Theresia B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 8, 2018

0120161410 (E.E.O.C. Aug. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Theresia B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120161410

Agency No. 2003-0598-2014100252

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated February 4, 2016, finding no discrimination
with regard to her 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse
(RN)/Staff Nurse on 4B, a Medical Surgical Unit at the Central Arkansas Veterans Healthcare
System in Little Rock, Arkansas. On October 21, 2013, Complainant contacted an EEO
Counselor concerning her complaint. Complainant filed her complaint on February 7, 2014,
which was later amended. The Agency identified Complainant’s claims as whether she was
discriminated against based on race (African-American), age, disability, and in reprisal for
requesting a reasonable accommodation 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.
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(1) On October 30, 2012, her duty hours on her duty status report (form CA-17) were
changed from eight hours to twelve hours.

(2) From November 1, 2012, through December 3, 2012, her first level supervisor (S1), the
Nurse Manager of 4B, assigned her the duties of a charge nurse and other tasks, which
were against her medical restrictions.

(3) On November 30, 2012, she was forced to work overtime from 4:00 pm to 8:00 pm,
causing her medical condition to deteriorate.

(4) From December 3, 2012, through January 8, 2013, she was detailed to Escort Service.

(5) On January 8, 2013, she was reassigned to work as Acting Clinical Nurse for Staff
Development (CNSD) for the following three months.

(6) On January 30, 2013, her second level supervisor (S2), the Associate Nurse Executive,
told her she had to return to her regular position on 4B, a Medical Surgical Nursing Unit
and said, “You will have pain but you will have to just work through it.”

(7) On May 7, 2013, she received a memorandum from S2 returning her to duty in her
normal position on Unit 4B.

(8) On May 8, 2013, and May 9, 2013, S1 and the Assistant Nurse Manager for 4B assigned
duties to her which were outside of her medical restrictions.

(9) On May 17, 2013, the Assistant Nurse Manager for 4B and S2 would not accept her
medical restrictions as they had the previous month.

(10) On May 17, 2013, the Assistant Nurse Manager for 4B and S2 presented her with
a “Limited Duty Temporary Position Description” for her to sign that contained changes
that would negatively impact her medical restrictions.

(11) On May 17, 2013, she was issued a three-day suspension.

(12) On May 25, 2013, a secretary was authorized to monitor her activities while she
was on light duty restrictions.

(13) On June 27, 2013, she had to respond to a request for information for sleeping on
the job.

(14) On October 7, 2013, she was forced to work outside her medical restrictions while
working in the Flu Clinic.

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(15) On October 16, 17, 20, and 23, 2013, she was denied consistent breaks and
adequate lunch breaks while working in the Flu Clinic.

(16) On October 23, 2013, S2 had her respond to a request for information because she
asked for support in the Flu Clinic.

(17) On November 15, 2013, her request for reasonable accommodation was denied.

(18) On February 28, 2014, she was issued a proposed removal.

(19) On March 24, 2014, she learned her reasonable accommodation request was
referred back to the facility’s Local Reasonable Accommodation Coordinator (LRAC).

(20) As of April 30, 2014, she had not received a response to her request that the
National Reasonable Accommodation Coordinator conduct a higher-level review of her
reasonable accommodation request.

(21) On June 16, 2014, S1 sent her an email message asking her to report her
scheduled leave to whichever area she was working on.

Complainant does not challenge the Agency’s framing of the claims. On March 26, 2014, the
Agency dismissed claims (1) – (5), (7) – (9), and (11) due to untimely EEO Counselor contact.
The Agency accepted claims (14), (15), (17), and (18) as independent claims. The Agency also
accepted a claim of harassment wherein which all the claims in the complaint including the
foregoing dismissed and accepted claims would be considered as part of Complainant’s overall
harassment claim.2

The record indicates that the Agency investigated all the claims in the complaint. After
completion of the investigation, Complainant requested a final Agency decision without a
hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

2 The Agency indicated that Complainant also alleged that she was issued an admonishment on
September 5, 2013, due to sleeping on the job, described in claim (13). Upon review, we find
that the Agency properly dismissed the claim for electing to file a grievance on the same matter
on October 4, 2013. 29 C.F.R. § 1614.107(a)(4). Complainant does not contest this dismissal on
appeal. The record indicates that the grievance was denied at Step 2 on December 23, 2013.
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ANALYSIS AND FINDINGS

Initially, the Agency dismissed claims (1) – (5), (7) – (9), and (11) due to untimely EEO
Counselor pursuant to 29 C.F.R. § 1614.107(a)(2).3 Since the Agency investigated these claims
and we find the investigative report adequate, we will, without discussing the timeliness, address
the merits of the subject claims accordingly.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant indicated that she was a RN, Medical/Surgical
Nursing – Unit 4B, Central Arkansas Veterans Healthcare System in Little Rock, Arkansas since
May 2008. As a RN, Complainant’s duties included assignments in direct patient care, i.e.,
lifting patients in and out of chairs and beds and responding quickly in the event of an
emergency. Complainant claimed that on July 1, 2012, she was injured while performing her
duties working with patients. As a result, she developed a cervical rupture disk in three places.

After the injury, Complainant was on medical leave from July 11, 2012, to November 1, 2012.
Due to her injury, Complainant had a weight restriction of 10 pounds with no pulling, lifting, or
pushing to include computers, bed rails, body parts, furniture, or doors. From November 1,
2012, to December 3, 2012, she was on a light duty status on Unit 4B and thereafter, she was
assigned/detailed to many different temporary positions according to her duty status report (CA-
17 form) which was submitted to the Agency every month.

Regarding claim (1), the Program Support Assistant denied he changed the hours as alleged. S1
and S2 had no idea of this incident. The record reflects no evidence of the incident.

Regarding claim (2), S1 indicated that due to her limitations, Complainant was assigned as a
Charge Nurse because the position duties consisted of desk duties.

3 Although the Agency indicated that Complainant contacted an EEO Counselor regarding the
subject claims on October 21, 2013, the record indicates that she originally contacted EEO
Specialists on May 22, 2013, alleging discrimination concerning her assignment of duties,
reassignment, and working conditions since her July 2012 injury.
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Complainant acknowledged that management told her not to work beyond her medical
limitations. Furthermore, there is no evidence showing that Complainant actually did work
beyond her medical restrictions.

Regarding claim (3), Complainant clarified the claim that as she was on a 12-hour tour, 7:30 am
to 8:00 pm, she was forced to work overtime only from 8:00 pm to 8:30 pm. S2 indicated that
there was no mandatory overtime and it was a voluntary process. S1 indicated that she was not
aware that Complainant worked overtime and Complainant’s record showed no documented
overtime.

Regarding claim (4), S2 indicated that Complainant was detailed to Dispatch and not to Escort
Service as she indicated. Due to her limitations, Complainant was detailed to Dispatch because
the position duties consisted of answering phones and notifying people where to pick up persons.
There is no persuasive evidence that Complainant worked in Escort Service.

Regarding claim (5), S2 indicated that S2 and Complainant talked about the temporary
reassignment to the CNSD, an educator position, and Complainant agreed to that reassignment.
Complainant does not dispute S2’s statement.

Regarding claim (6), S2 did not recall making the statement as indicated by Complainant and it
did not sound like anything she would say to anyone.

Regarding claim (7), S1 acknowledged that Complainant was returned to her Unit 4B position
when her temporary assignment ended but she was immediately assigned to assist with a Skill
Fair on the North Little Rock campus and then to the CNSD office to work. S1 indicated that
Complainant never actually worked on her 4B position. Complainant does not dispute this.

Regarding claim (8), S1 was not aware that Complainant was assigned to any duties beyond her
medical restrictions. Management indicated that they reviewed Complainant’s limitations prior
to any assignment and she did not inform management that any of her assigned duties were
against her restrictions.

Regarding claim (9), management indicated that Complainant had been submitting her CA-17
form that was used to submit information regarding a job-related injury. But since the Agency
had recently been notified by the Department of Labor that her Office of Workers’
Compensation Programs (OWCP) claim was denied finding her injury was not job-related, she
was required to submit the correct form that was related to a non-work related injury. The record
indicates that Complainant’s OWCP claim was denied on December 6, 2012. Management
indicated that they were not aware of this until some months later.

Regarding claim (10), S2 indicated that the Limited Duty Temporary Position Description
contained the duties within Complainant’s limitations but she was not required to sign it. S2
stated that management asked Complainant continuously to provide information regarding the
length of her medical restrictions but she failed to provide such information.
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Complainant informed S2 that she was going to see her neurologist on May 22, 2013, and her
family physician on June 11, 2013, for her medical reevaluation. The record indicates that
Complainant was evaluated by her doctors every four weeks and submitted her CA-17 forms
each month.

Regarding claim (11), management denied Complainant was issued the three-day suspension.
Complainant clarified the claim was that she was placed on forced leave at that time.
Management however denied that too. There is no documentation that Complainant was
suspended or placed on forced leave at that time.

Regarding claim (12), the lead secretary in the Nursing Office denied monitoring Complainant’s
activities as alleged. Management indicated that the lead secretary’s duty was to assign breaks
and lunch breaks to ensure phone coverage in the office.

Regarding claim (13), S2 indicated that the lead secretary, described in claim (12), reported to S2
that she and another secretary witnessed Complainant sleeping at her desk on June 27, 2013. S2
stated that based on this report, S2 issued Complainant a request for information so she could tell
her side of the story.

Regarding claim (14), S2 stated that Complainant was assigned to the Flu Clinic within her
medical restrictions. Complainant acknowledged that she agreed to the Flu Clinic assignment
pursuant to her restrictions. S2 indicated and Complainant acknowledged that Complainant was
advised not to perform duties beyond her limitations and to notify management if the assignment
involved a task she could not perform.

Regarding claim (15), the Facility Telehealth Coordinator in the clinic indicated that clinic
technicians and Complainant had conflicts and Complainant refused to work with the technicians
to coordinate their breaks and lunch hours to cover the clinic hours to administer flu vaccines to
veterans. Specifically, when the identified clinic technician went to relieve Complainant for her
breaks, she informed the technician that she was not ready to take a break. Management denied
Complainant was denied breaks and lunch breaks.

Regarding claim (16), S2 stated that based on the Flu Clinic’s report concerning the incident,
described in claim (15), S2 requested information from Complainant for her to explain why she
declined going on breaks, why she took an hour for lunch instead of the thirty minutes, and why
she was not taking instructions from the Flu Clinic Manager.

Regarding claim (18), S3 indicated that Complainant was issued the proposal removal notice due
to her inability to perform the essential functions of her RN position on Unit 4B, which was
determined by the LRAC, described in claim (17). S1 stated that Unit 4B had a critical staffing
issue and six beds were out of service pending additional staff.

The Agency indicated that on June 4, 2014, Complainant submitted new medical documentation
with fewer restrictions.
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Based on this new documentation, the Agency was able to find a permanent position for
Complainant for which she was qualified and the Agency did not issue an actual removal notice.
Complainant does not dispute this. On July 24, 2014, Complainant was offered the position as a
Fee Clinical Case Manager in the Central Business Office. Complainant accepted the position
on August 4, 2014. This matter is not at issue.

Regarding claims (19) and (20), the LRAC indicated that Complainant submitted a request for a
higher-level review of her request for reasonable accommodation to the Associate Director for
Patient Care Services who forwarded the request to him. He then submitted the request to the
Veterans Integrated Service Network LRAC accordingly.

Regarding claim (21), S1 indicated that S1 merely informed Complainant to share any leave time
information with the supervisor of the area where she was working in so that that supervisor
could plan the division of work in a timely manner.

Reasonable Accommodation

In claim (17), Complainant claimed that on November 15, 2013, her request for reasonable
accommodation was denied. The Agency indicated that since her injury, Complainant was
accommodated with modified/light work assignments within her medical restrictions in
accordance with her CA-17 forms she updated every month. Management indicated that
Complainant was instructed not to perform any duties beyond her limitations in those limited
assignments. The record indicates that Complainant was re-evaluated by her doctors every
month and updated her CA-17 form every month. Management indicated that based on her
monthly CA-17 forms, they believed that Complainant would eventually get better; thus, she was
accommodated on a temporary basis.

In May 2013, Complainant requested a reasonable accommodation to be placed in a permanent
position within her restrictions. The Agency requested Complainant to provide medical
documentation to support her request. Complainant submitted her doctor’s letters dated May 22,
June 12, and July 11, 2013, wherein which the doctor indicated that due to her July 1, 2012
injury, she was diagnosed with a ruptured disc of cervical spine with disc herniation.
Complainant’s doctor also stated that Complainant had medical restrictions of no lifting or
carrying more than 10 pounds and no pulling or pushing, including any equipment, bed rails,
body parts, furniture, and doors; and she was able to work full-time eight hours per day, five
days per week. The doctor also stated that the expected length of time of Complainant’s
restrictions was undetermined but her functional limitations were presumed to be long-term in
nature.

The LRAC indicated that Complainant’s request for a reasonable accommodation was denied
because the facility was unable to find any vacant funded positions that Complainant could be
accommodated within her limitations. S2 stated that Complainant was not able to perform the
essential functions of her RN position.
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As an RN, Complainant was required to perform the duties which included: lifting up to 40
pounds, pulling/pushing eight hours per day, responding quickly in the event of an emergency,
pushing a medicine cart, and lifting patients in and out of chairs and beds. Complainant
acknowledged that she was not able to perform the above duties and she wanted a permanent
desk or clerical position to accommodate her medical conditions. Complainant however failed to
show that there was a vacant funded position for a desk or clerical work within her restrictions.

Based on the foregoing, assuming (without deciding) that Complainant was an individual with a
disability, we find that Complainant failed to show that she was denied a reasonable
accommodation. Complainant was unable to perform the essential functions of her RN position
due to her limitations. The Agency clearly accommodated her with limited duty assignments
within her limitations since her injury. Also, there is no evidence that Complainant was required
to perform duties beyond her medical limitations.

As stated above, Complainant was subsequently offered a permanent job within her updated
medical limitations. She accepted the job. This matter is not at issue.

Harassment

Regarding the harassment claim, Complainant failed to establish that the alleged actions were
sufficiently severe or pervasive to alter the conditions of her employment such as to state a claim
of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Furthermore, we find that
Complainant failed to show that she was treated less favorably than a similarly situated employee
under similar circumstances. Based on the foregoing, we find that Complainant has failed to
show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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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.
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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 8, 2018
Date