0120101751
08-11-2010
Glen E. Graening, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Glen E. Graening,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101751
Agency No. 200J-0515-2009102808
DECISION
On March 18, 2010, Complainant filed an appeal from the Agency's January 28, 2010, final decision concerning his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse/Registered Nurse at the Veterans Affairs Medical Center in Battle Creek, Michigan. Report of Investigation at 144.
On June 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and disability (attention deficit disorder/unspecified learning disorder, sleep apnea, cervical neck pain) when:
1. On February 19, 2009, management did not grant his request for reasonable accommodation in the form of a private office, time off for treatment, a larger or dual computer monitor(s), database training, and a flexible work schedule.
2. On April 1, 2009, the facility terminated Complainant during his probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims that the Agency did not conduct a complete and thorough investigation. Complainant notes that both parties agree that he could perform the requirements of the job and that his performance was not the reason for his termination. Complainant states that his doctor took him out of work for 2 weeks beginning on January 27, 2009. He states that during the time he was off from work he communicated almost daily with the Agency. Complainant disputes the Agency's contention that he had no sick or annual leave available as of January 27, 2009. Complainant argues the Agency improperly denied his request for time off to obtain the necessary documentation to support his request for reasonable accommodation.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she 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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p).
At the outset, we find the record is adequately developed. In the instant case, we will assume without deciding that Complainant is a qualified individual with a disability. The record reveals Complainant first made a verbal request for a reasonable accommodation to the Agency on January 26, 2009, for an unspecified disability. ROI at 150-151. Complainant followed up on his request for reasonable accommodation in a letter dated February 2, 2009, again without specifying the claimed disability or the difficulties he is allegedly having with his job. ROI at 183. In his February 2, 2009 letter, Complainant requested to use sick leave to seek medical evaluation (for a previously diagnosed condition), flexibility with work hours so he can have a quiet, uninterrupted work time/environment, and that he be allowed to work additional time beyond his normal tour of duty unpaid. Id. The Agency sent Complainant a letter on February 19, 2009, requesting that Complainant provide additional medical documentation to support his request for reasonable accommodation, including a detailed description of the exact medical condition he is claiming and documentation supporting a need for the requested accommodation. ROI at 187. Complainant never provided the Agency with the additional medical documentation requested.
Upon review, we find that Complainant has not shown that the Agency denied him a reasonable accommodation. In particular, we find that Complainant failed to provide the Agency with the requested medical documentation so that the Agency could properly consider his request and provide him with an effective accommodation. Despite Complainant's contention, we note the Agency is not required to grant Complainant time off to gather the necessary medical documentation to support a request for reasonable accommodation. It is clear that the Agency sought to accommodate Complainant when it tried to engage him in the interactive process designed to identify the nature of the disability and the actions necessary to accommodate the disability. Moreover, in the present case, we find that it was reasonable for the Agency to request this medical documentation.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated le-gitimate and nondiscriminatory reasons for its conduct. 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 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on sex and disability we find that the Agency articulated legitimate nondiscriminatory reasons for its actions. Specifically, the record reflects that on January 26, 2009, Complainant sent an electronic mail message to his supervisor stating that he was resigning effective February 13, 2009. ROI at 210. Later in the day on January 26, 2009, Complainant sent his supervisor a second electronic mail message stating that he would be resigning effective immediately and that he would be going to Human Resources concerning clearing the station. ROI at 211. Human Resources contacted Complainant's supervisor following the second electronic mail message and stated that instead of resigning Complainant intended to request a reasonable accommodation. ROI at 150-151. The Agency notes that although Complainant was informed by Human Resources of the need to inform his supervisor of his intentions and to request leave from her, he did not do this. Id. at 151. The Agency states that since Complainant did not have sufficient sick leave to cover his absences, his supervisor charged him Absent Without Leave (AWOL). Id. Complainant's supervisor requested a Summary Probationary Review Board review alleged proficiencies in Complainant's performance and his abuse of unplanned sick leave and his AWOL status. ROI at 155. The Nurse Professional Standards Board conducted a summary review on March 5, 2009, and recommended Complainant be removed from employment, noting that he failed to provide justification for his AWOL and that he had previously been counseled for use of unauthorized absence. ROI at 181-182. Complainant has failed to show that the Agency's action in removing him were a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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, 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
August 11, 2010
__________________
Date
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0120101751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101751