Merrill O.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 17, 2016

0120142823 (E.E.O.C. Feb. 17, 2016)

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

Merrill O.,1
Complainant,

v.

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

Appeal No. 0120142823

Hearing No. 510-2014-00003X

Agency No. 200I-0516-2013100316

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 22, 2014 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant at the Agency’s Naples Community-Based Outpatient Clinic in Naples, Florida.
Complainant has been diagnosed as a brittle diabetic. Complainant takes medication, uses an
insulin pump, and sees a medical provider every three months. Complainant has experienced
blackouts, but he is able to perform his duties as long as his blood glucose levels do not fall
below 70.

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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On March 1, 2011, a team lead filed a Report of Contact (ROC) reporting that she witnessed
Complainant speaking incoherently with a patient. The team lead stated that she told
Complainant to go to the lounge to check his blood sugar levels. Complainant initially
resisted, but followed her to the lounge to check his levels.

On November 15, 2011, Complainant slapped a co-worker (CW1) on the back of his head.
Agency management investigated the incident. During the investigation, Complainant stated
that he used the back of his hand to “tap” CW1 on the back of his head. Additionally,
management investigated several other incidents of reported disruptive behavior by
Complainant. On January 11, 2012, management issued Complainant a proposed reprimand
for striking CW1 and for four additional instances of disruptive behavior involving co-workers
and patients from October and November 2011. On February 10, 2012, management
determined that the charges were sustained and issued Complainant a formal reprimand. On
September 4, 2012, Complainant requested that the February 2012 reprimand be removed from
his official personnel folder (OPF). On September 6, 2012, Complainant’s second-level
supervisor (S2) denied the request.

On December 6, 2012, Complainant was instructed to report for a Fitness for Duty
Examination (FFDE). Complainant reported for the exam on December 13, 2012. Prior to
management receiving the results of the exam, Complainant was involved in another disruptive
incident. Complainant entered a classroom where a medical professional was teaching a
diabetic class and told the class that the instructor used to weigh as much as a truck.
Complainant was asked to leave, but continued to harass the instructor. The instructor
reported the incident to the Office of Human Resources. After this incident, management
decided that Complainant needed to be separated from personal interactions with clients and
allowed him to only work with them over the phone. On March 7, 2013, Complainant was
temporarily transferred to the Cape Coral facility pending the results of the FFDE.

Complainant’s FFDE results were returned to the Office of Human Resources in December
2012; however, management officials were not aware. The exam concluded that Complainant
was not fit for duty. After learning that the Office of Human Resources had the FFDE,
management determined that they needed a more recent exam on file. As a result, on March
28, 2013, management issued an addendum to the FFDE stating that Complainant could either
undergo another examination by a facility physician or one of his own choosing, or proceed
with the findings of the December 2012 examination. Complainant elected to undergo a
second examination by his own doctor. On April 5, 2013, Complainant submitted
documentation from his doctor showing that he was fit for duty. Complainant returned to the
Naples clinic on May 28, 2013.

On December 13, 2012 (and amended on April 12, 2013), Complainant filed a formal
complaint alleging that the Agency discriminated against him and subjected him to a hostile
work environment on the bases of national origin (Hispanic) and disability when:

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1. Since 2007 and as of December 13, 2012, several verbal and written requests for a
reasonable accommodation were ignored;

2. On January 11, 2012, Complainant was issued a proposed reprimand that was
sustained on February 10, 2012;

3. On September 6, 2012, the Health Administration Services Manager (M1) informed
Complainant in an email that his request to have the reprimand removed from his
Official Personnel Folder was denied;

4. On October 16, 2012, during a fact-finding interview, Complainant became aware
that M1 was using his medical disability in an attempt to have him terminated;

5. On December 6, 2012, Complainant was instructed to report for a Fitness for Duty
Exam (FFDE) that occurred on December 13, 2012;

6. On March 7, 2013, Complainant was reassigned; and

7. On March 28, 2013, Complainant was issued a Fitness for Duty addendum.2

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of his right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that Complainant’s hostile work environment
claim consisted solely of his dissatisfaction with management’s job-related decisions or
common workplace interactions. Moreover, the Agency found that Complainant failed to
show that the alleged incidents were based on discriminatory animus. As a result, the Agency
found that Complainant had not been subjected to a hostile work environment as alleged.

Next, with regard to Complainant’s reasonable accommodation claim, the Agency determined
that Complainant alleged that he requested to be able to check his blood sugar levels every two
hours as a reasonable accommodation in February 2007. Complainant stated that he submitted
a written request for the accommodation to his first-level supervisor (S1) in 2007; however, the

2 The Agency dismissed one claim in which Complainant alleged a violation of the Privacy Act
for failure to state a claim. Complainant raised no challenges to the Agency’s dismissal before
the AJ or on appeal; therefore, the Commission will not address the claim in this decision. In
addition, the Agency determined that claim (2) was untimely raised with an EEO counselor as
a discrete act. The Commission finds, however, that the Agency properly considered this
claim as background evidence in support of Complainant’s overall hostile work environment
claim.
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record showed that S1 did not start working at the Agency until 2010, and Complainant
provided no evidence that he submitted a written request for an accommodation in 2007, as he
claimed.

The Agency concluded that the record contained only one reasonable accommodation request,
dated February 16, 2011. Record evidence shows that the request was formally approved on
April 22, 2011, by S1. Nonetheless, M1 affirmed that she met with Complainant on February
17, 2011, and informed him that he could check his glucose every two hours. Complainant
alleged that he was denied the opportunity to check his glucose every two hours by two team
leads, but did not offer any evidence of those denials. On the contrary, the record revealed
that both team leads were aware of his condition and submitted ROCs regarding his episodes
with low glucose. In fact, one of the team leads insisted that Complainant check his glucose
levels during an episode, but he refused. Furthermore, M1 affirmed that she assured
Complainant through multiple conversations that he could take breaks whenever he needed
without supervisor approval. M1 added that management never discouraged breaks for any
staff, and that some of Complainant’s co-workers would encourage him to take breaks when it
appeared that his glucose levels might be low.

The Agency noted that Complainant’s issue with his accommodation request is that he did not
have a formal written accommodation. Although a final concurrence by the section chief did
not occur until March 2013, the record shows that shortly after his request, he was allowed to
check his glucose levels as an accommodation and that the accommodation was communicated
to him by M1. Accordingly, the Agency found that management met its obligations under the
Rehabilitation Act.

Next, the Agency found that management had articulated legitimate, nondiscriminatory reasons
for sending Complainant for a FFDE. Specifically, Complainant’s second-level supervisor
(S2) explained that she had received ROCs from medical professionals at the clinic reporting
that Complainant had outbursts that disrupted the facility that occurred when his blood sugar
became low. S2 inquired with Human Resources because she did not believe that his outbursts
were his fault due to the amount of episodes he was having. Human Resources agreed and
prepared the paperwork. M1 concurred with S2 stating that the exam was in response to an
increase in episodes that Complainant had, which affected his ability to handle the functions of
his job.

Regarding Complainant’s temporary reassignment to the Cape Coral clinic, S2 asserted that
while management was awaiting the results of Complainant’s FFDE, he was involved in
another disruptive incident at the clinic. Management decided to transfer him to the Cape
Coral facility to remove him from in-person patient services. Management felt it was no
longer a good situation for Complainant to remain at the Naples facility because of concerns of
patient and staff safety. Management had received reports of him disobeying direct orders and
disrupting patients and doctors and nursing staff stated that they could no longer tolerate the
situation with him. After consulting with HR regarding the matter, management was advised
to temporarily assign Complainant to the Cape Coral clinic. S2 added that Complainant was
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placed in an office across from her office where he did his work behind the scenes and dealt
with patients only by phone. There, Complainant was able to eat and check his blood sugar
whenever he needed. Complainant was returned to the Naples clinic after he provided
documentation from his doctor stating that he was fit for duty.

Finally, regarding the addendum, S2 stated that management officials were not informed that
Complainant’s FFDE results had been received and were in the Human Resources office. Due
to this oversight, the time to process his initial FFDE results had expired. Complainant was
then issued an addendum to the initial exam to address this oversight, which allowed him to
have another FFDE with a facility occupational therapist or with a medical provider of his
choice, or proceed with the initial finding. Complainant chose to have his doctor provide
another opinion, which concluded that he was fit for duty.

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

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency failed to timely issue the FAD pursuant to the
AJ’s dismissal order. Complainant contends that it would be in the best interest of the
Commission to find in his favor to demonstrate that Agency attorneys are not above AJ’s
orders. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant’s appellate arguments related
to the Agency’s untimely issuance of the FAD. EEOC Regulation 29 C.F.R. § 1614.110(b),
states that when the agency receives a request for an immediate FAD or decides to issue a
FAD due to complainant's failure to request a hearing, it must issue the FAD within 60 days.
In this case, after Complainant withdrew his request for a hearing and the AJ instructed the
Agency to issue its final decision within 60 days, the Agency did not issue its FAD for
approximately four months. The Agency noted that its delay in issuing the FAD was based on
its limited staffing and resources, and not misconduct or bad faith. Thus, the Commission
declines to sanction the Agency under the circumstances present. The Commission takes this
opportunity to remind the Agency of its obligations under the Commission’s regulations.

Hostile Work Environment

Turning to the merits of the instant complaint, the Commission notes that 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
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classes; (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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant alleged that based on his protected classes, management continuously
subjected him to a hostile work environment as evidenced by multiple incidents. The
Commission finds that the record does not show that the Agency subjected Complainant to a
discriminatory hostile work environment. Moreover, even assuming that the alleged conduct
was sufficiently severe or pervasive to create a hostile work environment, Complainant failed
to show that the Agency's actions were based on discriminatory animus. The record reflects
that the alleged incidents were more likely the result of routine supervision, managerial
discipline, personality conflicts, and general workplace disputes and tribulations. In addition,
to the extent that Complainant is alleging disparate treatment with respect to his claims, the
Commission finds that he has not shown that the Agency's reasons for its actions were a
pretext for unlawful discrimination. As a result, the Commission finds that Complainant was
not subjected to discrimination or a hostile work environment as alleged.

Fitness For Duty Examinations

The Commission notes that the Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical examinations of employees. The
inquiry may be made or the examination ordered only if it is job-related and consistent with
business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer
must have a reasonable belief based on objective evidence that an employee will be unable to
perform the essential functions of her job or pose a direct threat because of a medical
condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002
(July 27, 2000), at Q.5. Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a medical condition that
will interfere with her ability to perform essential job functions or will result in direct threat.
Id. It is the burden of the employer to show that its disability-related inquiries and requests for
medical examination are job-related and consistent with business necessity. See Cerge v. U.S.
Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).

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The Commission finds that Agency management had a reasonable belief that Complainant
could not perform the essential functions of his position safely because of a medical condition.
Specifically, S2 affirmed that she had received numerous ROCs from medical professionals at
the clinic stating that Complainant had many outbursts when his blood sugar lowered. ROI,
Ex. B-2, at 43. S2 consulted with HR because she did not believe that Complainant’s outbursts
were his fault because of all the episodes he was having. Id. at 43-44. M1 confirmed that
management requested that Complainant submit to a FFDE based on numerous disruptive
outbursts related to his condition, which were affecting his ability to perform the functions of
his job. ROI, Ex. B-3, at 49-51. Complainant attended the exam on December 12, 2013, but
management did not learn of the results finding him unfit for duty until March 2013. ROI, Ex.
C7. As a result of the delay in receiving the results, management issued an addendum giving
Complainant the option to complete a new exam with an Agency doctor or his own doctor, or
to proceed with the findings of the December 2012 exam which found him unfit to perform his
duties. Id. Complainant elected to undergo a second exam by his own doctor who
subsequently found him fit for duty. Id.

Based on the record evidence, the Commission concludes that the Agency ordered Complainant
to undergo the FFDEs on the basis of objective evidence, that is, his observed disruptive
outbursts related to his condition. Thus, the Commission finds that the Agency’s request for
the FFDEs was job-related and consistent with business necessity and did not violate the
Rehabilitation Act.

Denial of Reasonable Accommodation

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(o) and (p). The Commission will assume without deciding that
Complainant is an individual with a disability.

Complainant failed to provide any evidence that he submitted a request for reasonable
accommodation prior to his February 2011 written request. In that request, Complainant
requested to be able to test his blood glucose every two hours and to treat his blood glucose
reactions by eating sweets. ROI, Ex. C-3. The record shows that S1 signed the request stating
that the accommodation requested was approved. Id. The document, however, was not signed
by the Service Chief for concurrence until May 2013. Nonetheless, M1 affirmed that she met
with Complainant on February 17, 2011, and verbally approved his request to take breaks to
check his blood glucose levels as needed and to treat his reactions by having sweets or fruit
drinks. ROI, Ex. B-3, at 21-23. Complainant has not offered any evidence that the
accommodations granted in February 2011, and subsequently formalized in May 2013, were
ineffective. Therefore, the Commission finds that Complainant failed to prove that the Agency
denied him reasonable accommodation in violation of the Rehabilitation Act.
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CONCLUSION

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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”
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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

February 17, 2016
Date