Brenton W.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 5, 2018

0120160178 (E.E.O.C. Mar. 5, 2018)

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

Brenton W.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120160178

Hearing No. 443-2015-00069X

Agency No. 200J-0550-2014103665

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2015
final order concerning his 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. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Chief of Pathology
and Laboratory Medicine at the Agency’s Illiana Healthcare System in Danville, Ohio.
Complainant has the condition of Tourette syndrome, a condition associated with obsessive
compulsive disorder. Complainant experiences complications from the condition including
uncontrollable movements and/or sounds, including offensive language. Complainant explained
that his condition can be stimulated by interruptions or being startled.

Complainant entered duty with the Agency on September 30, 2013, on a probationary period.
On his first day at work, Complainant claimed that he informed the Supervisory Medical

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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Technologist (S1) that he had a nervous condition and needed accommodation with work flow.
Additionally, Complainant claimed that he told S1 and the Secretary that he experienced panic
attacks or temper tantrum-like reactions and can appear very hostile. Both S1 and the Secretary
were subordinate to Complainant. Complainant stated that he preferred written communications
rather than phone calls and he came to work early in the morning to limit his interactions with
co-workers when his symptoms were most prevalent. Additionally, Complainant instituted a
system of inboxes for documentation for him as the Chief of Pathology to prevent interruptions
and to avoid startled reactions.

Around March or April 2014, the Chief of Staff began receiving complaints about Complainant’s
behavior, which included angry emails and outbursts. In April 2014, the Chief of Staff issued
Complainant his mid-year performance review. Therein, the Chief of Staff informed
Complainant that his clinical performance was good; however, she expressed concern with
Complainant’s interpersonal communication skills and asked that he address those skills through
the Agency’s education department.

In May 2014, the Secretary discovered an error in a report template developed by Complainant
and raised the matter with S1. S1 asked Complainant to discuss the matter in the office, but
Complainant became upset and accused the Secretary of being responsible for the error.
Complainant claimed that S1 inappropriately yelled at him in the hallway about the matter. The
Secretary filed a Report of Contact regarding the incident, and S1 reported the matter to the
Chief of Staff. On May 9, 2014, the Chief of Staff’s office emailed Complainant about the
templates and instructed Complainant to discontinue using them until the discovered
discrepancies could be reviewed and resolved. On May 15, 2014, Complainant attended a
meeting with the Chief of Staff and S1 to discuss the matter. Complainant continued to argue
that the Secretary was to blame for the errors. Complainant claimed that S1 was argumentative
and talked over him during the meeting. Following the meeting, the Chief of Staff again notified
Complainant to return to the previous method of using cassette dictation to complete pathology
reports. Complainant continued to resist the Chief of Staff’s instructions.

On May 19 and 20, 2014, Complainant went out on leave. While Complainant was on leave,
Quality Management began reviewing the templates Complainant implemented. Complainant
believed it was unfair for Quality Management to conduct the review while he was out on
approved leave. Additionally, Complainant left instructions for his associate pathologists that
conflicted with the Chief of Staff’s instructions. On May 19, 2014, S1 instructed the Staff
Pathologist to use the cassette tapes for reports. On May 19 and 20, 2014, Complainant
repeatedly called the Staff Pathologist in a threatening and unprofessional manner after he
learned that she was told not to use the template.

On May 21, 2014, Complainant alleged that the Chief of Staff met with him and asked him to
resign from his position. Complainant stated that he refused to resign. That same day,
Complainant claimed that he requested reasonable accommodation from the EEO Program
Manager. On May 28, 2014, Complainant formally requested reasonable accommodation with
the Reasonable Accommodation Coordinator/Labor Relations Specialist. Complainant
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specifically requested “tolerance from all staff” and a copy of the agenda for any meetings to
help him focus. On May 29, 2014, the Reasonable Accommodation Coordinator requested
medical documentation in support of his request. On June 2, 2014, Complainant submitted
documentation from his doctor which indicated that Complainant needed “tolerance” and for
individuals to “ignore [Complainant’s] symptoms rather than draw attention to it.”

On June 16, 2014, the Reasonable Accommodation Coordinator denied Complainant’s
reasonable accommodation request noting that simply ignoring Complainant would impede the
effectiveness of the service by “causing employees to not fully understand [Complainant’s]
instructions or direct orders as they would not know [his] meaning.” Additionally, the
Coordinator noted that Complainant’s medical documentation indicated that “no activities are
impaired.” Further, the Coordinator noted that employees were already expected to be tolerant
of all employees regardless of medical condition.

On June 5, 2014, the Chief of Staff rated Complainant’s performance as unacceptable and
requested that a Professional Standards Board (PSB) be convened to review his workplace
conduct. On June 8 and 9, 2014, the PSB conducted its examination of Complainant’s conduct
including numerous reports of unprofessional behavior and inappropriate conduct directed at
other employees. On June 19, 2014, the PSB recommended against retaining Complainant based
on his failure to follow instructions to not use the template and his unprofessional conduct
toward staff. The Director received and concurred with the PSB’s recommendation. On June
23, 2014, the Director issued Complainant a notice separating him during his probationary
period, effective July 8, 2014.

On July 29, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the basis of disability when:

1. Beginning October 1, 2013 through June 23, 2014, management failed to comply
with his reasonable accommodation request;

2. On May 7, 2014, the Supervisory Medical Technologist (S1) yelled at him in the
hallway;

3. On May 15, 2014, during a Chief of Staff meeting, S1 attempted to provoke his
medical condition by accusing him of being hostile;

4. On May 21, 2014, he was asked to resign from his position;

5. On June 23, 2014, he was terminated during his probationary period.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
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case granted summary judgment in favor of the Agency, and issued a decision on October 5,
2015.

In the decision, the AJ initially determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the conduct at issue was based on discriminatory animus. For example, with
regard to the May 7, 2014 incident, the Secretary brought an error in a template to S1’s attention,
which he discussed with Complainant. Because Complainant accused the Secretary of making
the error, S1 told Complainant to stop discussing the matter in the hall. Complainant became
very upset with S1 and accused S1 of screaming and yelling at him in the hallway. With respect
to the May 15, 2014 meeting, Complainant continued to assert that the Secretary was the
problem, not the system. The other employees in the meeting confirmed that Complainant raised
his voice at S1 and became angry. The Chief of Staff directed Complainant not to raise his voice
in a professional setting. The Chief of Staff’s assistant corroborated, stating that Complainant
was verbally abusive, unprofessional, and demeaning toward S1.

Regarding his termination, the AJ determined that the PSB had a wealth of evidence to conclude
that Complainant was disrespectful toward staff and failed to follow the Chief of Staff’s
instructions regarding the template. Numerous employees submitted statements describing
Complainant’s angry outbursts, including throwing a scalpel to the floor, and abusive behavior
toward subordinates. Complainant blamed everyone but himself for his disrespectful behavior.
Complainant claimed that S1 was a bully; however, no witness supported his characterization of
S1. Further, S1 was subordinate to Complainant.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination
or a hostile work environment as alleged.

Finally, as to his reasonable accommodation denial claim, the AJ found that there was no
evidence that Complainant requested an accommodation prior to his performance deficiencies.
More specifically, Complainant admitted that he never told Agency officials about his condition
until May 21, 2014, when the Director informed him that she was convening a PSB and asked
him to resign. Even assuming that management “suspected” he had Tourette syndrome,
Complainant never requested any accommodation other than the inboxes. Additionally, the AJ
noted that the Agency did not have to excuse those instances of Complainant’s behavior that
violated a conduct rule even if the behavior was the result of his condition. As a result, the AJ
concluded that Complainant had not been denied reasonable accommodation in violation of the
Rehabilitation Act.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ was biased against people with mental disabilities
and was dismissive and frustrated that he was proceeding with his case. Further, Complainant
argues that the AJ dismissed his case without a careful review of the facts. Complainant claims
that he was unaware that his behavior was a problem and had he known sooner, he would have
requested an accommodation. Complainant contends that management officials provided false
statements in denying that they had knowledge about his condition. Accordingly, Complainant
requests that the Commission reverse the final order. The Agency submitted a statement in
opposition to Complainant’s appeal in which it urged the Commission to affirm its
implementation of the AJ’s decision finding no discrimination.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he 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 his
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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he 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 his disability. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a 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. For
example, with respect to claim (2), S1 explained that the Secretary brought an error in a report
template developed by Complainant to his attention in May 2014. ROI, at 202. S1 stated that
he, the Secretary, and the backup secretary looked at the issue and determined that it was not an
error that the Secretary could have committed. Id. S1 affirmed that he attempted to discuss the
matter with Complainant; however, Complainant immediately became upset. Id. S1 denied
yelling or raising his voice at Complainant. Id. Regarding claim (3), S1 denied trying to
provoke Complainant during the May 15, 2014 meeting. Id. at 203. S1 stated that Complainant
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was instructed by the Chief of Staff to not use the template procedure until it had been reviewed
and determined to be safe. Id. S1 affirmed that Complainant got very upset during the meeting,
when asked whether they were still using the templates, talked over the Chief of Staff, and yelled
at him as they walked back to the office. Id.

As to claims (4) and (5), the Chief of Staff denied asking Complainant to resign. ROI, at 183.
The Chief of Staff stated that she may have given Complainant a letter of expectation as his
conduct and behavior as a supervisor was intimidating to his direct reports. Id. Additionally,
Complainant was not following her instruction to discontinue using the templates for completing
reports and was instructing his direct reports to continue using the templates. Id. at 186-87. The
Chief of Staff confirmed that she discussed the matter with the Director who asked her to initiate
a PSB review. Id. at 187-88. On June 6, 2014, the PSB was convened and reviewed
Complainant’s interactions with staff. ROI, Ex. C8. Ultimately, the PSB concluded that
Complainant was a good clinician; however, he had numerous documented conduct problems
that started to occur within a few weeks of the beginning of his employment with the Agency.
Agency’s Motion for Summary Judgment, Ex. 3. As a result, the PSB did not recommend
retention of Complainant based on numerous instances of inappropriate workplace conduct. Id.
The Director reviewed the PSB’s summary review and concurred with its recommendation. As a
result, the Director issued Complainant a notice of Separation During Probationary Period
effective July 8, 2014. ROI, at 252.

The Commission agrees with the AJ that Complainant has not shown that he was subjected to a
discriminatory hostile work environment. Moreover, to the extent Complainant claims that he
was subjected to disparate treatment, the Commission finds that, as discussed above,
Complainant has not proffered any evidence from which a reasonable fact finder could conclude
that the Agency’s explanation for its actions was pretext for discrimination. As a result, the
Commission finds no basis to disturb the AJ’s summary judgment decision finding that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

Denial of Reasonable Accommodation

The Commission notes that 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. To establish a denial of reasonable accommodation, Complainant must show that: (1)
he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide a reasonable accommodation. The Commission will assume without deciding (for the
purposes of this decision) that Complainant is an individual with a disability.

Here, Complainant claimed that he informed S1 and the Secretary that he had a “nervous
disorder” when he initially reported for duty and that he needed to use a system of inboxes. ROI,
at 121. S1 and the Secretary were Complainant’s direct reports, and there is no evidence that
Complainant informed management about his condition at that time. Additionally, Complainant
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stated that he began work earlier in the morning to lower his stressors and that he requested
employees knock on his door to ask before interrupting or disturbing him. Id. Complainant
acknowledged that these accommodations were granted; however, he believed that S1 compiled
a secret dossier instead of attempting to help him when he appeared hostile. Id. at 123. In April
2014, Complainant learned that the Chief of Staff had received complaints about his use of
offensive language; however, he admitted that he did not inform the Chief of Staff about his
condition or its symptoms. Id. at 123. The record evidence demonstrates that Complainant did
not inform anyone in management about his condition or seek formal accommodations until the
May 2014 meeting in which he claimed he was asked to resign. Id. at 128.

On May 27, 2014, Complainant formally requested reasonable accommodation in the form of
“tolerance from all staff” and an agenda prior to meetings. ROI, at 590. Complainant’s
submitted medical documentation indicated, however, that there no duties that he was unable to
perform. Id. at 601. Complainant’s doctor requested that his co-workers “ignore symptoms
rather than draw attention to it” and that “with tolerance…he will have no trouble adjusting to his
role and performing leadership role.” Id. at 601-02. The Reasonable Accommodation
Coordinator denied Complainant’s request as Complainant’s medical documentation indicated
that “no activities were impaired” and simply ignoring Complainant would cause his direct
reports to not fully understand his instructions. Id. at 604-05. Furthermore, the Coordinator
noted that all employees were already expected to be tolerant of all employees. Id. Complainant
was subsequently issued a separation notice on June 23, 2014.

The record indicates that Complainant claims that he was denied accommodation in the form of
tolerance for the symptoms of his condition which may manifest in the appearance of hostility,
including his facial expressions and voice tones. The evidence does not support that
Complainant informed anyone in management of his condition or his need for an
accommodation prior to multiple reports of inappropriate workplace conduct. A reasonable
accommodation is always prospective, meaning that even once Complainant disclosed his
disability and requested reasonable accommodation, he was entitled to accommodation only
from the date of such disclosure. An employer is not barred from imposing discipline or
terminating an employee who, because of a disability, violated a conduct rule that is job related
for the position in question and is consistent with business necessity. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). Numerous staff members had
complained about Complainant’s inappropriate and unprofessional behavior and Complainant
had challenged and ignored the Chief of Staff’s instructions regarding discontinuing the use of
the reports templates prior to his request for accommodation. Accordingly, the Commission
finds that the Agency did not deny Complainant reasonable accommodation in violation of the
Rehabilitation Act.

CONCLUSION
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After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the EEOC Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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)
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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

March 5, 2018
Date