[Redacted], Jermaine I., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2019003859 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine I.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003859 Hearing No. 443-2018-00124X Agency No. 200J-0676-2017103493 DECISION On June 7, 2019, 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 13, 2019, final decision 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 accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND During the relevant time, Complainant worked as one of three Clinical Pharmacy Specialists (Pharmacist) in the Anticoagulation Clinic at the Tomah VA Medical Center located in Tomah, Wisconsin. Believing that he was subjected to discrimination, Complainant contacted an EEO Counselor on June 1, 2017. Informal efforts to resolve Complainant’s concerns were unsuccessful. On September 11, 2017, Complainant filed a formal complaint alleging discrimination based on 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. 2019003859 2 disability (allergic rhinitis, migraines, gastric ulcer, irritable bowel syndrome, athlete’s foot), national origin (Vietnamese) and/or sex (male). The Agency framed the claims as follows: 1. On May 1, 2017, Complainant reasonable accommodation request for a tour change was denied; 2. On June 9, 2017, Complainant’s reasonable accommodation request to not perform face-to-face telehealth meetings was denied; 3. On June 7, 2017, Complainant received a written counseling; and, 4. Complainant was subjected to harassment.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation 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, on May 13, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency reiterated its earlier dismissal of the following claim: On March 7, 2017, Complainant’s reasonable accommodation request to telework was provided after an unreasonable delay. The Agency reasoned that Complainant’s June 1, 2017 EEO Counselor contact was more than forty-five days after the alleged event, and therefore untimely raised with an EEO Counselor. While the Agency noted that generally the denial of a reasonable accommodation is a recurring violation, in this instance the denial ceased on March 7, 2017, when the accommodation was provided. With respect to the denial of a shift change (claim (1)), the Agency found the request to be “disingenuous”. Citing Complainant’s own medical documentation, the change3 was based upon the stress he experienced in picking up his infant child from childcare on time, which purportedly 2 In February 2018, Complainant attempted to amend the complaint to include a claim that, on January 24, 2018, his supervisor did not confirm his appointment to resolve computer issues and PIV card renewal until the day before. The Agency denied the request to amend, reasoning that the incident was supportive evidence of accepted claims. The claim, nevertheless, was considered as part of the broader harassment claim. 3 Complainant was assigned to work 8:00 a.m. until 4:30 p.m. and sought to move to the 7:00 a.m. to 3:30 p.m. shift. 2019003859 3 exacerbated his IBS and migraine symptoms. Yet the same documentation stated that Complainant’s conditions were controlled by his medications. The Agency reasoned that there was no indication that the shift change “would have any impact on the infrequent symptoms Complainant may experience.” In denying Complainant’s reasonable accommodation request to no longer be assigned face-to- face patient intakes and appointments (claim (2)), the Agency reasoned that Complainant was not a qualified individual with a disability. Complainant, in the Agency’s view, did not show that his disabilities substantially impaired a major life activity that could be accommodated by removing the face-to-face telehealth meetings from his job duties. Instead, noted the Agency, Complainant stated he could not perform the function because he did not want to be “concerned with his appearance”. As for the written counseling (claim (3)), the Agency found that management proffered a legitimate, non-discriminatory reason for issuing the memorandum: Complainant had refused to see a patient despite being present in the office and refused to answer the office phones as instructed. Finally, the Agency considered Complainant’s claim that he was subjected to discriminatory harassment, which purportedly encompassed unfair assignments, a larger workload, delays in approving his leave requests, and delays in implementing his telework request. According to the Agency, Complainant failed to show that his workload or assignments were significantly larger than his co-workers. Instead, clinic reviews indicated that Complainant’s production levels were less than others. As for any delays, these were usually only a matter of days and not sufficiently harmful to constitute harassment. Complainant filed the instant appeal. 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”). Procedural Dismissal In its decision, the Agency dismissed Complainant’s claim that, on March 7, 2017, his reasonable accommodation request was provided after an unreasonable delay. Specifically, the Agency reasoned that Complainant waited past the forty-five day time limit to contact an EEO Counselor. 2019003859 4 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record shows that Complainant contacted the EEO Counselor on June 1, 2017, well beyond the forty-five day time limitation. Complainant has not addressed the dismissal on appeal, and the record does not contain any proffered reason for the delay. Therefore, we find the dismissal was proper.4 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). 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). In the instant case, for the purposes of analysis only, we shall find Complainant is a qualified individual with a disability. In claim (1), Complainant contends the Agency failed to change his schedule, to the earlier 7:00 a.m. to 3:30 p.m. shift, as a reasonable accommodation for his IBS and migraines. In an Agency form entitled “Request for Medical Documentation”, Complainant’s health care provided stated that the shift change was needed because, while the IBS and migraines “are controlled with medication”, 100% control was not possible. In his current shift, Complainant is “stressed to complete all required job duties and then must rush or be late to pick up child on time.” By moving to the earlier shift, which would reduce Complainant’s stress levels, his symptoms would decrease and “increase [his] enjoyment.” Complainant has not established that the requested shift change is sufficiently related to his medical conditions and ability to perform his job duties. He provides no explanation as to how or why working 8:00 a.m. to 4:30 p.m. renders him unable to perform the essential functions of his job or aggravates his conditions. 4 We note that the Agency’s analysis of Complainant’s harassment claim did include the alleged delay in providing telework. Consequently, the event was also considered in the Commission’s review of the harassment allegation. 2019003859 5 While Complainant contends stress can increase his symptoms, the purported stress described is related to picking up his small child from childcare, not a term, condition, or privilege of Complainant’s employment. While the shift change may increase his personal “enjoyment” of the job, this matter is not the purpose of a reasonable accommodation. Similarly, in claim (2), Complainant attested that he should have been granted the removal of telehealth face-to-face patient intakes and appointments “so that I can enjoy my employment.” In the supporting medical documentation, Complainant’s health care provider states that his disabilities have an impact upon his ability to conduct face-to-face visits because he needs to be able to treat his symptoms (i.e. eat, take medications, blow nose, cough) at unscheduled times. By granting the request, the provider continues, Complainant will “not be concerned about his appearance where patients may assume [he] is sick.”5 There is no evidence in the record that Complainant’s ability to be “camera-ready” for patient interactions is related to his medical conditions. He has not shown that his possible coughing or sniffling have prevented him from performing this job duty. There is no evidence that conducting these face-to-face meetings exacerbate his conditions. While Complainant may prefer and “enjoy” his job more in the absence of this duty, he is not entitled to a reasonable accommodation removing this function. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In claim (3), Complainant alleges his June 2, 2017 written counseling was discriminatory. A copy of the counseling reflects that the counseling was issued due to Complainant’s failure to see an assigned patient. Additionally, on the same day, Complainant was instructed to cover the office phones from 3:30 to 4:30 pm, the last hour of his shift. Complainant responded by asking why another employee could not stay and work overtime to take the phones. 5 In a letter date May 5, 2017, Complainant’s health care provider also stated he has been diagnosed with “Stressful Work Schedule”. 2019003859 6 Complainant’s supervisor, the Outpatient Pharmacy Chief (hereinafter “Chief”), attested that Complainant failed to see a patient, that was onsite, for new enrollment. The Chief stated that to have the patient return at another time or day would have created an unnecessary barrier to receiving care. Complainant disputes the Agency’s reasoning, stating that he did not “refuse” to see the patient but rather had a sore throat and wanted someone else to meet the patient. The Agency questions the truthfulness of Complainant’s statement, noting that he did not mention a sore throat on the day of the incident and remained at work for the entirety of his shift. Regarding phone coverage, Complainant argues that he did not decline to perform the task but simply “was questioning management about team work and coverage. . . .” While Complainant challenges the reasoning for the written counseling and management officials’ view of the incident, he has not met his burden in showing that the counseling was motivated by discriminatory animus. Complainant has not provided any supportive evidence establishing a connection between the counseling and his disabilities, national origin or sex. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, 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 - in this case, his disabilities, national origin or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant’s claim of harassment is comprised of allegedly unfair workloads and assignments, as well as delays in approving requests for leave and telework. The instant record, however, does not show Complainant’s workload to be significantly more than his co-workers. In fact, in many instances his production levels are lower. 2019003859 7 Regarding assignments, the Agency explained that one of the Pharmacists, the Clinic Manager, handled most of the patient intake phone calls, to allow her the flexibility to manage the clinic. Regarding alleged delay in telework, the record indicates that it took approximately six weeks to obtain necessary approvals and implementation. The record reflects some minor delays when Complainant encountered problems with Softphone, but the Agency’s IT department was able to resolve the issue within a matter of days. Quite simply, the record does not support Complainant’s account of events. Moreover, even if the inequities and delays were as described by Complainant, they were not sufficiently severe or pervasive to create a hostile work environment. Rather, we find Complainant’s allegations to simply reflect the managerial decisions that are made to effectively run the clinic. Lastly, Complainant has not shown that any of the allegedly harassing events were due to his protected bases. CONCLUSION Accordingly, the Agency’s decision finding no discrimination is AFFIRMED. 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. 2019003859 8 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). 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. 2019003859 9 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 January 8, 2021 Date