[Redacted], Joan R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 6, 2022Appeal No. 2021001715 (E.E.O.C. Sep. 6, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joan R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001715 Hearing No. 460-2020-00075X Agency No. 2003-0629-2017103373 DECISION On January 9, 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 December 10, 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. BACKGROUND At the time of events giving rise to the complaint, Complainant worked as a Chief of Health Information Management (HIM), GS-12/8, at the Agency’s Southeast Louisiana Veterans Healthcare System (SLVHCS) facility in New Orleans, Louisiana. On August 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to discriminatory harassment/a hostile work environment on the bases of race (White), disability (spinal anomaly), and reprisal for prior protected EEO activity 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. 2021001715 2 1. On or about April 19, 2017, Chief of Medical Administration Service (“MAS Chief”) constantly stated to Complainant "I need you here," although the terms of Complainant’s reasonable accommodation do not require Complainant to be at the same location as her supervisor; and 2. On or about May 3, 2017, MAS Chief and the Program Manager of Health Administration Service (“HAS Manager”) denied Complainant’s non-competitive promotion to her target grade (GS-13) for her Chief Health Information Management position. The Agency dismissed Complainant’s harassment/hostile work environment claim pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a claim, finding that even if Complainant’s allegations were true, they did not state an actionable claim of harassment/hostile work environment. The Agency found that Complainant’s claim regarding her non-promotion did state a cognizable disparate treatment claim and accepted the claim for investigation. The investigation revealed that Complainant has a congenital spinal anomaly/deformity which she described as affecting all aspects of her daily living activities, due to limited range of motion in her neck and shoulder, as well as chronic pain that affects her ability to sit, walk, and perform manual tasks. Complainant asserted that her impairments impact the essential functions of her job because she cannot sit, stand, or walk for more than 20 minutes at a time and is unable to lift more than 10 pounds. Additionally, explained Complainant, her medications cause side effects such as: sleepiness, dizziness, cataracts, nausea, vomiting, fatigue, metabolic issues, decreased appetite, anorexia, gastrointestinal issues, and passing out. In addition, due to pre-mature cataracts, Complainant states she is legally blind and indications she has been diagnosed with major depressive disorder with anxiety, which affects her ability to concentrate. She claims the added stress from her supervisors’ actions has exacerbated her anxiety and depression. The medical records submitted by Complainant show she underwent anterior cervical discectomy and fusion at C4-11 in 2014, but she continued to experience chronic pain and an anomaly at C1-12 causing permanent limitations in her range of motion. An MRI taken after surgery showed spondylosis at C1-2 and she was diagnosed with cervical post-laminectomy syndrome, cervical radiculopathy, and chronic pain syndrome. The documentation indicates Complainant cannot lift more than 10 pounds or push/pull more than 20 pounds. She cannot bend, stoop, crawl, climb stairs, work overhead, or sit for more than 30 minutes uninterrupted. Her doctors stated it was unlikely Complainant would make a full recovery, her prognosis was poor, and her restrictions were indefinite. Complainant originally requested telework as an accommodation for her disability, but this request was denied on January 29, 2015. 2021001715 3 However, in April 2015, Complainant was approved for an accommodation allowing her to work two days a week from the Community Based Outpatient Center nearest her home, to reduce her driving time, and work a compressed tour which provided her one day off every two weeks. These accommodations were still in place at the time of the events giving rise to this complaint. Complainant originally applied for a noncompetitive promotion to the GS-13 level in 2012, when she submitted a boarding package to the National Medical Records Administrator of the Professional Standards Board. However, the promotion was denied because the facility where Complainant worked at the time (New Orleans Medical Center) did not meet the facility complexity requirements for a GS-13 position. In May 2017, Complainant tried to submit a boarding package to the Professional Standards Board for a non-competitive, career ladder promotion to GS-13, but she said neither her first line supervisor (HAS Manager) nor her second line supervisor (MAS Chief) signed the documents needed for her boarding packet and it was never submitted. A representative of the Professional Standards Board confirmed they did not receive a boarding request for Complainant for New Orleans, the non-competitive promotion at issue here.2 HAS Manager testified that she sent the Board Action to Human Resources for boarding of Complainant’s position. She denied Complainant’s assertion that she refused to sign documents needed for the boarding package. However, MAS Chief testified she did not recommend Complainant for the promotion based on Complainant’s performance. On November 8, 2017, HAS Manager gave Complainant an “Excellent” performance rating for the period of October 1, 2016 to September 30, 2017. However, MAS Chief testified she disagreed with the rating and refused to provide her second level approval to that appraisal. MAS Chief stated she received complaints and concerns about Complainant’s performance from Complainant’s team and others in the health system, including complaints from doctors that Complainant failed to follow through on responsibilities related to her role as a member of the Medical Records Committee. MAS Chief testified Complainant’s deficient performance was the only basis for her actions and decisions. Additionally, MAS Chief testified that because of her alternate work location, Complainant was not onsite enough to properly supervise her team of more than 30 employees. She stated Complainant’s staff calls her “the ghost” because they see her so infrequently. Complainant does not have any direct reports at her alternate location, noted MAS Chief. 2 In November 2017, Complainant was selected for the position of Chief of Health Information Management for Houston, Texas, and she was boarded at the GS-13 level. This was a competitive promotion. The record also reflects that Complainant was boarded at the GS-13 level for another competitive promotion in Biloxi, Mississippi. The Professional Standards Board recommended Complainant for promotion to GS-13 in both competitive reviews. 2021001715 4 When Complainant is not onsite, MAS Chief attested, the supervisors who report to her have to assume a lot of Complainant’s responsibilities. Further, it could sometimes be challenging to communicate with Complainant. In MAS Chief’s opinion, she would never have agreed to such an arrangement for someone in Complainant’s role, but the arrangement was already in place when MAS Chief started in November 2016. So, she continued to honor the arrangement. MAS Chief testified Complainant’s disability is not a factor in performing her essential job functions, but rather, Complainant does not have a specific certification for the Grade 13 job that the Board requires. She noted the promotional position would not require a change in Complainant’s reasonable accommodation. HAS Manager, Complainant’s immediate supervisor, testified Complainant performs her duties. HAS Manager stated she was unaware of Complainant’s disabilities, but did know that Complainant had requested reasonable accommodations from Human Resources and was provided with accommodations. Similarly, MAS Chief acknowledged she was aware Complainant had reasonable accommodations. She believed that due to a spinal condition, Complainant was limited in driving and, in order to reduce her driving time, Complainant was permitted to work out of an office location closer to her home twice a week and on a compressed tour. MAS testified she had revoked the compressed work week for other managers, but she permitted Complainant to maintain the schedule as an accommodation. Complainant believed her race was also a factor in her non-promotion because others were granted promotions. As for her disability being a factor, Complainant asserted that MAS Chief and HAS Manager continually made comments regarding her promotion and reasonable accommodation, such as: “you need to be here”, “I need you here”, and “your staff needs to see you every day”. Complainant testified that she was not promoted because neither HAS Manager nor MAS Chief were willing to recommend her for promotion. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request.3 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged. Specifically, while the Agency found that Complainant failed to establish discrimination on the basis of race, it found that she did present a prima facie case of disability and reprisal discrimination and established that the Agency’s articulated legitimate nondiscriminatory reasons for her non-promotion were pretextual. Although Complainant’s second level supervisor, MAS Chief, stated she did not recommend Complainant for promotion to GS-13 due to her performance, the Agency found MAS Chief’s assertion was not supported by the record. 3 At the time Complainant withdrew her hearing request, she stated an intention to file a claim in federal district court. It does not appear she has done so. 2021001715 5 The Agency reasoned that the record did not reflect substantive performance deficiencies by Complainant that would support the denial of a career ladder promotion to GS-13. Further, the Agency found that MAS Chief’s comments, expressing dissatisfaction with Complainant’s accommodation, were evidence of discriminatory and retaliatory motive. The Agency’s FAD ordered the following relief and corrective action: 1. Equitable Relief a. The Agency shall immediately award Complainant back pay (including TSP contributions and earnings). The time period used to compute the backpay award shall commence from May 3, 2017 to November 27, 2017 when Complainant left her position to take the competitive promotion GS- 13 position at the Houston VA Medical Center. “Complainant shall be required to assist management in this regard by providing any information reasonably requested by management as necessary to implement the relief ordered herein.” (FAD, p. 14). b. The Agency will commit to Complainant in writing that it will cease from engaging in the unlawful employment practice found in this case, namely, disability discrimination and retaliation, that it will not engage in similar unlawful employment practices, that it will provide Complainant a work place free from hostility, offensive conduct or abuse, and that no reprisal will be taken against Complainant for filing and pursuing this or any other complaint under federal EEO law. c. Within 30 days of receipt of all necessary information, management will implement the remedial relief ordered in the foregoing paragraphs and shall advise Complainant in writing of (1) the amount of back pay and other attendant benefits due her and (2) how management reached its determinations regarding these matters. Management shall provide Complainant with this written determination. 2. Compensatory Damages a. The Agency’s Office of Resolution Management (ORMDI) was requested to conduct a supplemental investigation in order to obtain any additional information needed to reach a just and proper determination of the amount of damages to be awarded. Upon receipt of this decision, Complainant shall have forty-five (45) days in which to provide the ORMDI investigator with any and all objective evidence, as described in the preceding paragraphs, pertinent to compensatory damages. The ORMDI investigator will contact Complainant to obtain this evidence. Thereafter, based on the record, the evidence provided by Complainant, and any 2021001715 6 additional evidence gathered in the supplemental investigation, this office will issue a final agency decision on damages. The decision will advise Complainant of the right to appeal the decision to the EEOC and the right to file a civil action. b. If Complainant wishes to negotiate a settlement of the damages award with the facility director or staff office head, rather than having this office decide it, Complainant should simultaneously submit the above requested information regarding damages both to the ORMDI investigator and the facility director or staff office head, or that official’s legal representative. Any such agreement must be reached prior to the issuance of a final agency decision by this office. The Department will not delay investigation and issuance of a decision on damages because of settlement negotiations unless Complainant requests an extension of time in writing. 3. Attorney’s Fees: Any claim for fees and costs must be submitted both to this office at the following address: Director, Office of Employment Discrimination Complaint Adjudication (00D), 810 Vermont Avenue, NW, Washington, DC 20420, and to the VA facility director or staff office head, or that official’s legal representative, within 30 days of the date of this decision. The submission to this office must indicate that a copy of the claim was served on that official or legal representative. This office will issue a final fee decision within 60 days of receipt of the claim, provided a copy of the claim has been served on the above official. The final fees decision will include notice of the right to appeal the decision respecting the amount of the attorney fee award. 4. Costs: Complainant is entitled to costs associated with the prosecution of this claim. The costs may include mailing, photocopying, and any other reasonable out-of-pocket expenses. A claim for costs must be filed with this office within 60 days of the date of this decision. The claim must itemize the costs and be accompanied by documentary evidence (such as bills and receipts) to support the claim. Failure to provide such documentation will result in denial of the claim. 5. Other Corrective Action: a. EEO Training (if MAS Chief was rehired, since she had retired in the meantime). b. Disciplinary Action: Should MAS Chief seek re-employment, the FAD should be considered and appropriate disciplinary action taken. c. Notice Posting: The Agency is ORDERED to post at the Southeast Louisiana Veterans Healthcare System, New Orleans, Louisiana, copies of the attached Notice to Employees (Notice) regarding unlawful 2021001715 7 discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Agency shall post copies of the Notice, both in hard copy and electronic format, after being signed by the Director of the above-named facility within 30 calendar days of the date of this Final Agency Decision. The Notice shall remain posted for 60 consecutive days in conspicuous places, including the facility intranet website and those places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that copies of the Notice are not altered, defaced, or covered by any other material. Thereafter, Complainant filed the instant appeal. On appeal, Complainant contends the discrimination she experienced was also motivated by race and the Agency erred in not also finding racial discrimination. With respect to remedies, Complainant asserts that the backpay award should date back to her initial eligibility for promotion, October 26, 2009. She also contends that as a result of the Agency’s discrimination her physical and mental conditions were exacerbated and caused her to suffer a heart attack. According to Complainant, the Agency failed to hold accountable all parties involved in the discrimination. In response, the Agency maintains that it has complied with the FAD in full. However, the Agency notes it was unclear whether Complainant had provided any evidence to support her claim for compensatory damages and a FAD on compensatory damages had not been issued at the time of the instant appeal. Additionally, the Agency argues that Complainant’s appeal brief is untimely, noting that the Complainant received an extension, until February 23, 2021, but that she did not file her brief until February 24, 2021. As for the substance of Complainant’s brief, the Agency contends the reason for her appeal is unclear, since she does not seem to disagree with issues addressed in the FAD, but instead attempts to raise new issues. Any expressed disagreement, asserts the Agency, seems to be based on Complainant’s misunderstanding of the corrective action ordered in the FAD. ANALYSIS AND FINDINGS Standard of Review 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”). 2021001715 8 Preliminary Matters Complainant requested an extension of time to file her appeal brief based on her inability to hire counsel. On February 8, 2021, the Commission granted Complainant’s extension request, giving her until February 23, 2021, to file a brief in support of her appeal. Complainant filed her brief on February 24, 2021. She also filed a statement indicating that “due to health issues and availability of internet service [her] statement of appeal was not able to be uploaded on 2/23/2021 due to issues beyond [her] control.” Given the circumstances, and finding the Agency was not prejudiced by Complainant’s brief filing delay, we will accept Complainant’s appeal brief. As observed by the Agency, Complainant also raises a number of other issues on appeal which were not raised during counseling or in her formal complaint, including: beginning in November 2009, she was refused opportunities for further education and training; there were issues in the processing of her reasonable accommodation and FMLA leave; she was charged AWOL when she was on LWOP; and wrongfully terminated. We are sympathetic to the ongoing daily pain Complainant describes in her appellate brief. However, allegations that were not raised in the instant complaint cannot be adjudicated here. To the extent that Complainant raised new claims on appeal, she is advised to contact an EEO Counselor if she wishes to pursue these new matters. Complainant’s appeal brief also includes a demand for settlement. Pursuant to the FAD, if Complainant wishes to negotiate a settlement of the damages award with the facility director or staff office head, rather than having this office decide it, Complainant should simultaneously submit the above requested information regarding damages both to the ORMDI investigator and the facility director or staff office head, or that official’s legal representative. The Commission is not the proper place to make such a demand. To the extent that Complainant argues that the Agency should have also found discrimination based on race, we note that we need not address the additional alleged basis because it would not alter her remedies. Ness v. U.S. Postal Serv., EEOC Appeal No. 01981368 (Nov. 21, 2000) (having found discrimination based on disability, retaliation claim not addressed as the remedies available would not be augmented even with a finding of retaliation); Williams v. U.S. Postal Serv., EEOC Appeal No. 01944389 (Apr. 11, 1996) (other bases of discrimination not addressed where disability discrimination found). Dismissal of Harassment/Hostile Work Environment Claim We find that the Agency's dismissal of Complainant's harassment claim was proper. In determining whether a harassment complaint states a claim, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). 2021001715 9 However, we have found that allegations of a few isolated incidents of alleged harassment usually are usually not sufficient to state a viable harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Dep't of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). As noted by the Supreme Court, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms or conditions of employment”. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Here, Complainant alleges that on April 19, 2017, her supervisor repeatedly stated that he needed her at the worksite. We do not find that these remarks, made on one day, are sufficiently severe or pervasive to create a hostile work environment. See Cobb v. Dep’t of Treasury, EEOC Request No. 05970077 (March 13, 1997). Even when considered with the finding that her non- promotion was discriminatory, we decline to find Complainant has established she was also subjected to a hostile work environment. However, we do find that the Agency appropriately used these comments as evidence supporting the finding of disability discrimination with regard to the promotion issue. Remedies On appeal, Complainant argues she should be awarded back pay to October 26, 2009, when she was originally eligible for promotion to GS-13. However, her formal complaint only alleged discrimination for non-promotion beginning May 3, 2017. Therefore, we find no reason to disturb the award of backpay as ordered by the Agency. Complainant also argues she should be awarded attorney’s fees. However, attorney’s fees are allowable only for the services of members of the Bar and law clerks, paralegals or law students under the supervision of members of the Bar. 29 C.F.R. 1614.501(e)(1)(iii). Here, Complainant was not represented by such an attorney. Complainant is entitled to costs and the FAD directs how to claim those costs. Lastly, Complainant seeks reimbursement for various damages suffered and medical care. The FAD directed a supplemental investigation for compensatory damages. However, no decision on damages has been issued by the Agency. Therefore, the amount of compensatory damages is not before us at this time. We see no reason to disturb the remedies ordered in the FAD. 2021001715 10 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 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. 2021001715 11 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 6, 2022 Date Copy with citationCopy as parenthetical citation