0120150222
04-05-2017
Sherill S.,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
Sherill S.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150222
Hearing No. 470-2013-00054X
Agency No. 200H-0539-2012103135
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 25, 2014, 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 (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination, reprisal or was denied a reasonable accommodation.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's FAD incorrectly found that Complainant was not subjected to discrimination, reprisal and/or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant, GS-6 at the Agency's VA Medical Center in Cincinnati, Ohio. In May 2011, Complainant asked to be moved from her office location, Room A-541, because she was having allergic reactions, which included symptoms ranging from shortness of breath to headaches and nasal congestion, due to the mold in her office. Complainant was moved to another work space but was ordered back on August 15, 2011, after an air quality test showed negative results. Complainant was told that she could provide medical documentation which would show any medical condition which would preclude her return to her work area.
Thereafter, Complainant vacated her work space a second time in May 2012, again alleging allergic reactions and requesting relocation. Complainant was again instructed to provide medical documentation to support why she could not return to her work station. On September 14, 2012, after Complainant did not comply with the request for medical documentation, she was issued a proposed removal for the continued failure to report to her work area, which was mitigated to a five-day suspension. On December 3, 2012, Complainant was issued a 14-day proposed suspension, and was informed that she would be placed on 14-days of administrative leave, based on a failure to report to her post.
On June 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (heart condition and knee problems), and reprisal for prior protected EEO activity when:
1. From March 30, 2012 to July 5, 2012, the Agency denied her an accommodation for her physical symptoms and she suffered from unsafe working conditions;
2. Effective July 26, 2012, the Resources Specialist, issued her a written order to return to her regular work area or be subject to administrative action;
3. On November 26, and 28, 2012, her third level manager, charged her with absence without leave (AWOL) for refusing to return to her work station in RM A-541; and
4. She was subjected to a hostile work environment based on race (Black), disability and reprisal when:
a. From March 30, 2012 to July 5, 2012, the Agency denied the her an accommodation for her physical symptoms and she suffered from unsafe working conditions.
b. In July 2011, the Administrative Officer, informed her that she should return to her office after environmental testing of her work space.
c. On May 10, 2012, the Employee Health Clinicians, denied her medical treatment by failing to refer her for further medical evaluation of her work-related illnesses.
d. Effective July 26, 2012, the Human Resources Specialist, issued her a written order to return to her regular work area or be subject to administrative action.
e. On September 14, 2012, the Chief of Medical Service issued her a proposed removal.
f. On November 26 and 28, 2012, her third level manager, charged her with absence without leave (AWOL) for refusing to return to her work station in RM A-541.
g. Effective December 3, 2012, she was issued a 14-day proposed suspension, and was informed that she would placed on 14-day administrative leave.
After 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. 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 FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination, reprisal, and harassment as alleged. With respect to claims 1 - 3, the Agency indicated that when Complainant requested the reasonable accommodation of being moved to another office, the Agency complied and relocated her to another office as a temporary measure. In response, to the Reasonable Accommodation Committee's (RAC) request for medical documentation, Complainant submitted a letter dated June 13, 2012 from the Agency's nurse practitioner who had treated her.
The nurse practitioner noted that Complainant's symptoms appeared to improve when she was relocated to another office, and felt that it would be reasonable to reassign Complainant to another office. The RAC informed Complainant that the documentation was not sufficient and by letter dated June 7, 2012, Complainant was asked to provide documentation that would show: a diagnosis and prognosis for Complainant's condition, major life activities implicated, and the type of accommodation needed to enable Complainant to perform her job functions. Thereafter, Complainant was asked to provide medical documentation which explained how mold was related to her diagnoses or treatment, and whether she had been tested for sensitivity to mold or any other substance.
On June 27, 2012, the RAC concluded that "we cannot just move an employee based on personal concern but need a medically valid reason based on full information." The Agency noted that no further documentation of Complainant's alleged sensitivities was ever provided. Also, it was noted that the Agency had three meetings with Complainant regarding the documentation and she maintained that the Agency had its own files/sources from which it could document her need for an accommodation. According to the Agency, Complainant acknowledged that she had tested positive for allergens to dogs, cats, a type of hay, but not for mold. The Agency also determined that it had conducted testing as well as a visual inspection of Complainant's worksite, and attempted repeatedly to secure the required medical documentation. Considering its efforts, and Complainant's failure to medically substantiate her sensitivity to allergens, the Agency found that it did not deny Complainant a reasonable accommodation.
Further, regarding claims 2 and 3, the Agency found that Complainant's disparate treatment claims dealing with her failure to report to her work area were predicated on her allegation that the Agency failed to accommodate her request for relocation, and should not have required that she return to her room. The Agency argued that due to the absence of medical documentation, the Agency was within its rights to expect Complainant to report to her work area, and that it was justified in charging her AWOL for failing to do so.
Lastly, regarding Complainant's harassment claims, the Agency found that with respect to claims 4a, 4d, and 4f, managements actions were not the product of discrimination, but were appropriate under the reasonable accommodation procedures. Similarly, with respect to claims 4b, 4e, and 4g, the Agency maintained that management's actions associated with Complainant's refusal to return to her post cannot be deemed harassment, given the absence of medical documentation to support her need to work elsewhere and her failure to report to the office space at issue, despite multiple requests and meetings to obtain the necessary medical documentation.
Regarding claim 4c, i.e., the nurse failing to adequately diagnose and refer Complainant, the Agency maintained that this allegation lacked any demonstration of discriminatory animus towards Complainant because the nurse supported her request to move her office. The Agency argued that while Complainant may have felt that her treatment was inadequate, she provided no proof that any treatment decision was based on her race, disability or previous EEO activity. The Agency concluded that there was no evidence that the treatment provided by the facility nurse was inadequate or harassing, and no evidence that disciplinary action taken toward Complainant was unjustified, given Complainant's failure to provide medical documentation supporting her refusal to report. Therefore, the Agency determined that Complainant did not demonstrate by a preponderance of the evidence that she was subjected to discrimination, reprisal, and/or harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, argues that patients and employees have suffered or died from complications of asbestos and high levels of mold. She also states that these conditions have exacerbated her heart condition as well as other medical conditions.
In response, the Agency, among other things, maintains that as to claims 1 through 3, Complainant and the Agency had engaged in the interactive process regarding her request to be relocated to a different office. Complainant, however, did not provide sufficient medical documentation with respect to her alleged sensitivity to mold, which was the basis for her request. Moreover, the Agency contends that Complainant did not address the merits of the issues set forth in the FAD. Despite repeated requests for additional documentation as to how her symptoms related to her impairment, the Agency contends that Complainant's submissions did not address its inquires.
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").
ANALYSIS AND FINDINGS
Claim 1
Assuming, for the purposes of this decision, that Complainant is a qualified individual with a disability, we find that she has not demonstrated that she was denied a reasonable accommodation. We note in this regard that an individual is not entitled to reasonable accommodation when the need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012). Here, the record indicates that Complainant was asked to provide medical documentation that would show: a diagnosis and prognosis for her condition, major life activities implicated, the type of accommodation needed to enable her to perform her job functions, to explain how mold was related to her diagnoses or treatment, and whether she had been tested for sensitivity to mold or any other substance. Complainant, after repeated requests to provide the requested information, did not do so. As Complainant's disability and need for accommodation were not obvious, we find that she did not present medical documentation sufficient to establish that she needed a reasonable accommodation. As noted above, Complainant acknowledged that she had tested positive for allergens to dogs, cats, and hay, but not for mold.
Claims 2 and 3
Regarding her disparate treatment claims, claims 2 and 3, we find that Complainant was ordered to return to her work area after both a visual test and air quality test were conducted and mold was not seen or detected. Furthermore, Complainant was charged with AWOL after she refused to return to her work station after being told to do so. Complainant did not present any persuasive evidence that discriminatory animus was involved regarding management instructing her to return to her workplace. Therefore, we also find that Complainant did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
With respect to the harassment allegations, claims 4 a-g which were discussed above, we find that, for the most part, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency with respect to claims 1, 2, and 3 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We also find that she has not presented persuasive evidence that matters complained of were sufficiently severe or pervasive that they would establish a hostile work environment. Regarding her claim that the Nurse Practitioner failed to properly treat her, we find that even if true, there is no evidence that it was due to Complainant's race, disability or previous EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not prove her case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
_4/5/17_________________
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.
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