Odilia M.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120172804 (E.E.O.C. Oct. 31, 2018)

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

Odilia M.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172804

Agency No. 200I-0619-2016102797

DECISION

On August 18, 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
July 21, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Medical Technologist at the Agency’s
Health Care System in Montgomery, Alabama.

On March 22, 2016, Complainant initiated contact with an EEO counselor. During the informal
counseling period Complainant raised a claim regarding an assignment. Specifically,
Complainant raised the claim that on February 27, 2016, she received the March 2016 schedule,
which required her to work alone during a shift.

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.

0120172804

2
On June 30, 2016, Complainant filed a formal EEO complaint. Complainant claimed additional
events of discrimination when the Agency subjected her to a hostile work environment and
discriminated against her based on disability when:

1. on February 27, 2016, Complainant was notified that her Supervisor assigned her
duties on March 24, 2016, which violated her light duty restrictions; and,

2. on February 29, 2016, and on April 4, 2016, the Laboratory Manager denied
Complainant’s reasonable accommodation request for a light duty assignment
accommodation, with no response to date.

On August 11, 2016, the Agency issued Complainant a Notice of Partial Acceptance. The
Agency determined that a hostile work environment claim was not raised during counseling, but
that the incidents described an overall harassment claim and were inextricably intertwined with
the events identified in the counseling session. The Agency further determined that
Complainant’s claims were neither severe nor pervasive, and did not merit further processing.
The Agency thereby dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a) (1), for failure
to state a claim. However, the Agency also determined that claims 1 and 2, referenced above,
still timely raised discrete acts that were actionable, and accepted them nonetheless for
investigation.

On January 5, 2017, Complainant amended the formal complaint, which was accepted, to include
the following claim: that Complainant was discriminated against based on disability (physical)
when:

3. on November 29, 2016, the Acting Chief of Human Resources denied her request
for a reasonable accommodation.

After an investigation of claims 1 - 3, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision on July 21, 2017, pursuant to 29 C.F.R. § 1614.110(b).

Regarding the issue of harassment, the Agency handled this matter in a confusing fashion that
merits brief discussion. As noted above, in its August 11, 2016 Notice of Partial Acceptance, it
had dismissed the harassment claim. However, in the instant final decision, the Agency stated in
a footnote that Complainant’s hostile work environment claim was not initially accepted, but that
after “a complete review of the record, we have accepted Complainant’s hostile work
environment claim. The record is sufficient for analysis.”

The instant final decision found no discrimination on all raised matters.

The instant appeal followed. On appeal, Complainant contended that her doctors note only
indicated her job restrictions and limitations in accordance to her on-the-job injuries.
0120172804

3
Complainant noted that the Workman Compensation notes that she provided suggested that she
be provided a desk job. Complainant asserted that she was denied reasonable accommodation
due to her disabilities not being “visible”.

The investigative record reflects the following salient events relating to the subject claim.

Disability

Complainant described her disability as “bone on bone” in her left knee, and bursitis in her left
hip. Her disability restricted her from standing, walking or squatting more than 15 minutes per
hour, or lifting more than 10 pounds. Her condition is permanent.2

Complainant listed her first line supervisor, the Supervisory Medical Technologist (disability:
no) (hereinafter referred to as “S1”), and her second line supervisor the Laboratory Manager
(disability: no) (hereinafter referred to as “S2”) as the responsible management officials.

Claim 1

Complainant stated that she was assigned to work by herself for 30 minutes. Complainant’s
concern was that she might be called to respond to a request for service outside of the laboratory,
which she normally does not do because of her light duty restrictions. She believed she was
discriminated against because of her disability but could not give specific information.

S1 testified that Complainant was not scheduled to work alone for any part of that shift, and that
another scheduled employee could respond to any requests during the 30-minute shift change.
The Agency also noted that Complainant failed to demonstrate how, should it have happened, a
request to respond for service outside of the laboratory would have violated her light duty status
at the time. Complainant countered that the employee S1 referred to was a phlebotomist, whose
duties were different from her.

Claims 2 and 3

On February 29, 2016, Complainant made the request both to S1 and S2, and contacted Local
Reasonable Accommodation Coordinator (“LRAC”) for a reasonable accommodation.
Specifically, Complainant requested a transfer out of the medical laboratory as a reasonable
accommodation. S2 told Complainant that she would try to work with HR to get her transferred
out of the laboratory. Complainant alleged that she requested to be transferred to a desk job so
that she would not have to constantly get up and down. The LRAC confirmed that Complainant
had requested a reasonable accommodation on February 29, 2016. He had requested that
Complainant provide limitations and medical documentation.

2 We presume, for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
0120172804

4
On June 7, 2016, Complainant sent the LRAC an email and requested to be transferred out of the
laboratory as a reasonable accommodation. HLRAC told her to provide supporting medical
documentation for her request. On June 9, 2016, Complainant submitted a Written Confirmation
of Request for Accommodation. The request stated, “To be removed from laboratory service due
to medical disabilities as documented by Women (sic) Compensation provider.”

On June 24, 2016, the LRAC notified Complainant that he needed medical documentation for
her request to be transferred out of the laboratory. Complainant submitted medical
documentation dated June 23, 2016 for her wrist impairment. It stated that she needed "light
duty" until she could return to full duty on July 5, 2016.

On July 8, 2016, the LRAC notified Complainant that the medical documentation dated June 23,
2016, was insufficient because it indicated that she could return to full duty on July 5, 2016,
which already passed. He also notified her that he sent a request for medical information to
Complainant's health provider.

Complainant later submitted a medical opinion, dated July 18, 2016, which indicated that she
needed to be placed in "an environment that will not cause her condition to be aggravated." The
medical opinion also stated that Complainant could not perform her duties because it will place
her in "a predicament that could lead to injury." It did not indicate that she should be transferred
to a desk job. Moreover, the medical opinion did not address why her disability did not allow
her to perform the essential functions of her position.

Based on the medical records that were already submitted, management offered Complainant the
following light duty restrictions: intermittent sitting, standing, bending, and stooping in an eight-
hour shift; no standing, walking, squatting for longer than 15 minutes per hour; and, no lifting of
objects greater than 10 pounds. On August 18, 2016, Complainant accepted the light duty
restrictions.

On November 29, 2016, Complainant met with the Acting HR Chief to discuss her reasonable
accommodation request to have a desk job outside of the laboratory. The Acting HR Chief
requested additional medical documentation clarifying her need to be transferred to a new
position outside of the laboratory at a desk job. The record contained no additional medical
records.

ANALYSIS AND FINDINGS

Reasonable Accommodation

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p).
0120172804

5
To establish that she 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 her with a reasonable accommodation. See 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). An
individual with a disability is “qualified” if he or she satisfies the requisite skill, experience,
education, and other job-related requirements of the employment position that the individual
holds or desires and, with or without reasonable accommodation, can perform the essential
functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental job
duties of the employment position that the individual holds or desires. Id. § 1630.2(n).

A request for a modification or change at work because of a medical condition is a request for
reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question
1. After receiving a request for reasonable accommodation, an agency “must make a reasonable
effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus,
“it may be necessary for the [agency] to initiate an Informal, interactive process with the
individual with a disability . . . [to] identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on
Reasonable Accommodation at Question 5.

In general, reassignment is the reasonable accommodation of last resort and should be considered
only when (1) there are no effective accommodations that would enable an employee to perform
the essential functions of his or her current position or (2) accommodating the employee in the
current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n);
Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should
reassign the employee to a vacant position that is equivalent in terms of pay, status, and other
related factors. If there are no vacant equivalent positions, then the agency should reassign the
employee to a lower-level position that is closest to the current position. Id.

An agency is in the best position to know which jobs are vacant or will become vacant within a
reasonable time and, as part of the interactive process, should ask the employee about his or her
qualifications and interests. Because it possesses the relevant information, an agency is obligated
to inform an employee about vacant positions for which the employee may be eligible as a
reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers
are far better placed than employees to investigate in good faith the availability of vacant
positions); see also Enforcement Guidance on Reasonable Accommodation at Question 28. The
employee should assist the agency in identifying vacancies to the extent that the employee has
information about them. Further, if the agency is unsure whether the employee is qualified for a
particular position, the agency can discuss with the employee his or her qualifications. Mengine
v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible
vacancies, an employee has a duty to identify which one he is capable of performing); see also
Enforcement Guidance on Reasonable Accommodation at Q. 28.
0120172804

6

In this case, it is undisputed that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act. It also is undisputed that Complainant met the requisite skill,
experience, education, and other job-related requirements of her position of record.

Based on the record, it is evident that the Agency engaged with Complainant in the interactive
process (claims 2 and 3). During the interactive process, management attempted to find
Complainant suitable work outside of the laboratory. Complainant alleged that as part of her
reasonable accommodation request, she also requested a desk job only position. However, the
record does not support this contention. For example, in support of her request, Complainant
submitted medical notes titled “Workers’ Compensation Assessment”, Complainant alleged that
these forms suggested and/or stated that she be provided a desk job only position. Upon review,
however, we find that none of those forms indicated, either outright or as a suggestion, indicate
that she should be assigned a desk job only. It is clear from the record that management officials
appropriately engaged with Complainant in the interactive process, and in doing so, updated her
light duty restrictions, which she had accepted.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

0120172804

7
Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here,
Complainant argued that the Agency discriminated against her based on her disability when it
scheduled Complainant to work a 30-minute shift without another medical technologist on hand
(claim 1). However, the Agency noted that Complainant was not alone, and that there was
another scheduled employee who could assist if needed. Moreover, the Agency noted that even if
she was scheduled alone for 30-minutes, she did not explain how responding for service outside
of the lab would have violated her light duty status at the time. Furthermore, the record
demonstrates that the Agency appropriately engaged with Complainant regarding her reasonable
accommodation request. There is no evidence to suggest that the Agency acted with any
discriminatory animus.

Moreover, to the extent that Complainant claims that she was the victim of harassment, we find
that the claims, even if proven to be true and viewed in a light most favorable to complainant,
would not indicate that Complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions
were not of a type reasonably likely to deter Complainant or others from engaging in prior
protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998).

The Agency's final order finding no discrimination 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.
0120172804

8
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.
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.
0120172804

9
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, Director
Office of Federal Operations

October 31, 2018
Date