21, 234-35, 267-68, 290-91. Concerning incident (7), MSAS and S1a averred that Complainant had complained in an email to S1a that MSAS was giving her orders even though MSAS was not her supervisor, and that S1a did not consider MSAS’s conduct constituted harassment. IR 217, 269. With respect to incidents (11) and (12), S1b averred that although he initially revoked Complainant’s telework agreement, he agreed to extend it while Complainant’s reasonable accommodation request was pending. 2020004448 7 Further, he asserted that Complainant was offered assistance in performing her duties but did not communicate effectively with other staff members. IR 222, 237-40. In response to incidents (18) through (20). S1b stated that he reviewed Complainant’s workload and found it manageable, that Complainant was counseled for failure to maintain updated training materials and failure to timely re-educate employees on false audit results, and that Complainant’s advanced sick leave request may have gotten delayed during the transition to S1c’s stewardship of the unit. IR 223, 245-49, 530-31. Regarding claims (21) and (24), there is no evidence showing that Complainant was charged AWOL July 10, 2018 through July 22, 2018. The record shows, however, that as of July 23, 2018, Complainant had exhausted all of her available leave, and was not pre-approved for leave without pay for the time period in question. IR 368-394. As a result, Complainant was charged AWOL as of July 23, 2018. As to claim (28), Complainant acknowledged that the Agency’s Information Technology Help Desk explained to her that her account was automatically disabled due to extended leave/non-activity. Complainant was in a non-work status at the time. Complainant reactivated her access that same day, but she had another block due to incomplete required annual security training. The record contains no evidence that any management official was responsible. Finally, as to claim (30), S1c stated she was not Complainant’s supervisor for most of the rating period, and therefore relied on input from S1b to determine the rating. S1c affirmed that she tried to meet with Complainant to discuss her job duties and performance up to that point, but she refused. S1c confirmed that based on S1b’s feedback she felt “fully successful” was appropriate. Aside from her own assertions, Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by Agency officials either through their affidavit testimony or from emails and other contemporaneously prepared documents. Likewise, Complainant has not provided any documentary or testimonial evidence that would cause us to question the truthfulness of any of these individuals as witnesses. As Complainant chose to withdraw her hearing request, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 2020004448 8 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 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. 2020004448 9 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 September 27, 2022 Date