Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120110565 (E.E.O.C. May. 22, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120110565

Hearing No. 551-2009-00135X

Agency No. 200P-0648-2008104123

DECISION

On October 23, 2010, Complainant filed an appeal from the Agency’s September 20, 2010,
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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant at the Agency’s facility in Portland, Oregon. Complainant was hired into a temporary
appointment with a “not to exceed” date of January 7, 2009, which was later extended until
May 31, 2009. On November 12, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of her disability (hearing impairment) and in
reprisal for prior protected EEO activity when:

1. since March 19, 2008, management has failed to provide Complainant with a
reasonable accommodation;
2. on July 14, 2008, management temporarily relieved Complainant of the duties of
answering the telephones and responding to codes;
3. from July 16 through August 25, 2008, Complainant was assigned alternate duties
as developed by the unit charge nurse and a co-worker;
4. on September 2, 2008, management reassigned Complainant from the Intensive
Care Unit (ICU) to the Pharmacy;
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5. from February 7, 2008 through April 1, 2009, Complainant was subjected to 23
incidents of harassment by management and co-workers; and
6. on April 1, 2009, Complainant learned that management withheld information about
a permanent Medical Support Assistant position in order to prevent her from
applying.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case found that, after viewing the evidence in a light most favorable to Complainant, a decision
without a hearing was appropriate as there were no genuine issues of material fact in dispute.
The AJ issued a decision without a hearing on August 26, 2010. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. Complainant makes no arguments on appeal.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from an agency 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). 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 102, 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, it is not
appropriate for an AJ to issue a decision without a hearing. In the context of an administrative
proceeding, an AJ may properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition. Petty v. Defense
Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. Under the Commission’s
regulations, an agency is required to make reasonable accommodation of the known physical
and mental limitations of a qualified individual with a disability unless the agency can show
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that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. “Reasonable
accommodation” is defined in part by our regulations as “‘[m]odifications or adjustments to the
work environment, or to the manner or circumstances under which the position held or desired
is customarily performed, that enable a qualified individual with a disability to perform the
essential functions of that position.” 29 C.F.R. § 1630.2(o)(ii). Here, in order to be entitled to
protection from the Rehabilitation Act, complainant must show that she is a “qualified
individual with a disability.” We conclude that Complainant has not shown that she is a
“qualified” individual with a disability. 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 who,
with or without reasonable accommodation, can perform the essential functions of the position.
29 C.F.R. § 1630.2(m).

In this instant matter, we concur with the AJ’s determination that Complainant could not
perform the essential functions of her position. With respect to claims (1)-(4), the record
reflects that Complainant was hired into a temporary appointment with the primary duties of
the Medical Support Assistant position including answering telephone calls, responding to
codes and pages over the hospital public address system, and relaying information to
coworkers regarding calls, codes, and pages. The record shows that management officials
received numerous complaints from doctors attempting to respond to emergency pages, as well
as from patients’ families, regarding difficulties in communicating over the telephone with
Complainant, Complainant hanging up on callers, and with her inability to relay messages.

On March 19, 2008, Complainant requested that she be provided with a reasonable
accommodation. Specifically, Complainant requested that she be permitted to transfer phone
calls where she needed assistance in hearing and comprehending the caller, and that her co-
workers be informed of her hearing impairment and the need for an accommodation. In
response, the Agency directed Complainant to provide medical documentation to support her
request. Complainant failed to provide responsive medical documentation. However, in the
interim, Complainant’s manager notified her that she was being temporarily relieved of the
duties of answering telephones and responding to codes. Complainant submitted a letter from
her audiologist, dated August 8, 2008, stating that the Washington State Division of Vocational
Rehabilitation (DVR) should be contacted to conduct a workplace assessment of Complainant’s
position, and determine what accommodations would be effective. The Agency agreed to the
DVR assessment, but again informed Complainant she had not provided sufficient medical
documentation to support her accommodation request.

An initial DVR workplace assessment was conducted on August 26, 2008, and pending the
outcome of that assessment, Complainant was temporarily reassigned to duties in the Pharmacy,
effective September 2, 2008. As a result of the first assessment, Complainant was issued
assistive devices and was returned to her position in the ICU on March 2, 2009. At this point,
the Agency also provided Complainant with eight weeks of reorientation training to help
improve her job performance. A second DVR workplace assessment was conducted shortly
after Complainant’s return to the ICU. On March 19, 2009, management received an email
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from the DVR recommending that Complainant be removed from her position in the ICU as
her medical restrictions “cannot be addressed effectively through communication technologies
given the nature [of Complainant’s disability] and the dynamics of [the ICU].” The DVR email
further stated that Complainant should be moved to “a position that does not have health and
safety concerns for [her], co-workers, and patients.” In response to this information, the
Agency attempted to locate a vacant, funded position for which Complainant was qualified but
none were available. Complainant’s temporary appointment expired on May 31, 2009.

Accordingly, we find that Complainant is not a “qualified” individual with a disability as she
could not perform the essential functions of the Medical Support Assistant position, and she
was unable to find any effective accommodation that would have permitted her to perform the
essential functions. Further, we concur with the AJ’s determination that the Agency went
beyond its duties under the Rehabilitation Act by removing essential functions from
Complainant’s position in the ICU. In so finding, we note that an agency is not required to
remove any of the essential functions of a position as a reasonable accommodation. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act, Notice No. 915.002 (rev. Oct. 17, 2002). As such, we find
that Complainant has failed to show that the Agency violated the Rehabilitation Act or failed to
provide her with a reasonable accommodation.

As to Complainant’s claim that she was subjected a hostile work environment, harassment of
an employee that would not occur but for the employee’s race, color, sex, national origin, age,
disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is
hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Enforcement Guidance at 6. The Supreme Court has stated that; “Conduct that is not severe or
pervasive enough to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510
U.S. at 22 (1993).

To establish a claim of hostile work environment, Complainant must show that: (1) she belongs
to a statutorily protected class; (2) she 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 her 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
performance and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). The harasser’s conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim’s circumstances. Enforcement Guidance at 6.

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Here, we again concur with the AJ’s determination that Complainant failed to show that
incidents alleged had the purpose or effect of unreasonably interfering with her work
performance and/or creating an intimidating, hostile, or offensive work environment. The
record shows that the majority of the incidents alleged by Complainant relate directly to her
inability to perform the essential function of her position, including numerous instances of
confusion among her co-workers as to what duties Complainant was assigned to perform, and
the Agency’s attempts to obtain sufficient medical documentation to support Complainant’s
reasonable accommodation request. We further find that viewing the evidence in a light most
favorable to Complainant, and assuming the incidents occurred as alleged, they were not so
severe or pervasive so as to create a hostile work environment.

Finally, as to claim (6), we concur with the AJ’s determination that Complainant failed to
provide any evidence, beyond her mere assertions, to show that the Agency withheld
information about a permanent Medical Support Assistant position. In so finding, we note that
Complainant does not dispute that management officials provided her with information on how
to apply for a permanent position, and the record contains no evidence to show how she was in
any way prevented from applying for the position at issue.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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,
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 22, 2013
Date