[Redacted], Floyd L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020003370 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Floyd L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003370 Agency No. 200P-0644-2018105650 DECISION On May 9, 2020, 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 April 10, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a GS-0645- 05 Medical Laboratory Technician position at the Agency’s Veterans Affair’s Medical Center (VAMC) located in Phoenix, Arizona (Phoenix VAMC). On November 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his disability (deaf and impaired speech) when: (1) from July 11, 2018 to July 27, 2018, he was not afforded a reasonable accommodation by the Phoenix VAMC during the tentative job offer period for the position of Medical Laboratory Technician; and (2) on July 27, 2018, the Phoenix VAMC rescinded his tentative job offer for the Medical Laboratory Technician position.2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s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 Agency dismissed one additional claim. Complainant raised no challenges to the Agency's dismissal on appeal; therefore, the Commission will not address this claim in this decision. 2020003370 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. 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. Complainant filed the instant appeal without submitting any arguments or contentions in support. FACTUAL BACKGROUND3 Complainant sought employment with the Phoenix VAMC as a Medical Lab Technician (MLT) in July 2018. On or about July 11, 2018, Complainant was offered a non-competitive tentative job offer under the Schedule A hiring authority for the MLT position. The undisputed record shows that Complainant is deaf and has a significant speech impairment. Complainant’s ability to read lips is also very limited.4 The physical functions of the MLT position included “hearing” (aid permitted) and “verbal communication.” The Chief of Occupational Health and Environmental Medicine (OHEM) Section in Primary Care, at the Phoenix VAMC (CMO) testified that Complainant could not pass these two requirements. CMO stated that Complainant was unable to hear even with an aid, and his “speech was very unclear, garbled” and his form of communication was through writing or an ASL interpreter. CMO also testified that an OHEM Nurse Practitioner (NP), then called the laboratory supervisor (SO) to advise him that Complainant was severely hearing impaired and could not meet the hearing or verbal communication functions. According to CMO, NP also asked the supervisor if Complainant had requested any type of reasonable accommodation and the supervisor planned to check with HR but he did not believe that there was any accommodation that could be provided for Complainant to be able to complete all the job duties required on a daily basis with such a severe impairment. The HR Specialist (HRS) involved in the application and selection process at issue herein testified that the position being offered was for a phlebotomy position (drawing of blood). She further testified that Complainant met the minimum skills and education for the position, but had no specialized experience required for the position, which was not discovered until a later date. 3 The facts set forth below are undisputed unless otherwise stated. In addition, according to the EEO investigator’s notes, Complainant was in communication with the EEO investigator via email throughout the investigation. However, Complainant refused to provide written affidavit responses despite numerous requests because he believed that the questions asked of him in the affidavit did not adequately correlate with his version of the events. 4 To communicate with Complainant during the pre-employment physical examination, Agency officials wrote down questions or directions for Complainant and he wrote responses back since his speech was unclear. Complainant did not otherwise request a reasonable accommodation. 2020003370 3 When HRS asked Complainant for his transcripts for phlebotomy proper, he stated he did not have phlebotomy as part of his education. HRS felt that Complainant did not qualify at the grade level for the vacant phlebotomy position but was qualified for a lower graded MLT position. SO, however, disagreed with HRS’s testimony and stated that Complainant did not meet the education, skills and experience necessary for the position because he had no laboratory experience, although he notes that he had quite a bit of education. While he believed Complainant could be trained over time, he felt that Complainant should never have been offered the job because phlebotomy experience was critical for the higher-level position (which was the only vacant position available). SO also testified: As far as I know, [HRS] mentioned his candidacy, and he met minimum requirements for a GS-0645-5 Medical Technician. She asked if we would like to offer a tentative position here at our lab. I said yes and reviewed his resume. This seemed fine, though no phlebotomy was highlighted. Shortly thereafter, July 21st, [Complainant] emailed me. This was slightly odd, but not uncommon. He mentioned in his email that he is qualified but has no certificate. For advanced lab work, this would be an issue. However, at the phlebotomy level, a certificate is not required. He did state, “I really prefer to do lab work commensurate to my skill set and interests than doing phlebotomy, something that I never had done before. I would love to do the Send-out [Medical Laboratory Technician] job instead of phlebotomy. Would you like to meet with me sometime next week? I would appreciate to meet you and discuss about my interest and strength.” This was concerning to me, because now he not only had no clinical certificates, but also had no phlebotomy training, which was the original intent of the job. According to SO, shortly thereafter, he learned from OHEM the results of Complainant’s pre- employment physical. SO also explained that a miscommunication occurred with CMO. Specifically, SO testified as follows: [CMO] and I were speaking, more importantly in a casual phone call, and she discussed [Complainant], and that he could need an interpreter. I do not recall the exact details of the phone call, only that I stated the fact he has no experience, he would be hired at great expense, meaning the man hours and time to train an individual from scratch. This would include specimen collection, handling, storage, and human venipuncture. That was all I recall stating. This statement would turn into an assumption that I meant that the disability was too expensive itself, which was never intended, nor would I have the ability to determine that at my level; that would be determined by a committee and HR. I was never given an opportunity to meet with him or engage any further, nor was I able to clear up this gross miscommunication. This was further complicated, when this went to [Complainant], and not through HR to discuss. This miscommunication should 2020003370 4 not have occurred and has caused me great distress. This should also have never been discussed to an applicant, and if [a reasonable accommodation] was requested, they should have sent me an official email to determine ability of my department to meet any needs, which I would have gladly done, and have stated I will still do to address any accommodations. On July 27, 2018, Complainant received an email from HRS advising him that the tentative job offer for the Medical Technician (phlebotomy) position had to be rescinded due to his inability to meet the position’s functional requirements of hearing and speaking. Complainant responded to the email and copied SO on his response. In that response, Complainant claimed that CMO advised him that based on her conversation with SO, accommodating his disability would be too expensive and the offer had to be withdrawn on that basis. Complainant also stated that CMO added that SO stated that “hiring ASL interpreter daily is too expensive.” Complainant’s response also complained that the Agency failed to engage in the interactive process to consider an effective reasonable accommodation, noting that he was never provided a reasonable accommodation request form to determine whether a reasonable accommodation was available or not. Complainant noted that he believed the Agency’s conduct was illegal and asked for the EEO specialist’s contact information. Following Complainant’s response to the withdrawn job offer, SO directed the various relevant offices to work together to see if a solution could be reached. Shortly thereafter, SO offered Complainant the same position number and grade, GS-0645-05, to assist in the Microbiology/Molecular area of the lab. This was offered to allow Complainant the opportunity to work in a laboratory at the Phoenix VA, while removing the phlebotomy duties and patient interaction. Complainant initially accepted the job offer, but later contacted SO to request another position instead. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (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”). Denial of Reasonable Accommodation 2020003370 5 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 accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that the accommodation would cause an undue hardship. 29 C.F.R. § 1630.2(o) and (p). When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 1 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). Instead, the employee or the employee's representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006), req. for recon den'd, EEOC Request No. 05A60859 (Sep. 19, 2006); see also Geraldine B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct. 13, 2015). To establish that Complainant was denied a reasonable accommodation he must show that: (1) he meets the regulatory definition of a person with a disability pursuant to 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual person with a disability” as defined by 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. It is undisputed that Complainant is an individual with a disability. 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). Here, the record shows that Complainant was not qualified for the MLT position because he lacked the required phlebotomy experience for the position, despite the Agency’s erroneous tentative offer of the position to him. Accordingly, the Agency had no responsibility to engage in the interactive process as Complainant “did not possess the requisite skill to perform phlebotomy,” an essential function of the position. Complainant acknowledged on numerous occasions his lack of phlebotomy experience. However, even if we assume Complainant was minimally qualified to perform the duties of the MLT position, despite his lack of phlebotomy experience or training, we note, that the record is devoid of evidence to support a finding that Complainant ever requested or identified an accommodation prior to the Agency’s decision to rescind the employment offer. 2020003370 6 The record reveals that Agency officials determined that Complainant was also unable to meet the physical functions of the position, including the verbal communication requirements, which was an essential function of the position.5 SO made clear that he was not aware of any request for an accommodation prior to the decision to rescind the offer and he was in no position to evaluate whether or not an accommodation existed that would allow Complainant to perform the essential functions of the position without creating an undue hardship on the Agency. In addition, the record shows that once the question of an accommodation was raised by Complainant, SO made sure the interactive process commenced and worked to quickly find a position that Complainant was qualified to perform. Furthermore, the record reveals that Complainant was offered another position at the same grade level in the Microbiology/Molecular area, but he ultimately did not accept that offer. Complainant has presented no evidence that the offered position would not have been a suitable alternative accommodation. Accordingly, we find that Complainant failed to present sufficient evidence that he was denied a reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies, as it does here, its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, Complainant must demonstrate that: (1) he is an “individual with a disability;” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Assuming, arguendo, Complainant established that Complainant established a prima facie case of discrimination, the Agency provided legitimate, nondiscriminatory reasons for its actions as was set forth above. We find that the preponderance of the evidence demonstrates that phlebotomy was an essential function of the position for which Complainant had no experience. The undisputed record indicates that Complainant was not qualified for the higher-graded MLT position that was vacant and that was conditionally offered to him. The preponderance of the record further shows that there were several instances of miscommunication and errors, but that SO intended for the offer for the position to be rescinded because of Complainant’s lack of phlebotomy experience and nothing more.6 5 The record is devoid of evidence to support Complainant’s contention that the ability to hear and speak with patients are not essential functions of the position. 6 We find that SO credibly explained that the conversation he had with CMO was misconstrued and that his hesitancy to hire Complainant stemmed from his lack of phlebotomy experience, not his physical impairments. 2020003370 7 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. We find the record devoid of evidence to support the assertion that any responsible management official held animus toward Complainant based on his protected classes. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION Accordingly, based on a thorough review of the record, as stated herein, we AFFIRM the Agency’s final decision. 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). 2020003370 8 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). 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 23, 2021 Date