0120152078
08-29-2017
Tamara G,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tamara G,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152078
Agency No. 200303932014101280
DECISION
On May 27, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 27, 2015, 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. 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 GS-5 Program Support Assistant (PSA) at an Agency Human Resource Center (HRC) in Jackson, Mississippi. On February 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (hypertension, depression, anxiety, and fibromyalgia), and reprisal for prior protected EEO activity when:
1. from September 26, 20112 to March 2014, the Agency subjected Complainant to hostile work environment harassment (including denial of training opportunities offered to other PSAs, a male coworker calling Complainant a "streetwalker," coworkers speaking to Complainant in a rude and offensive manner, the Agency failing to resolve consistent technical issues with an office scanner, the Agency failing to discipline a coworker who slapped Complainant's face, denial of two transfer requests without justification, and forcing Complainant to upload illegally-created Human Resources documents to an employee's official personnel folder);
2. on December 18, 2013, the Agency subjected Complainant to disparate treatment when it denied her request for transfer; and
3. on March 12, 2014, the Agency subjected Complainant to disparate treatment when it denied her request for hardship transfer.
The Agency investigated Complainant's complaint. During a deposition, Complainant stated that she has been in treatment for hypertension, depression, anxiety attacks, and fibromyalgia since May 2012. She stated that she takes medications daily for the impairments and is only able to go to work and then return home, get in bed and cry each day. Complainant stated that she lives with her sister and her sister performs their household chores, such as grocery shopping, cooking, laundering clothes, and cleaning. Complainant stated that her impairments affect her concentration, focus, memory, and trust of others. She also stated that she has pain. Complainant stated that, in December 2013, she asked her first level supervisor (S1) for reassignment because she was fearful following an incident where a female coworker (C1) slapped her face. Complainant stated, in February 2014, she requested a hardship transfer out of the Jackson, Mississippi HRC due to retaliation, discrimination, and a hostile work environment by S1. Complainant stated that she requested a position in the Jackson, Mississippi commuting area.
As to the harassing incidents alleged under (1), the Agency provided the information that follows.
The HRC Director, Complainant's second level supervisor, (S2) stated that the Agency hired three PSAs, including Complainant, on the same day, and rotated the PSAs across three teams. S2 stated that management invited the PSAs to team meetings for work-related training.
S2 stated that there was a miscommunication regarding a male coworker calling Complainant a "streetwalker" and the coworker apologized for the misunderstanding.
S1 stated that two female coworkers apologized to Complainant for offending her.
S2 stated that there were technical issues with uploading software, which impacted Complainant and a Program Support Clerk, and that Information Technology could provide only temporary resolutions for the problem. S1 stated that Complainant had scanning to complete when there were technical issues.
S2 stated that management conducted a fact-finding about C1 slapping Complainant and the Agency issued C1 a written reprimand for inappropriate conduct. The record contains a written reprimand, dated January 17, 2014, to C1 for "inappropriate conduct." C1 stated that she and Complainant had a friendly relationship and she jokingly touched Complainant's face. C1 stated that she was surprised about Complainant's allegation as they continued to laugh and giggle after she touched her face jokingly.
S2 stated that her office would not ask a PSA to upload documents to an official personnel folder that are not supposed to be there according to Human Resources rules.
As to (2) and (3) specifically, S1 stated that he does not recall Complainant requesting reassignment, but he would have informed her that the fact-finding regarding the slapping allegation was in progress. S1 added that management moved C1 away from Complainant once it was determined that she had inappropriate contact with Complainant. S2 stated that she approved Complainant's hardship transfer request as the director for the departing office, but the director for the potential receiving office (Jackson, Mississippi Regional Office Director (S3)) denied the request because he was not in need of a position at Complainant's grade level (GS-5 or GS-6). S2 added that the Area Director (S4) concurred with S3's denial and reasoning. S2 noted that Complainant did not request a specific position in her hardship request, and informed S2 that she had some limitations, such as no heavy lifting. The record contains Complainant's hardship transfer request where she asked to be transferred to the Jackson, Mississippi Regional Office and indicated that she could not afford a transfer to another city, state, or physical location. On March 18, 2014, S4 denied Complainant's request for hardship transfer. Documentation in the record shows that S2 agreed to the transfer, S3 denied the request stating, "No HR Assistant needed at this time," and S4 concurred with S3's denial.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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").
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 case 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes. As to Complainant's claim that the actions alleged created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). As a threshold matter, Complainant must establish that she is an "individual with a disability." Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that complainant has not shown that the agency failed to reasonably accommodate her when it denied her requests for transfer (reassignment).
Complainant stated, in December 2013, she requested a transfer out of the Jackson, Mississippi HRC because she was fearful following an incident with a female coworker. Complainant alleged that the coworker, C1, slapped her face. C1 contended that she and Complainant are friendly and they were laughing when she touched Complainant's face jokingly. The Agency stated that it does not recall a reassignment request in December from Complainant. The Agency added that a fact-finding on the slapping allegation was pending at that time and that C1 was subsequently moved. In February 2014, Complainant submitted a hardship transfer request stating that she has hypertension, depression, anxiety attacks, and fibromyalgia brought on by the harassment she has endured in the HRC. Complainant asked to be transferred out of the HRC, but to remain in Jackson, Mississippi because she could not afford to move to another city, state or physical location. The Agency stated that the HRC Director, S2, approved the hardship request but the prospective receiving Director, S3, did not have a position at Complainant's grade level. The documentation on record supports the Agency's contention.
It is the Commission's position that complainant has the evidentiary burden in reassignment cases. Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002). To establish entitlement to a reassignment, an employee must show that a vacant, funded position existed or was likely to open up during the relevant time frame. Id. The record reflects that an attempt was made to locate a vacant, funded position into which Complainant could transfer at the location Complainant specifically identified - the Jackson, Mississippi Regional Office. Complainant asked to be transferred out of the HRC, but to remain in Jackson, Mississippi because she could not afford to move to another city, state or physical location. The HRC Director, S2, stated that there were no positions at Complainant's grade level at the regional office and the Regional Office Director, S3, stated specifically "No HR Assistant needed at this time." We note that the Rehabilitation Act does not require an agency to create a position as an accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, question 24 (rev. Oct. 17, 2002). We find that Complainant has not shown that the agency failed to reasonably accommodate her alleged disabilities when it denied her transfer requests.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
August 29, 2017
__________________
Date
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.
2 We note that Complainant began employment in the Jackson Human Resource Center on September 26, 2011. She took a reduction-in-grade from GS-6 to GS-5 to accept the position.
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