[Redacted], Ivan V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 11, 2022Appeal No. 2021003666 (E.E.O.C. Oct. 11, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003666 Agency No. 200P-0648-2021101956 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 May 17, 2022 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Diagnostic Radiologic Technician, GS-9, at the Agency’s VA Portland Health Care System in Portland, Oregon. On April 13, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (autism spectrum disorder), age (YOB: 1959), and in reprisal for prior protected EEO activity2 when: 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 Complainant alleged that was retaliated against and removed from employment with the Agency following a congressional inquiry, initiated by his wife, regarding his son’s care as a VA 2021003666 2 1. on January 16, 2021, the Agency did not engage in the reasonable accommodation process; and 2. on January 20, 2021, Complainant was removed from employment.3 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On May 17, 2022, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - Termination (Claim 2) 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. patient at the Portland VA Healthcare System. However, we note that such allegations of fraud, waste, abuse, and whistleblower retaliation are beyond the scope of the Commission’s jurisdiction and should be addressed with the Agency’s Inspector General or the Office of Special Counsel, not EEOC. 3 The record indicates that Complainant’s formal complaint included additional claims which the Agency dismissed on procedural grounds. Complainant does not appear to dispute the dismissal of these claims on appeal. Therefore, we need not address this dismissal in our decision below. 2021003666 3 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. The Agency articulated legitimate, non-discriminatory reasons for terminating Complainant’s employment. The Medical Center Director (MC Director) testified that he was Complainant’s supervisor and was responsible for terminating Complainant’s employment. The MC Director explained that on or about October 12, 2020, Complainant did not complete the required two step identifier process on patients in Radiology, which resulted in incorrect images being taken on three patients. This resulted in subjecting two patients to unnecessary radiologic examination. The MC Director indicated that Complainant did not refute the charges against him, Rather, Complainant indicated that he had some personal challenges and wished to remain at the Agency until he retired in May 2021. The MC Director further explained that Complainant had previously received a reprimand and suspension for similar offenses, and consequently, the MD Director had no confidence in Complainant’s ability to meet the expectations of his position. The MD Director noted that Complainant had not taken ownership or accountability for his mistakes and there was little potential for rehabilitation. A copy of the January 5, 2021 proposed removal notice indicates that Complainant was charged with careless performance of duties regarding the October 12, 2020 incident. The notice further charged Complainant with inappropriate conduct when on October 12, 2020, Complainant made an annotation in a patient’s records attributing a one-hour and twenty-two minute delayed patient scan to a machine glitch even though there was no evidence of any problems with the ingenuity scanner to have caused such a delay. A copy of the January 20, 2021 final removal decision states that Complainant’s employment as terminated because of careless performance of duties and inappropriate conduct. 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 age, disability, or prior protected EEO activity. 2021003666 4 Denial of Reasonable Accommodation - Claim 1 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. The evidence shows that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Complainant identified his disability as autism spectrum disorder, and medical documentation reflects that Complainant had Asperger’s disease. Complainant testified that he requested a reasonable accommodation on January 11, 2021, after he had received the notice of proposed termination on January 5, 2021. Complainant explained that he requested a reasonable accommodation to work at the CT front desk rather than conducting imaging examinations until his expected retirement in May 2021. However, Complainant stated that management terminated his employment before the reasonable accommodation process was completed. The record reflects that management began the necessary steps to process Complainant’s reasonable accommodation request. The Radiologist Services Chief (RS Chief) testified that Complainant’s reasonable accommodation request was immediately forwarded to Employee Relations and was subsequently forwarded to the Reasonable Accommodation Coordinator. Additionally, the record reflects that the Agency granted Complainant an interim accommodation of performing CT desk duties such as scheduling, even though Complainant had not submitted the necessary medical documentation to substantiate his accommodation request. Moreover, the record shows that Complainant did not submit the necessary medical documentation prior to his termination for unsatisfactory work performance on January 20, 2021. Consequently, due to the lack of medical support for his accommodation request, the Agency’s obligations under the Rehabilitation Act terminated once Complainant was removed from the Agency. Therefore, our review of the record reflects that the Agency did not violate the Rehabilitation Act when the accommodation process ended following Complainant’s removal from the Agency. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 2021003666 5 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). 2021003666 6 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 October 11, 2022 Date Copy with citationCopy as parenthetical citation