0120152853
03-15-2016
Akiko L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Akiko L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152853
Hearing No. 410-2015-00043X
Agency No. 200I-0508-2010102695
DECISION
Complainant filed an appeal from the Agency's September 10, 2015, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below, the Commission affirms the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing finding that Complainant did not demonstrate that she was subjected to discrimination when her request for reasonable accommodation was denied and/or when there was a delay in the Agency's response to her request for reconsideration of the accommodation decision.
ISSUES PRESENTED
The issues presented are whether Complainant was subjected to discrimination when her request for reasonable accommodation was denied and whether she was subjected to discrimination when the Agency's response to her request for reconsideration of its accommodation decision was untimely.
BACKGROUND
Complainant worked as a Medical Technician at the VA Medical Center in Decatur, Georgia. On June 10, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (diabetes, arthritis, tendinitis, and fibromyalgia), age (56), and reprisal when: (1) on March 23, 2010, Complainant's request for reasonable accommodation was denied; and (2) on April 5, 2010, Complainant asked for reconsideration of her accommodation request, and the Agency failed to respond.
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 AJ. Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's Motion for Summary Judgment in favor of the Agency on June 10, 2015. The AJ found that the following facts were undisputed: On July 21, 2009, Complainant submitted a request for reasonable accommodation stating that she needed a reassignment and modification of her workstation. Specifically, Complainant requested a quieter workstation away from her coworkers and time off for medical appointments. She also requested a modification of her work station to include an ergonomic adjustment. Complainant was instructed to go to the Employee Health Center to discuss the ergonomic adjustment request but she indicated that she did not have time to go.
On December 1, 2009, the Reasonable Accommodation Review Committee (Committee) notified Complainant that there was insufficient medical documentation to grant her request. She was told that they needed additional information to determine her eligibility for the requested accommodation. The Committee thereafter notified Complainant of the specific documentation needed from her medical provider.
In response to this request, Complainant's medical provider responded that Complainant had anxiety and depression associated with her medical conditions. He did not include the clinical findings in his response as requested by the Committee, but listed the medical-related visits of Complainant, partially referencing, an undated medical evaluation, monthly doctor visits, and a diabetic education program. As to the precise accommodation, the medical provider recommended that a quieter workstation away from her coworkers and supervisor would alleviate some of the pain and stress from her arthritis, as well as time off for medical appointments would allow her to perform her duties.
On March 23, 2010, the Committee denied Complainant's request stating that the accommodations requested would be ineffective and the medical documentation was inadequate and not supportive of her request. On April 5, 2010, Complainant requested reconsideration of her accommodation request but provided no new medical documentation. Complainant stated that she did not provide any additional medical information because she and her doctor could not determine the type of information the Committee needed for review. Complainant stated that she believed that she had established her disability when she was provided a prior ergonomic assessment of her work space and received a chair due to her arthritis. On September 21, 2010, Complainant received a response from her reconsideration request upholding the Committee's previous decision.
Complainant alleged that she was treated differently than a disabled coworker, who was approximately 47 years old, with no EEO activity of which Complainant was aware. Complainant stated that she was not aware if the coworker requested a reasonable accommodation through the Reasonable Accommodation Review Committee, but knew that the coworker had gotten what she wanted by going to the Employee Health Center.
In regards to her prior EEO activity, Complainant stated that she filed a prior complaint regarding her disability. She stated that she believed those on the Reasonable Accommodation Committee were aware of her EEO activity because one of the deciding officials had previously worked in personnel and Complainant had obtained her current position because of a complaint. She also stated that she was not certain if the other deciding official was aware of her EEO activity.
Both officials indicated that they took no action against Complainant based on her disability, age, or prior EEO activity and stated that they were unaware of any prior EEO activity. They both explained that Complainant failed to provide sufficient medical information so that the Reasonable Accommodation Review Committee could assess whether she was a qualified individual with a disability. In regards to her claim that the Agency failed to respond to Complainant's request for reconsideration, the official acknowledged that there was a delay in responding to her request for reconsideration, but indicated that she was ultimately provided with a response. Further the officials maintained that there was no record of Complainant having a prior approved accommodation.
The AJ granted the Agency's request for a decision without a hearing finding that there were no material facts at issue. The AJ found that Complainant failed to establish a prima facie case based on disability, age, or reprisal. The AJ determined that Complainant failed to show that she was treated differently than similarly situated individuals not in her protected group. While Complainant listed a comparator, the evidence failed to show that the comparator was truly similarly situated to Complainant, since Complainant went through the reasonable accommodation process and the comparator went through the Employee Health Center. Additionally, the AJ found that Complainant failed to prove that either official was aware of her prior EEO activity.
Notwithstanding, the AJ found that even assuming arguendo that Complainant was able to establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant's request for reasonable accommodation was denied because she failed to provide sufficient medical documentation for consideration even though the Agency communicated to her what was specifically needed to determine whether she was a qualified individual with a disability. Complainant did not provide the Committee with the requested information. The request was also denied because the information that she did provide did not explain how her request would help her to do her work. The AJ determined that the nexus between Complainant's disability and the accommodation request was unclear. The AJ concluded that Complainant failed to establish that the Agency's articulated reason for its actions were pretextual.
Lastly, while there was a significant delay in responding to Complainant's request for reconsideration, the AJ found that Complainant was ultimately provided a response. The AJ determined that any delay in responding was not based on any discriminatory reason since Complainant did not include any additional medical documentation with the request.
The Agency adopted the AJ's findings and the instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant does not dispute the AJ's findings but maintains that her supervisor has refused to pay her for the overtime that she had completed. She also maintains that she has been subjected to bullying and has not been properly considered for overtime.
The Agency asserts that the AJ's decision finding no discrimination with respect to the denial of Complainant's reasonable accommodation request should be affirmed as the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant failed to provide medical documentation that supported her request. The Agency asserts that Complainant did not demonstrate that the Agency's actions were pretext for discrimination.
ANALYSIS AND FINDINGS
First, we must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. In order to successfully oppose a decision by summary judgment, 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Thus, we find ample support for the AJ's decision that the record was adequately developed and that there were no disputes of material fact.
Reasonable Accommodation
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
In the instant case, assuming Complainant is an individual with a disability, we find that Complainant did not provide the Committee with the medical documentation needed to determine whether she was a qualified individual with a disability. Despite several requests for the necessary documentation and specifics as to what was needed, Complainant did not provide the necessary medical documentation. As such, her request for accommodation fails as she did not provide the material needed to make a decision. The Commission has held that, if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012).
Disparate Treatment
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). Once the Agency has met its burden, 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).
We find that Complainant failed to establish a prima facie case of discrimination on the bases of age, disability, and reprisal for prior protected EEO activity. Complainant failed to show that she was treated differently than similarly situated individuals not in her protected group, since the employee, to whom Complainant compared herself did not request accommodation through the channels that Complainant did. We also find that Complainant failed to prove that either official was aware of her prior EEO activity. Even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant did not provide the requested medical documentation. We also find that Complainant did not demonstrate that she was discriminated against with respect to the delay in the Agency's response to her request for reconsideration of her accommodation request because she did not provide any new medical documentation that would have changed the Agency's decision.
Finally, with respect to Complainant's contentions on appeal, we find that her assertions have nothing to do with the instant case. If Complainant believes that she is being subjected to new acts of discrimination she is advised to contact her local EEO Counselor. Accordingly, 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 order, which adopted the AJ's decision finding no discrimination with respect to the denial of her accommodation or the delay regarding her request that the Agency reconsider that denial.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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. signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/15/16________________
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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