[Redacted], Erich B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2019004664 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004664 Hearing Nos. 443-2019-00072X and 443-2019-00080X Agency Nos. 200J-0005-2018102779 and 200J-0005-2018105890 DECISION 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 June 6, 2019, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Information Technology (IT) Specialist, 2210, GS 12 at the Agency’s VA Medical Center (VAMC), Office of Information Technology, Field Operations in Austin, Texas.2 On June 18, 2018 and September 11, 2018, Complainant filed two formal an EEO complaints. Complainant’s formal complaints consisted of the following matters: 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. 2 The record indicates that Complainant was a full-time telework employee and worked remotely in Wisconsin. 2019004664 2 Complaint 1 (Agency No. 200J-0005-2018102779): Whether Complainant was subjected to a hostile work environment based on disability (total blindness) as evidenced by, but not limited to, the following events: 1. on November 13, 2017, the Local Reasonable Accommodation Coordinator (LRAC) asked Complainant to submit medical documentation as part of his reasonable accommodation request; 2. on January 22, 2018, the Director of the Franchise Budget Office (Director) said Complainant’s disability did not rate high enough for him to receive the benefits specified by law and federal travel regulation; and 3. on March 5, 2018, Complainant was denied reasonable accommodation when his wife was not compensated for travel costs in a timely manner. Complaint 2 (Agency No. 200J-0005-2018105890): Whether Complainant was subjected to discrimination based on disability (total blindness) and in reprisal for prior protected EEO activity when:3 4. since April or May 2018 and continuing, Complainant is required to use the ePerformance System, which does not comply with Section 508 of the Rehabilitation Act; 5. on June 10, 2018 and continuing, Complainant has been required to use the Infrastructure Operations Overtime Compensatory Time system, which does not comply with Section 508; 6. since August 2018 and continuing, Complainant is required to use the Training Management System 2.0, which does not comply with Section 508; and 7. on an ongoing basis, Complainant’s computer system does not comply with Section 508. After its investigation into the accepted complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant request a hearing for both complaints which the AJ consolidated. However, Complainant withdrew his hearing request and the AJ remanded the complaints to the Agency for a final decision. 3 The record indicates that Complainant’s formal complaint included additional claims which the Agency dismissed on procedural grounds. Complainant does not dispute the dismissal of these claims. Therefore, we need not address these claims in our decision below. 2019004664 3 On June 6, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation - (Claim 3) 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. 29 C.F.R. §§ 1630.2(o) and (p). To establish that he was denied a reasonable accommodation, 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 him with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. Here, the record supports a finding that Complainant is a qualified individual with a disability. Complainant testified that he has been totally blind since childhood when both of his eyes were removed. Consequently, Complainant indicated that he cannot drive, he requires a sight guide, and he has difficulty carrying items because he also uses a cane. Complainant noted that the Agency was aware of his disability when he applied for the position in 2012 as a schedule A appointee. Regarding his work responsibilities, Complainant stated that he uses screen reader software which translates and reads aloud what is typed on his screen so long as the software the Agency uses is Section 508 compliant. Complainant explained that when he was hired, the Agency approved him for full-time telework to work from Wisconsin even though the physical office location was located in Texas. Consequently, Complainant did not commute to the office, because he could complete all of his assignments at home. However, Complainant explained that in in March 2017, the Agency shipped him two replacement computers (one laptop and one desktop) from the Milwaukee VAMC, the closest VAMC near Complainant. By September 2017, Complainant explained that the Milwaukee VAMC needed the extra workstation and wanted him to return it. Complainant noted that the Milwaukee VAMC was a six-hour drive from his home. On October 3, 2017, Complainant stated that he requested a reasonable accommodation to compensate his driver, in this case his wife, to take him to the Milwaukee VAMC because she was providing him personal assistant services. 2019004664 4 The record indicates that Complainant’s wife drove him to the Milwaukee VAMC on October 12, 2017, but Complainant indicated that the Agency was hesitant to pay his wife as his driver because Agency officials had informed Complainant in January 2018 that the VA did not pay for the caregivers of veterans to travel. Therefore, Agency officials were not going to cover the cost of such services for an employee. Thereafter, however, Complainant explained that, on November 13, 2017, he was asked to provide additional information to prove that he was blind and required a driver. By March 5, 2018, Complainant asserted that his wife had still not been compensated for the services she provided him in October 2017. However, the record indicates that the Agency, on April 17, 2018, ultimately approved to compensate Complainant’s wife for the services she provided in October 2017 as well as anticipated driving services Complainant needed in April 2018 and August 2018.4 Complainant has alleged that the Agency failed to timely respond to his October 2017 reasonable accommodation request when it waited approximately six months to approve his request in April 2018. Consequently, our analysis below will focus on whether the Agency responded to Complainant’s accommodation request in a reasonable manner. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. The record reflects that the Agency did not unreasonably delay processing Complainant’s October 2017 reasonable accommodation request. As explained in greater detail below, we note that the circumstances of this case involve compensation for personal assistant services Complainant received in 2017, and because Complainant received these services, the essential functions of his position did not suffer an adverse impact during the six-month period the Agency used to process his compensation request. 4 Complainant explained that he needed to return to a VAMC to get his fingerprints taken to complete his security clearance investigation in April 2018. Complainant further explained that he also had to return to a VAMC in August 2018 to get a new PIV card as his current PIV card would expire. Consequently, Complainant submitted another reasonable accommodation request in March/April 2018 for a driver (his wife) to take him to the nearest VAMC that conducted fingerprinting, which Complainant determined was located in Minneapolis, Minnesota - a three- and-one-half-hour drive away. 2019004664 5 The record indicates that at the time Complainant submitted his reasonable accommodation request on October 11, 2017, Complainant requested compensation for his wife to drive him to the Milwaukee VAMC on October 12, 2017 to return his desktop and have his laptop fixed. The request also noted that Complainant required additional driving services to another VAMC before August 6, 2018 to have his PIV card renewed, and Complainant requested that his wife also receive compensation for these driving services. However, both the Lead Reasonable Accommodation Coordinator (LRAC) and the Director of Franchise Budget Office (Director) testified that at the time of Complainant’s request, the Agency had not implemented any procedures for providing compensation to spouses or individuals providing assistant services to employees with disabilities, as the new regulations regarding this issue were not effective until January 2018. Consequently, the Agency did not have any standard operations procedures (SOPs) in place to compensate Complainant’s wife for driving services which were scheduled the day after Complainant had submitted his request. Nevertheless, the Agency did not deny Complainant’s request, and Complainant’s wife provided the driving services. Email correspondence, dated October 12, 2017, indicates that the LRAC began processing Complainant’s request by contacting the Office of General Counsel attorney (OGC attorney) who informed her that regulations regarding personal assistance services would need to be drafted. The OGC attorney also recommended that contractors should be used for driving services. Additionally, email correspondence, dated October 18, 2018 from the OGC reflects that the Agency had the authority to appoint personal assistants for individuals with disabilities pursuant to 5 C.F.R. § 213.3102(ll) and the VA Financial Policy, volume XIV, chapter 5, paragraph 050203 provided a list of covered services, including “[t]ransportation and per diem for an attendant accompanying the traveler.” The email further noted that “written justification of the medical necessity for the attendant is required from the employee’s physician.” (emphasis in original). On November 13, 2017, OGC emailed the LRAC that Human Resources (HR) could appointment Complainant’s wife, compensate her for her services, and pay her a per diem allowance, under the applicable regulation if Complainant submitted medical justification from his physician regarding his medical necessity for these services. On the same day, the LRAC emailed Complainant an update on the status of his request, requested the medical documentation, and informed him that she would need to contact the Program Officers for travel policy and staffing for the next steps. During the approximate six-month period pending the Agency’s April 17, 2018 approval of Complainant’s reasonable accommodation request, the LRAC acknowledged that Complainant needed to complete fingerprinting and the renewal of his PIV card. However, the LRAC testified that she had found interim accommodations for Complainant. Specifically, the LRAC stated that she contacted the management official in charge of Complainant’s background investigation who provided Complainant an extension to complete the fingerprinting requirement. The LRAC also stated that she found a nearby jail, located a short distance from Complainant’s residence, for Complainant to use to complete his fingerprinting instead of his commuting to the Milwaukee VAMC. 2019004664 6 However, the LRAC explained that Complainant was not interested because he wanted to ensure that his wife would be compensated for this shorter drive. Even without accepting the interim accommodation, the LRAC clarified that Complainant was not prevented from completing the essential functions of his position. Complainant was a full-time telework employee; Complainant’s wife provided the necessary assistive services in October 2017; Complainant’s pending trips had not occurred before the Agency approved Complainant’s request; and there is no indication that Complainant’s medical condition worsened as result of the Agency’s delay. Finally, Complainant reported no further problems once the Agency completed its process for establishing SOPs regarding compensation for assistant services.5 Given these circumstances, the record supports that the Agency acted in good faith with the processing of Complainant’s request. Therefore, we find that the Agency did not violate the Rehabilitation Act when it reasonably delayed processing Complainant’s reasonable accommodation request. Because we find that the Agency did not violate the Rehabilitation Act, Complainant’s additional claim of discriminatory harassment as evidenced by the event in claim 3 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Discriminatory Harassment - (Claims 1 and 2) To establish a claim of discriminatory environment harassment, 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 her statutorily protected class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that she 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 - in this case, his disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. 5 Although the SOPs at issue were developed in 2018, they were retroactively applied and covered the services Complainant’s wife provide in October 2017. 2019004664 7 Medical Documentation Request (Claim 1) The LRAC testified that she became aware of Complainant’s disability because he had a “target disability,” which was a disability that was “obvious” and “visible” to anyone looking at him. Consequently, the LRAC stated that she did not ask Complainant for any medical documentation when he requested computer software as a reasonable accommodation in May 2017. The LRAC stated that she “took [Complainant’s] word for it” and provided him the software. However, the LRAC explained that she was advised by the OGC attorney to request medical documentation when Complainant requested compensation for his wife providing him assistance services in October 2017. The LRAC noted that at the time of the request, there was no documentation of Complainant’s disability on file and the Agency did not, at the time, have procedures in place to provide compensation for assistant services. Nevertheless, Complainant provided the required documentation from his physician indicating that he was blind and required a driver. January 22, 2018 Statement (Claim 2) The Director acknowledged that he had informed Complainant that he was not familiar with an Agency policy that allowed payment to spouses or other individuals who supported disabled employees when they travel. The Director explained that his response was based on his prior experience as a travel manager for veterans traveling to attend VA medical appointments. The Director noted that he had not previously authorized compensation for people assisting veterans, and consequently, he did not think his current Agency provided this service for Agency employees. However, once Complainant provided legal authority indicating that the Agency was able to provide these services, the Director indicated that he began the process of establishing SOPs as the Agency had not implemented any procedure to address compensation for assistant services. Considering these claims, even if true, Complainant has not shown evidence that considerations of his disability motivated management’s actions toward Complainant. The record indicates that the LRAC requested Complainant’s medical documentation to further process his reasonable accommodation request and the documentation was needed because the Agency had not established procedures addressing Complainant’s request for compensation for the assistant services his wife provided. Additionally, the Director acknowledged that he did not believe the Agency would provide compensation for assistant services based on his prior experience working as a travel manager. Nevertheless, the Director indicated that he began the process of developing the SOPs regarding this issue once Complainant provided documentation indicating that the Agency had the authority to provide the compensation Complainant requested. Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s disability. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2019004664 8 Disparate Treatment (Claims 4-7) 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, she must first establish a prima facie 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). As previously discussed, Complainant is a qualified individual with a disability. Our review of the record indicates that the Agency articulated legitimate, non-discriminatory reasons for its actions. Section 508 of the Rehabilitation Act requires that federal agencies make all electronic information and technology assessible to individuals with disabilities. Generally, this section of the Rehabilitation Act is not enforced by the Commission and is instead regulated by the U.S. Access Board. However, in cases where a complainant alleges that Section 508 noncompliance prevented him from completing the essential functions of his position, a complainant could seek a reasonable accommodation or interim accommodation, and the agency’s failure to respond and/or provide an accommodation, or alternative means of access could present an actionable claim within the Commission’s jurisdiction. Here, Complainant asserts that the ePerformance system, Operations Overtime Compensatory system, Training Management System, and his computer, specifically the Skype software, were not 508 compliant. The Section 508 Section Chief verified that the Agency conducted 508 compliance audits on these systems which revealed that they were not completely compliant. 2019004664 9 However, the responsible officials forwarded the audit results to the appropriate project managers for resolution. Nevertheless, the record fails to reflect that Complainant was prevented from performing the essential functions of his position due to Section 508 noncompliance. Complainant testified that he never used the Infrastructure Operations Overtime Compensatory system, and therefore, this software did not affect Complainant’s everyday duties. In contrast, Complainant was required to use the two other remaining systems. The ePerformance system was used to store and process annual performance evaluations. Consequently, Complainant would need access to this program, but use of this program was not directly related to the essential functions of Complainant’s position. While Complainant testified that he was not provided any alternative means to access this program, Complainant acknowledged that his supervisor offered him assistance. Documentation in the record supports that this program was scheduled to be Section 508 compliant by March 2019. We note that the Training Management System was one system that Complainant was required to use in order to register for mandatory courses and Complainant asserted that he could not do so without assistance because the system was not Section 508 compliant. However, Complainant testified that he did not request a reasonable accommodation from the Agency to provide him full access to the system because Complainant argued that his issue was a Section 508 matter, and not one of reasonable accommodation. Complainant further indicated that he sought sight assistance from his wife and daughter when accessing this program. Moreover, we note that the Section 508 Chief denied having any knowledge of Complainant’s prior protected EEO activity. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability and reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2019004664 10 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019004664 11 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 June 8, 2021 Date