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

Equal Employment Opportunity Commission

Sep 13, 2022

Appeal No. 2022001581 (E.E.O.C. Sep. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001581 Agency No. 200H-0539-2019103793 DECISION 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 January 3, 2022, final decision 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. At the time of events giving rise to this complaint, Complainant worked as a Case Manager at the Agency’s Medical Center in Cincinnati, Ohio. On September 3, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on disability (physical) and in reprisal for prior protected EEO activity, when: 1. on an unspecified date, Complainant’s Family and Medical Leave Act (FMLA) leave request was denied; 2. in February 2019, Complainant was informed that she must accept a Utilization Management Nurse (UMN) position as a reasonable accommodation, or her employment would be terminated; 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. 2022001581 2 3. on or about April 12, 2019, Complainant’s first-line supervisor (Supervisor) denied Complainant’s request to change her schedule to arrive a half hour earlier two days a week, as a reasonable accommodation; 4. between March and May 29, 2019, Complainant was harassed almost daily by Supervisor regarding her disability; and 5. on May 29, 2019, due to Supervisor’s harassment, Complainant felt forced to retire from federal employment (constructive discharge).2 At the conclusion of the investigation and supplemental investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). For the reasonable accommodation claim (incidents 1 and 3), the Agency determined that Complainant was an individual with a disability, but not qualified for her position. Specifically, Complainant was informed that her performance was unsatisfactory, and she failed a test that was a requirement for her UMN position. Although the Agency was not required to provide a reasonable accommodation, it offered an alternative accommodation in response to Complainant’s request for a schedule adjustment to arrive 30 minutes early twice a week to accommodate her “balance classes.” Supervisor responded that Complainant could utilize FMLA leave and/or sick leave to attend physical therapy sessions. The Agency determined that Complainant was not entitled to the accommodation of her choice, and that use of leave is a form of accommodation. Since there was no indication that the use of leave was not effective, the Agency concluded that Complainant failed to establish that she was denied a reasonable accommodation. Regarding the harassment claim, the Agency found that Complainant did not show that she was subjected to unwelcome conduct based on her disability or protected EEO activity. For incident 2, Complainant was “offered…not ordered” the UMN position as a reasonable accommodation, and the Agency found that the advisement that she could be subjected to non-disciplinary termination due to her medical inability to work if she did not accept the offered reassignment was appropriate. With respect to incident 4, Supervisor testified that she never commented on, or discussed, Complainant’s disability or medical condition with other staff. For the allegation of a constructive discharge (claim 5), the Agency found that Complainant failed to show that a reasonable person would have found her working conditions to be intolerable. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. 2 The Agency proposed Complainant’s removal for failure to adequately perform on May 8, 2019, and it issued Complainant a decision to remove her from federal service on May 23, 2019. Report of Investigation at 143-8. 2022001581 3 The instant appeal followed, and Complainant filed a brief in support of her appeal. The Agency opposed Complainant’s appeal. 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 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”). Under the Commission's regulations, 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. Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency properly found that Complainant did not establish that the Agency failed to accommodate her for claims 1 and 3. Through her attorney, Complainant argues that she attempted to use FMLA leave to attend appointments but was denied the leave. Complainant also avers that it is undisputed that her request for a schedule change was denied, and the Agency provided no evidence showing undue hardship or direct threat. As noted in the final decision, an employee is not entitled to the accommodation of choice. 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 also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Q. 9 (Oct. 17, 2002); Polen v. Dep’t of Def., EEOC Appeal No. 01970984 (January 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. Here, Complainant was denied her requested schedule change and was granted an alternative accommodation to take leave as needed. Complainant asserts that her leave requests were denied, without identifying any specific incidents nor providing evidence to show that leave was denied. Rather, Complainant’s time records show that, from the time that Supervisor became Complainant’s supervisor until Complainant’s retirement, Supervisor approved all of Complainant’s sick and FMLA leave requests. Supplemental Report of Investigation (SROI) at 409-34. We note that Complainant represents claim 2 as a discriminatory and retaliatory “forced transfer.” However, on February 28, 2019, the parties signed a settlement agreement, which resulted in Complainant’s reassignment. ROI at 172-4. On appeal, Complainant ignores the settlement agreement that she voluntarily signed. 2022001581 4 To the extent that Complainant avers that she was “forced”, we note that a settlement agreement may be voided if one of the parties establishes that assent was obtained by duress or coercion. See Mosley v. St. Louis Sw. R.R., 634 F.2d 942 (5th Cir. 1981); Hodge v. Dep’t of the Army, EEOC Appeal No. 01954577 (Dec. 7, 1995). In addition, misrepresentation as to facts relevant to the complaint may cause the Commission to set aside a settlement agreement. See Wolf v. U.S. Postal Serv., EEOC Request No. 05900417 (June 14, 1990). Here, Complainant offers nothing beyond her bare assertions to support her claim that she was “forced” into the reassignment. For claim 4, Complainant makes vague claims that Supervisor made comments about Complainant’s disability on a daily basis. At most, Complainant stated that Supervisor mentioned that Complainant “needed an assistive device to walk.” SROI at 31. Supervisor denied making any comments about Complainant’s disability and explained that Complainant freely discussed her “personal affairs” with other employees. SROI at 41. 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 Sec., 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) (the complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where the complainant requested a final decision and an Administrative Judge did not make credibility determinations). In this case, Complainant offered no evidence that Supervisor made daily comments about Complainant’s disability. Complainant contended that she was subjected to a constructive discharge from her employment (claim 5) based on the alleged harassment. However, Complainant failed to show that her working conditions were so difficult that any reasonable person in her position would have felt compelled to resign or retire. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). While Complainant may have believed that her manager’s conduct was harassing, the record does not show that the actions were either discriminatory or intolerable; and the evidence reveals that Complainant retired after she received notice of her termination, and not due to any intolerable working conditions. Upon careful review of the Agency’s decision and the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final decision. 2022001581 5 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. 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). 2022001581 6 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 13, 2022 Date