Ginger N.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 17, 20180120152080 (E.E.O.C. Jan. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ginger N.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152080 Hearing No. 460-2013-00113X Agency No. 2003-0580-2013101734 DECISION On May 27, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Registered Nurse Research Coordinator at the Agency’s Medical Center in Houston, Texas. On March 19, 2013, Complainant filed an EEO complaint in which she alleged that the Administrative Officer (AO), the Acting Chief of Staff for Research (ACSR), and others in the Research Service Line discriminated against her on the basis of disability (bilateral pudendal nerve damage in the pelvis region) by denying her request for a reasonable accommodation on January 23, 2013, and by notifying her on February 1, 2013, that her employment would be terminated, effective February 15, 2013. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment 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. 0120152080 2 Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing on October 7, 2013. Complainant submitted her response in opposition on October 23, 2013, to which the Agency further replied on October 25, 2013. The AJ issued a decision without a hearing on April 16, 2015, finding in favor of the Agency. 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 was hired in 1998, under a term appointment to the Research Service Line (RSL) subject to annual renewal. Each year for the next fourteen years after 1998, her term appointment had been renewed. IR 179. Her performance as a Research Coordinator within the RSL had been considered outstanding by the Principal Investigators (PI1, PI2, PI3) as well as by the Administrative Officer (AO) and the Acting Chief of Staff for Research (ACSR). IR 176-77, 219, 305-14. Complainant was involved in a traffic accident in January 2008 in which she was struck by a car and thrown twelve feet. As a result of an injury to her pelvic nerves that she had suffered in the accident, she was diagnosed with a bilateral pudendal neuropathy which caused her to experience ongoing urinary and fecal incontinence. According to her physician’s prognosis, the condition was permanent. IR 174-76, 245-61. Complainant asked for and received a modified telework schedule as a reasonable accommodation. The arrangement allowed her to work at home on a half-time basis. Under the terms of the telework agreement, Complainant had to renew her request for telework every six months and would have to submit medical documentation in support of her request. IR 176-77, 259, 262, 270-97. She received approval throughout 2011 and 2012. IR 189. The telework arrangement for 2012 was set to expire on December 31, 2012. IR 177. Complainant averred that on December 17, 2012, she drafted a letter to the AO asking for an extension of the telework arrangement since it was going to expire on December 31, 2012. IR 177. She further stated that on January 3, 2013, she received an email response from the AO informing her that the telework agreement had expired on December 31, 2012, and that this was the last communication that she had received from the AO regarding her reasonable accommodation request. IR 177-178. In an email dated January 23, 2013, the AO advised Complainant that her telework approval had expired on December 31, 2012, and that she did not have authorization to continue teleworking without the necessary approval. IR 316. In a second email dated the following day, January 24, 2013, the AO stated: “We have received your cover letter requesting an extension for telework; however, we did not receive any supporting medical documentation or support letters from the principal investigators.” The AO further advised Complainant to submit a complete request packet as she had previously done. IR 315. The AO and the ACSR both averred that Complainant had never submitted the requested documentation following the expiration of the telework agreement on December 31, 2012. IR 189-90, 202. 0120152080 3 In a memorandum dated February 1, 2013, the Human Resources Manager notified Complainant that her term appointment would come to an end effective February 15, 2013, and that her employment with the Agency would be terminated as of that date. IR 179, 318-21, 351. Complainant averred that at the time her appointment ended, she had been working on two large medical studies that were slated to continue for several more years. IR 179-80. According to the AO, the decision whether to retain a term-appointed employee depended upon the needs of the RSL, and that she, the ACSR, PI1, PI2, and PI3 had collectively decided to end Complainant’s term. IR 193, 204, 211, 218. The ACSR and PI3 acknowledged Complainant’s outstanding work. IR 205, 219. The AO noted that one of the research projects Complaint was engaged in was about to end. IR 194. ANALYSIS AND FINDINGS 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. Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). An “individual with a disability” is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. Melanie F. v. Dept. of Homeland Security, EEOC Appeal No. 0120150163 (May 19, 2017), citing 29 C.F.R. § 1630.2(g). Factors to determine whether an individual is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long-term impact, or the expected permanent or long term impact of or resulting from the impairment. Arnoldo E. v. Dept. of Justice, EEOC Appeal No. 0120121034 (Oct. 15, 2015) citing 29 C.F.R. § 1630.2(j)(2). Here, the nerve damage to Complainant’s pelvic area 0120152080 4 caused her to experience urinary and fecal incontinence, impairing the major life activity of discharging bodily wastes. We therefore find that she is an 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 such position. Julius C. v. Dept. of the Air Force, EEOC Appeal No. 0120141294 (June 16, 2017), citing 29 C.F.R. § 1630.2(m). Complainant is a qualified individual with a disability in that, with the reasonable accommodation of an adjusted telework arrangement, she was able to perform the essential functions of her position as Research Coordinator while working at home on a half-time basis. Throughout 2011 and 2012, while the accommodation was in effect, her performance remained outstanding. When asked by the EEO investigator what reason the AO and the ACSR had given her for denying her reasonable accommodation request, Complainant replied that they did not give a reason. IR 178. When asked why she believed that her reasonable accommodation was denied, she replied that she had been previously granted the accommodations she had requested and that the demand for her research services had remained unchanged. She also stated that in October 2012, her claim for workers’ compensation had been accepted by the Department of Labor. IR 179. However, the AO and the ACSR both stated that Complainant failed to submit the medical documentation and letters of support from the principal investigators needed to extend the telework arrangement, and Complainant has neither declared in a sworn statement nor presented documents establishing that she had. We find, contrary to Complainant, that the Agency did provide Complainant with a reasonable accommodation for her disability. We agree with the AJ that Complainant has not raised a genuine issue of material fact in this regard. We now turn Complainant’s disparate treatment claim in connection with the ending of her term appointment. To prevail on a such a claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Her first step is generally to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. The prima facie inquiry may be dispensed in this case, since the AO articulated a legitimate and nondiscriminatory reason for ending Complainant’s term appointment, namely that the RSL no longer needed her services. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant may demonstrate pretext by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally 0120152080 5 find them unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that her disability was a factor in the ending of her term appointment, Complainant replied that it was unacceptable that her appointment be allowed to expire despite her level of performance and that she was drawing workers’ compensation benefits. IR 180. Apart from her own assertion, however, Complainant has not presented affidavits, declarations, or unsworn statements from witnesses other than herself or documents which contradict the explanations offered by the AO and the ACSR for their decision to allow her term appointment to expire, or which call into question their veracity. We therefore agree with the AJ that Complainant has not raised a genuine issue of material fact as to the Agency’s stated reason for the expiration of her term appointment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 0120152080 6 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 officialAgency 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 January 17, 2018 Date Copy with citationCopy as parenthetical citation