Kenny M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120171012 (E.E.O.C. Dec. 14, 2018)

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

Kenny M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120171012

Agency No. 200P06002014105011

DECISION

On January 14, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 21, 2016, 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 (FAD).

ISSUES PRESENTED

Whether the FAD properly found that Complainant did not establish he was subjected to
discrimination based on disability when (1) on December 11, 2013, he was denied a requested
reasonable accommodation; and (2) on the bases of sex (male), reprisal (instant complaint) and
disability (cornea dystrophy) when:

(a) On August 20, 2014, he was detailed from the inpatient clinic;
(b) On October 10, 2014, he received an unsatisfactory proficiency report;
(c) On December 12, 2014, he was assigned to non-patient care/administrative duties; and
(d) On April 23, 2015, he was terminated during his two-year probationary period.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse,
VN610-1 Level III, Step 6 (RN) at the Agency’s VA Medical Center facility in Long Beach,
California. The Agency’s FAD thoroughly discussed the facts in the record, and the instant
decision incorporates them as stated. On December 24, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against him as articulated in the statement of the
Issues Presented above. 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
Equal Employment Opportunity Commission Administrative Judge. 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, in addition to reiterating and summarizing many of the arguments from his underlying
complaint, Complainant presents evidence which he alleges was omitted, or alternatively not
considered by the Agency in rendering its FAD.

STANDARD OF REVIEW

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. (Aug. 5, 2015) (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”).

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII or Rehabilitation Act case alleging discrimination is a three-
step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt
v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant
must initially 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
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
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must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v.
Hicks, 509 U.S. 502, 519 (1993).

Claims 2(a), (b), (c), and (d)

Assuming, arguendo, that Complainant established a prima facie case of discrimination on the
bases of sex, disability, and reprisal, we find that record evidence supports the FAD’s conclusion
that he did not show that the Agency’s reasons for the alleged discriminatory actions were
pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the
detail, unsatisfactory proficiency report, reassignment, and termination, and that Complainant
failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.

The record reflects that Complainant was detailed from the inpatient clinic to the outpatient clinic
after a series of issues with his performance. Complainant’s first-level supervisor S1 contends that
Complainant’s performance was not meeting expectations, and that he did not have a good
relationship with the RNs in the unit. The record reflects numerous complaints of Complainant
withholding patient medication against doctor’s orders; giving incomplete patient reports; and not
knowing his appointment schedule. The supervisor in the outpatient clinic, S2, agreed to retrain
Complainant in the outpatient setting since she had an open space. Believing that S1 wanted
Complainant to start over with a clean slate, S2 did not request additional details from her
regarding Complainant’s deficiencies. Complainant’s performance did not improve in the
outpatient setting.

Complainant was issued an unsatisfactory proficiency report on September 30, 2014 because he
was unable to meet any of the nine dimensions of his nursing practice to include patient care, ethics
and resource utilization. Complainant was described as showing a lack of attention to detail and as
constantly having excuses for his poor performance. Although S2 spoke with Complainant once
he was detailed to the outpatient clinic, as well as, introducing him to the nurse educator, his
performance did not improve. Complainant stated that he did not have any deficits and that his
skills were up to par.

There were several complaints about Complainant by patients during the time he was in the
outpatient clinic. One complaint involved a patient being transported on a gurney without use of
the side rails. Due to the seriousness of the infraction, an investigative inquiry was conducted.
During the investigation, Complainant was assigned to non-patient care duties. This was a normal
practice during this type of an investigation.

The record reflects that after a series of transfers, employment of other measures to aide
Complainant in improving his performance, Complainant’s performance never improved. A
decision was made to terminate him during his probationary period. The record is void of any
persuasive evidence that discriminatory animus impacted the decision to terminate. Where a
complainant is a probationary employee, we have long held that he or she are subject to retention,
advancement, or termination at the discretion of an agency so long as these decisions are not based
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on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27,
1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. Nothing in the record, or submitted on
appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory
animus. The Commission has long held that an Agency has broad discretion to set policies and
carry out personnel decisions, and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Accordingly, we find there is no persuasive evidence of unlawful motivation in the instant matter.

Denial of Reasonable Accommodation, Claim 1

Under the Commission’s regulations, 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. Reasonable accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability to perform the
essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17,
2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish
disability discrimination, 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.

Complainant was appointed to his position in December 2013. He was given a tentative offer of
employment on August 1, 2013, subject to satisfactory completion of a background investigation
and physical examination. He was initially not cleared for the position because he did not meet the
physical requirements, specifically the visual requirements.

Complainant testified that he suffers from the visual impairment of cornea dystrophy. The reason
he initially failed the physical examination was due to his inability to read small fonts at a distance
of 13-16 inches. He informed the Agency that he was able to read small fonts at close distances
and requested the Agency waive the requirement that he be able to read at a distance. Complainant
stated, “All I have to do is bring it closer to my eyes or step closer to read it. I am also requesting
to be allowed to read small fonts at close distances in the work place.”

Complainant submitted to a second physical examination, at which time the Agency provided him
the use of a handheld magnifier. He was able to read up close and was thereafter offered
employment in the Graduate Nurse Training (GNT) Program/RN Residency program, subject to a
two-year probationary period. The program was a one year training program designed for new
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RN graduates, who have no previous RN experience. Complainant was assigned to work in the
Spinal Cord Injury (SCI) In-patient clinic, where he was the only RN in the Residency program.

B1, the Local Reasonable Accommodation Coordinator, who is a male with a disability, testified
that once Complainant passed the physical, he advised him that if he needed to use a magnifier
once he started his job, they could provide one or could look into some type of magnifying device
that would go over his glasses. He advised Complainant that once he was onsite, he should come
to him and they would look at available accommodations. According to B1, Complainant assured
him that he just needed the device to pass the examination. Complainant never came back to him
once he was hired. B1 stated that he did initiate contact with Complainant on at least two occasions
after he began working and asked him if he needed any type of assistance and Complainant assured
him that he did not need anything at the time. B1 maintained that Complainant never came back
to him to request any further accommodation.

For purposes of analysis only we will assume, without so finding, that Complainant is an individual
with a disability. Complainant, however, has not shown that he could perform the essential
functions of his position as a Registered Nurse with or without an accommodation, i.e., he has not
established that he is a qualified individual with a disability. The record indicates that the Agency
accommodated Complainant during the application phase, and advised him that he could receive
the same accommodation when he came on board, but he was still unable to perform the duties of
his position in a satisfactory manner. There were numerous patient complaints about
Complainant’s performance. Many of them involved matters that posed dangerous situations and
potentially life-threatening consequences for patients that were not related to Complainant’s
disability.

Even if we were to assume that Complainant was a qualified individual with a disability, based on
the record before us, we would not find that he was denied a reasonable accommodation. While
Complainant made no explicit request for an accommodation upon being hired by the Agency, B1
advised Complainant that once he was onsite, he should report to him to explore accommodations.
Complainant never went to speak with B1. Although B1 contacted Complainant to remind him of
their conversation, Complainant never came to request any further accommodation beyond that
which was granted during the application process.

We find that the Agency engaged in a good faith interactive process with Complainant to
accommodate him during the application process for the RN position. The Agency attempted to
maintain an ongoing reasonable accommodation dialogue with Complainant, but Complainant
refused to follow-up. The EEO process for obtaining a reasonable accommodation requires
agencies and employees to engage in an “interactive process” regarding reasonable
accommodations to determine the best options for both the employee and management. Employees
who refuse to cooperate in that process are not entitled to an accommodation. See Carleen L. v.
Dept. of Veterans Affairs, EEOC Appeal No. 0120151465 (May 12, 2017), citing EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on
Reasonable Accommodation); see also Zachary K. v. Dep’t of Veterans Affairs, EEOC Appeal
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No. 0120130795 (Nov. 19, 2015); Liz M. v. U.S. Postal Service, EEOC Appeal No. 0120170672
(Apr. 20, 2018).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency’s FAD properly found that Complainant
failed to demonstrate that he was subjected to discrimination as alleged; the Agency’s final
decision is AFFIRMED.

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.
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 14, 2018
Date