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

Equal Employment Opportunity Commission

Sep 13, 2022

Appeal No. 2021003345 (E.E.O.C. Sep. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sabrina P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003345 Agency No. 200I-VI07-2020103791 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 21, 2021 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-11, at the Agency’s Veterans Integrated System Network 7, Southeast Network Office in Duluth, Georgia. On June 4, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (panic attacks, migraines, polycystic ovarian syndrome, degenerative arthritis of the cervical spine with Intervertebral Disc Syndrome, radiculopathy, tinnitus, congestive heart failure, hypertension, diabetes, and chronic sinusitis) when: (1) on February 20, 2020 through March 12, 2020, the Benefits and Records Supervisor (S1) delayed the processing of Complainant’s Family Medical Leave Act (FMLA) application and donated 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. 2021003345 2 leave request; (2) on March 6, 2020, Complainant was charged 80 hours Leave Without Pay (LWOP); (3) on March 16, 2020, Complainant requested telework as a reasonable accommodation, which was not acted on; (4) on March 31, 2020, Complainant was charged 40 hours LWOP; (5) since April 2, 2020 and ongoing, Complainant’s approved request for donated leave has not been processed; (6) on April 3, 2020, Complainant was charged 40 hours LWOP; (7) on April 14, 2020, Complainant’s LWOP memorandum requested extended leave and expedited Office of Personnel Management (OPM) disability retirement application package was not processed; (8) on April 21, 2020, Complainant was charged with LWOP; (9) on April 21, 2020, Human Resources failed to process Complainant’s OPM Disability Retirement application; (10) on April 22, 2020, S1 accused Complainant of not following protocol regarding her submitted Form 3112-B (Supervisor’s Statement) in support of Complainant’s expedited retirement package; (11) on April 22, 2020, the Employee Relations/Labor Relations Supervisor required Complainant to provide updated medical documentation when Complainant was in a non-duty status; (12) on April 28, 2020, S1 requested that Complainant re-do her previously submitted LWOP request letter; (13) on April 29, 2020 and April 30, 2020, the Acting Human Resources Officer (AHRO) gave conflicting information and delayed/did not process Complainant’s OPM disability retirement package; and (14) as of June 18, 2020, management officials have failed to process Complainant’s retirement package and to provide Complainant with copies. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant failed to prove that Agency management subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2021003345 3 Denial of 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. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). The undisputed record shows that Complainant is an individual with a disability, within the meaning of the Rehabilitation Act. The record shows that Complainant submitted a request for telework agreement, after such agreements were solicited by management from all employees in Complainant’s unit, in response to potential telework authorization during the Covid-19 pandemic. While the authorization was unrelated to any reasonable accommodation request and was offered to all employees, Complainant also checked a box in her request stating that she has a qualified disability and needed telework as a reasonable accommodation. Despite management assertions of never receiving an accommodation request from Complainant, we find that Complainant sufficiently put the Agency on notice that she was requesting a reasonable accommodation, and to therefore enter the interactive process with Complainant. Nevertheless, the record shows that the Agency approved Complainant’s telework request despite failing to treat it as an accommodation for her medical conditions. The undisputed record shows that Complainant was approved to telework on March 27, 2020, and S1 received notification of this approval on April 3, 2020. An email dated April 8, 2020 shows that Complainant was on a regular telework schedule at that time, allowing her to telework Mondays, Wednesdays, Thursdays, and Fridays each week. The EEOC requires agencies to respond "expeditiously" to requests for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised October 17, 2002) at question 10. However, some delay in implementing a reasonable accommodation might be reasonable, particularly where the Agency can legitimately explain the delay. see Ileana H. v. Dep’t of Transportation, EEOC Appeal No. 2019000653 (Sept. 16, 2020); Horace H. v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120150773 (Apr. 18, 2017). The record shows that Complainant announced her retirement on April 14, 2020 (less than a month after she submitted her telework request). The record shows that during that month, the Agency was attempting to move large numbers of employees to telework due to a global Covid- 19 pandemic, including issuing laptops and testing the network capabilities of VPNs. S1 testified that there was a delay from the information technology department to provide laptops due to the high demand, but that Complainant was not denied telework. 2021003345 4 Instead, the record establishes that she was approved telework at an 80 percent schedule within three weeks of her request, and any additional delay in her start date was due to the difficulty in procuring equipment. Accordingly, we agree with the Agency and find that the record does not support a finding that Complainant was denied an accommodation or that is was unreasonably delayed. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, Complainant alleges that she was discriminated against based on her disability when she was charged LWOP on March 6, March 31, April 3, and April 21, 2020 (Claims 2, 4, 6, and 8); her donated leave was not processed (claim 5); her retirement application was delayed (claim 13); and the Agency did not provide her with copies of her retirement application (claim 14). Management testified that Complainant was charged LWOP when her personal and donated leave balances were empty, and that all donated leave was processed and applied to her account. Management further testified that Complainant’s retirement application was not delayed, and that the application was processed according to normal timelines. In addition, management testified that Complainant submitted her retirement application and documents directly to OPM herself, and therefore has copies of her application. 2021003345 5 Aside from Complainant’s bare, uncorroborated assertions the record is devoid of evidence to suggest that any member of management purposefully delayed the processing of any of her paperwork or requests, or otherwise was motivated by discriminatory animus. Instead, the record shows that when Complainant attempted to address an issue, S1 and the Voluntary Leave Coordinator followed up with payroll to ensure that donated leave was processed. The record further shows that management worked to help get Complainant’s retirement application processed even though Complainant failed to follow the normal process but instead submitted her application to OPM on her own prior to scheduling an appointment with a Retirement Specialist to process the application. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination. Accordingly, we find that Complainant has not shown that she was subjected to discrimination or a hostile work environment. 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 decision. 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. 2021003345 6 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. 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. 2021003345 7 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