[Redacted], Irish M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2021005296 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irish M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021005296 Hearing No. 541-2020-00138X Agency No. 2003-741G-2019105867 DECISION On September 29, 2021, 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 September 3, 2021, final order 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Service Representative (CSR), GS-0962-6, at the Agency’s Office of Community Care (OCC) in Denver, Colorado. She transferred to OCC in September 2018. See Report of Investigation (ROI) at 40. Prior to her transfer, Complainant served in various union roles, which included 15 years of service as the local union steward and most recently as the union’s Women and Fair Practices Program Coordinator. Id. at 42. 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. 2021005296 2 Complainant began the requisite training for the CSR position on October 28, 2018, and was directly supervised by Supervisory CSR-1. ROI at 58. Prior to completing the training,2 Complainant requested leave under the Family and Medical Leave Act (FMLA). See Agency’s Motion for Summary Judgment (MSJ) at 56 (Exhibit B). The Agency approved her request on November 15, 2018. Id. Shortly thereafter, Complainant filed a request for reasonable accommodation, seeking training, telework, and reassignment to “a position on the family side” as she had been told that the employees there were allowed “double screens and are not responsible for maintaining as many codes.” ROI at 81-82. In the alternative, Complainant requested an ergonomic keyboard, ergonomic chair, foot stool, large screen, screen shield, headphones, and a corner desk. Id. In support of her request, Complainant submitted a letter from her vocational rehabilitation physician dated December 4, 2018. In the letter, Complainant’s physician noted that Complainant “found some tasks required by the training she began at the end of October” to be “impossible to perform” due to her severe memory loss, difficulty with multitasking, and inability to “remember names, facts, and numbers.” See MSJ at 63-64 (Exhibit D). Complainant’s physician opined that while Complainant’s osteoarthritis could be accommodated with ergonomic equipment, Complainant’s memory loss and difficulty with multitasking could not be accommodated, as Complainant was simply “incapable of performing the training necessary to learn the job.” Id. Complainant’s physician concluded that it was unreasonable to deem Complainant capable of performing the job on a day-to-day basis. Id. Based on this conclusion, the Deputy Chief of the Community Care Contact Center (Deputy Chief) notified Complainant on February 7, 2019, that she was not entitled to reasonable accommodation because she was not a qualified individual with a disability, as she had “never demonstrated that [she] could perform the essential functions of the job position since [her] start date.” ROI at 79. After Complainant exhausted her FMLA leave entitlement on March 27, 2019, she rarely reported to work and largely remained out of the office primarily on leave without pay status. See MSJ at 30-51 (Exhibit A). Beginning July 5, 2019, Supervisory CSR-2 became Complainant’s supervisor and supervised Complainant on the days when she was not absent from work. ROI at 72. Ultimately, the Agency issued Complainant proposed removal letter on May 20, 2020, proposing to remove her from federal service for: 1) incurring excessive absences; and 2) being absent without leave (AWOL). See MSJ at 53-58 (Exhibit B). After Complainant declined the Agency’s offer for a last chance agreement, the Agency notified her on June 25, 2020, that she would be removed from federal service based solely on the charge of excessive absences. Id. The removal action became effective on June 30, 2020. Id. Though Complainant subsequently challenged the removal action through the negotiated grievance process, the Agency denied her grievance and refused to reinstate her. Id. 2 Complainant completed three full weeks of formal classroom training. However, she was entirely absent for the fourth week of classroom training and missed four out of five days of on- the-job training during the fifth week. See MSJ at 60 (Exhibit C). 2021005296 3 Prior to her removal, Complainant filed an EEO complaint on January 2, 2020, alleging that the Agency discriminated against her on the bases of race (African American), sex (female), disability (physical and mental),3 and age (over 40) when: 1. Beginning in October 2018, and ongoing, Supervisory CSR-1, failed to take action against Complainant’s coworker when she continuously called Complainant’s home, telling her negative comments allegedly made about her in the workplace. The Supervisory CSR-1 called her out of training and asked her, “Why had you not answered her emails,” and she (Complainant) learned that Supervisory CSR-1 told a colleague, “That she was making sure (Complainant) would be miserable.” 2. On an unspecified date, Supervisory CSR-2 failed to take action and/or “did not seem interested” when Complainant notified him that she was being subjected to a hostile work environment. 3. On February 7, 2019, the Deputy Chief denied Complainant’s request for reasonable accommodation to be reassigned to “a position on the family side.” 4. On August 8, 2019,4 Supervisory CSR-1 made degrading remarks about Complainant’s disability and then stated, “You just do and go where you want, whenever you want,” and then shook her “ass” in Complainant’s face. On February 20, 2020, the Agency notified Complainant that while it would investigate all of Complainant’s allegations under the legal standard for harassment, Complainant could not bring claim 3 as an independently actionable claim due to her failure to timely raise it. The Agency then commenced the investigation into Complainant’s EEO complaint. During the investigation, the Agency asked Complainant to explain why she believed the alleged harassment was based on race, sex, age, and disability. Complainant responded by repeatedly emphasizing that the root cause of the harassment that she experienced was “due to [her] past affiliations as a Union Official.” ROI at 44-46. At the conclusion of the investigation on May 1, 2020, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to adjudicate the matter. 3 According to Complainant, she received a diagnosis of bilateral osteoarthritis in 2009. See ROI at 40. Though Complainant made no mention of her mental disability during the EEO investigation, we note that she indicated in her formal complaint that she had memory loss due to an unspecified mental disability. Id. at 3 4 Though Complainant initially alleged that the incident occurred on August 14, 2019, she clarified during the initial conference that the incident occurred on August 8, 2019. See Order Following Initial Conference at fn. 2. 2021005296 4 On July 8, 2021, the Agency filed a motion for a decision without a hearing. In its motion, the Agency initially noted that it had previously dismissed claim 3 as an independently actionable claim; however, the Agency argued that even it claim 3 was independently actionable, Complainant still could not prevail because she “failed to satisfy the job-related training requirements and could not demonstrate any ability to actually do the work she was hired for and thus, [the] Agency had no obligation to grant her reasonable accommodation.” As for the remaining claims comprising Complainant’s hostile work environment claim, the Agency maintained that Complainant could not prevail on these claims because she failed to show that the alleged actions were based on her protected bases. After Complainant failed to meet the deadline for filing an opposition statement, she filed a motion seeking to extend the deadline and argued that matter should have been processed as a mixed case complaint. The assigned AJ, however, denied Complainant’s request for an extension, as Complainant had filed her motion “considerably late.” In denying Complainant’s motion, the AJ was particularly perplexed that Complainant had characterized the matter as a mixed case, as the AJ found nothing in the record that showed that the case was at any point a mixed case. The AJ ultimately adopted the Agency’s July 8, 2021, motion for a decision without a hearing and issued a decision without a hearing on August 30, 2021. 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. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant disputes the AJ’s finding of no discrimination and argues that her removal was discriminatory because the Agency failed to reasonably accommodate her and did not engage in interactive process. In support of her contention, Complainant submits a copy of her Step 3 grievance filing, wherein Complainant vigorously disputed the excessive absences and AWOL charges and argued that the removal action may have been taken because she had previously complained about the unlawful disclosure of her requests for reasonable accommodation. Complainant also argues that her removal should have been processed as a mixed case complaint. The Agency, however, opposes the appeal and argues that Complainant’s contentions regarding her removal are not appropriate for appellate review because Complainant “did not attempt to amend her complaint to add removal as a claim even though the [AJ] specifically notified Complainant of her right to file a request to add a claim in his Order Following Initial Conference dated March 11, 2021.” Furthermore, the Agency vehemently denies that the underlying issues concern mixed case matters. The Agency ultimately requests that we affirm its final order because the undisputed record shows that Complainant was not subjected to discrimination as alleged. 2021005296 5 STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS Preliminary Matter As an initial matter, we reject Complainant’s contention that her complaint should have been processed as a mixed case complaint. We note that Complainant never attempted to amend her complaint at the hearing stage to include the removal claim. As such, we decline to consider whether the complaint should have been processed as a mixed case complaint. Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2021005296 6 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. In reviewing the AJ’s decision to grant the Agency’s motion, we must draw all justifiable inferences in Complainant’s favor. Having reviewed the record, we find that the Agency’s decision to procedurally dismiss claim 3 as an independently actionable claim was in error. We note that the Commission has held that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See Elliott L. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019002736 (Aug. 12, 2020), citing EEOC Compliance Manual, “Threshold Issues,” No. 915.003, at 2-IV (July 21, 2005). As the record clearly shows that when Complainant initiated EEO counseling, she was alleging that the Agency remained unwilling to reasonably accommodate her, we reinstate claim 3 as an independently actionable claim. Notwithstanding this oversight, we find that the record has been sufficiently developed regarding claim 3. Furthermore, the Agency’s MSJ argued in the alternative that Complainant could not prevail on the merits of claim 3. For the reasons discussed below, we find that the AJ correctly determined that there were no genuine issues of material fact or credibility to merit a hearing on any of the claims before us. Claim 3 (Reasonable Accommodation) 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. To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide his 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). The threshold question is whether a complainant is an individual with a disability within the meaning of the regulations. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, and the operation of a major bodily function. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). 2021005296 7 Given the letter from Complainant’s vocational rehabilitation physician, noting Complainant’s functional limitations due to her mental and physical disabilities, we find that Complainant was an individual with a disability during the relevant period. Having found that Complainant meets the threshold requirement which would entitle her to the protections of the Rehabilitation Act, Complainant must also show that she was a “qualified” individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). The regulation defines such an individual as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position in question. Essential functions “are the duties of a job,” that is, “the outcomes that must be achieved by someone in that position.” Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053 (July 10, 2014); Ta v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013); Finnegan v. Dep’t of the Air Force, EEOC Request No. 05980065 (Sept. 26, 2001). In determining whether an individual is qualified for a job, the Commission asks whether that person can perform the essential functions of the job when at work. Gilberto S. v. Dep’t of Homeland Sec., EEOC Petition No. 0320110053 (Jul. 10, 2014). Employers do not have to eliminate essential functions of a position to accommodate an individual with a disability. See Enforcement Guidance on Reasonable Accommodation at “General Principles”. We ultimately agree with the AJ’s decision to adopt the Agency’s argument that, assuming claim 3 stated an independently actionable claim, Complainant was not entitled to reasonable accommodation because she was not a qualified individual with a disability. Indeed, our review of the record shows that Complainant began training for the CSR position in late October 2018. Prior to completing the requisite training, Complainant went on FMLA leave. She largely remained on leave after exhausting her FMLA leave balance in March 2019. Moreover, we note that Complainant’s own physician characterized her as “incapable of performing the training necessary to learn the job” and emphasized that Complainant’s mental disability, manifesting as severe memory loss and difficulty with multitasking, could not be accommodated to allow her to perform the day-to-day duties of the position. Given these circumstances, we find that Complainant was not qualified to perform the essential functions of the position for which she was hired. While we are mindful that Complainant sought reassignment “to a position on the family side” as the employees there purportedly did not need to remember as many codes, we find that Complainant was not entitled to reassignment because she was never qualified for the position for which she hired due to her mental disability. See Bruce P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120182117 (May 5, 2020), req. for recons. den. EEOC Request No. 2020005149 (Nov. 30, 2020). In reaching this conclusion, we recognize that the Agency did not grant Complainant’s request for ergonomic keyboard, ergonomic chair, foot stool, large screen, screen shield, headphones, and a corner desk; however, we are disinclined to find discrimination because the record does not persuasively show that such accommodations would have enabled her to perform the essential functions of the CSR position. Based on the foregoing, we conclude that the AJ correctly implemented the Agency’s MSJ finding that it did not violate the Rehabilitation Act. 2021005296 8 Claims 1, 2, and 4 (Harassment) We turn now to Complainant’s hostile work environment claim. As an initial matter, we find that a finding of harassment on claim 3 is precluded due to our determination that Complainant failed to establish that the alleged action was motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). For Complainant to prevail on the remaining allegations of harassment, she 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; (3) the harassment complained of was based on her statutorily protected class; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). Even if we assume arguendo that Complainant can establish prongs 1-2 and 4-5 of the legal standard for harassment, we conclude that Complainant prevail on her claim of harassment, as Complainant’s own words demonstrate that root cause of the harassment that she experienced was “due to [her] past affiliations as a Union Official.” ROI at 44-46. Given Complainant’s clear admission, we find that Complainant cannot establish prong 3 of the legal standard for harassment and her claim of harassment must fail. 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. 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. 2021005296 9 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. 2021005296 10 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 January 4, 2023 Date