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

Equal Employment Opportunity Commission

Jun 29, 2022

Appeal No. 2021001211 (E.E.O.C. Jun. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reina D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001211 Hearing No. 410-2017-00382X Agency No. 200I-0508-2016105106 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 September 10, 2020, final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Registered Nurse, VN-2, at the Agency’s VA Medical Center in Decatur, Georgia. On November 8, 2016, Complainant filed a formal complaint claiming that the Agency subjected her to a hostile work environment based on disability as evidenced by the following events: 1. on April 21, 2016, Complainant received a rejection letter from the National Nurse Education Initiative (NNE) Scholarship Program; 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. 2021001211 2 2. on July 16, 2016, Complainant received a “special evaluation” that was “not fairly completed and, in fact, was completed in error” and not accepted as part of the Summary Review Board (SRB) “designed to terminate” her; 3. on July 17, 2016, Complainant was subjected to an SRB hearing, the results of which she has never received in writing; 4. on August 7, 2016, Complainant’s request for a reasonable accommodation was approved, however, the delay from the date of the request on March 28, 2016, to the date of approval forced her to “invoke” leave under the Family Medical Leave Act (FMLA) and required her to use up annual and sick leave (AL and SL) (Discrete Event); 5. on September 9, 2016, Complainant was notified that she was charged with Leave Without Pay (LWOP) on May 17-19, and 23, 2016, which resulted in $761 being deducted from her paycheck (Discrete Event); 6. on September 12, 2016, Complainant received a “poor” performance evaluation and, as a result, she was not given a raise and was “threatened with termination” (Discrete Event); 7. as of September 15, 2016, Complainant had not received a response from the VALUE Leadership Program; 8. as of November 8, 2016 (ongoing), Complainant had not been paid for the 5.5. hours of overtime she worked on February 17, 2016, or for holidays (Memorial Day and Fourth of July) she was on FMLA (Discrete Event); and 9. Complainant was required to call in her request for leave under the FMLA every day, “despite FMLA paperwork” which states she is to call in every three days (No specific dates provided). After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment and Complainant filed a response. On December 9, 2019, the AJ granted the Agency’s motion for summary judgment for all claims except claim 4 (reasonable accommodation claim). Consequently, the AJ held a hearing on December 10, 2019, only addressing Complainant’s request for reasonable accommodation (claim 4). On May 15, 2020, the AJ issued a decision, in part by summary judgment. Regarding claims 1 - 3 and 5 - 9, the AJ issued a decision on the evidence of record finding no discrimination. 2021001211 3 Regarding claim 4, however, the AJ found that the Agency violated the Rehabilitation Act when it excessively delayed providing Complainant a reasonable accommodation. Thereafter, on August 7, 2020, the AJ awarded Complainant damages for harm she endured from the Agency’s failure to timely accommodate, which included $12,782.94 in back pay and $25,000 in non- pecuniary compensatory damages. Additionally, in a separate decision also dated August 7, 2020, the AJ awarded Complainant $18,649.00 in attorney fees. On September 10, 2020, the Agency issued a final order fully implementing the AJ’s decision as well as award of damages and attorney fees. The instant appeal followed. We construe Complainant’s appeal as an appeal of the AJ’s summary judgment decision finding no discrimination for claims 1 - 3 and 5 - 9. ANALYSIS AND FINDINGS 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). 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021001211 4 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that she had 85 percent hearing loss in her right ear as well as balance issues, cognitive issues, and acoustic neuroma. Complainant further testified that she emailed her first and second supervisors (S1 and S2) about her conditions. Therefore, we find that Complainant is a qualified individual with a disability. Our review of the record supports that the AJ properly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Claims 1 and 7 - NNE Program Rejection Letter and VALUE Leadership Program Contrary to Complainant’s testimony that the Associate Director for Nursing and Patient Care Service (Associate Director) was responsible for Complainant’s rejection letter, the Associate Director explained that the Healthcare Talent Management (HTM) office denied Complainant’s application. The Associate Director further explained that Complainant had multiple errors on her application, and she missed the submission deadline even though S1 had attempted to help Complainant correct the errors and even though S1 had informed Complainant of the application deadline. The application was due by September 15, 2016. However, Complainant notified S1 that she submitted her application on September 20, 2016. Because Complainant missed the deadline, S1 encouraged Complainant to apply for the program during the next funding cycle. Complainant further asserted that S1 had to sign off on her initial application for the VALUE Leadership Program, but Complainant never received a response regarding her approval to participate. Aside from Complainant’s testimony, there is no other evidence to support that Complainant’s assertion that S1 denied her this opportunity. 2021001211 5 Claims 2, 3 and 6 - SRB Hearing and Performance Evaluations The record indicates that on March 23, 2016, Complainant was found sleeping on the Operating Room bed which prompted the SRB to conduct a June 17, 2016 summary review of Complainant’s employment during her probationary period. A copy of Complainant’s June 1, 2016 notice of the summary review reflects that the review was being conducted due to inappropriate behavior, sleeping on duty in an operating room, and failure to conduct instrument count in accordance with MCM 112-01 while performing her duties as a Registered Nurse. Although Complainant asserted that the “Special Evaluation,” which she stated was related to the September 12, 2016, evaluation, were used in an effort to terminate her employment, the record supports that the SRB ultimately determined not to terminate Complainant’s employment. On June 17, 2016, the SRB did not find evidence to support terminating Complainant’s employment and the SRB did not recommend Complainant’s termination. The SRB did recommend that management take appropriate actions for Complainant’s conduct. However, there is no indication in the record that Complainant was ever disciplined. Claim 5 - LWOP Charge A copy of Complainant’s time and attendance records indicates that she was charged LWOP because she had exhausted her leave. Claim 8 - Overtime and Holiday Pay The record indicates that Complainant was paid for the overtime hours in question. However, the record reflects that Complainant was not paid for Memorial Day or the Fourth of July because she was in a non-pay status while she was on FMLA leave at the time. Claim 9 - FMLA The record reflects that Complainant was approved for FMLA leave three times per week with a duration of three days per episode. Complainant was not required to call in every three days. Complainant, however, was instructed by management to follow department call in procedures. Complainant had previously informed management of her absences via email. However, Complainant was informed that email notifications were “inappropriate” and Agency procedures required that she call the house supervisor after hours or the control desk during business hours. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability. 2021001211 6 Consequently, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 3 and 5 - 9 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The AJ’s issuance of a decision without a hearing for claims 1 - 3 and 5 - 9 was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. The Agency's final order implementing the AJ's decision, including the finding of discrimination with respect to claim 4 and award of damages, is AFFIRMED as specified in our ORDER below. ORDER To the extent it has not already done so, the Agency is ORDERED to take the following actions within sixty (60) calendar days from the date this decision is issued: 1. Provide payment to Complainant of: $12,782.94 in back pay; $25,000 in non-pecuniary compensatory damages; and $18,649.00 in attorney fees; 2. Provide four (4) hours of EEO training focusing on the reasonable accommodation provisions of the Rehabilitation Act with an emphasis on the obligations of Agency managers during the entire reasonable accommodation process. In the event the responsible management officials are rehired by the Agency, the training shall be mandatory, conducted by an Office of Resolution Management Diversity and Inclusion (ORMDI) subject matter expert, and completed within 120 days from the date of their rehire. If an ORMDI training is unavailable, ORMDI will provide the training content, and the trainer identified by the facility must be certified by ORMDI as an EEO subject matter expert. 3. Consider taking appropriate disciplinary actions against the responsible management officials in the event they are rehired by the Agency. POSTING ORDER (G0617) The Agency is ordered to post at its VA Medical Center in Decatur, Georgia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. 2021001211 7 The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that 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. 2021001211 8 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). 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. 2021001211 9 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 June 29, 2022 Date