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

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020002522 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002522 Hearing No. 430-2018-00294X Agency No. 2004-0565-2017103542 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 January 29, 2020, final order concerning her 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 order. BACKGROUND Complainant was a Physician’s Assistant at the Agency’s Medical Center located in Fayetteville, North Carolina. On July 29, 2016, Complainant was turning in her desk chair when her ankle rolled under the chair resulting in a sprain. She immediately completed a Notice of Traumatic injury in the facility’s online reporting system before seeking medical treatment. She also completed the required paperwork to report her injury and handed it to her supervisor. On April 3, 2107, her attorney received the Office of Workers’ Compensation Programs (OWCP) file from the Department of Labor. Complainant subsequently became aware that none of her medical documentation from the time surrounding her injury was in the file. 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. 2020002522 2 The record indicates that Complainant received leave and Continuation of Pay through the workers’ compensation program for a period, but on December 30, 2016, her workers’ compensation claim was denied. Complainant also requested Family and Medical Leave Act (FMLA), but on February 3, 2017, her request was denied because she did not provide updated medical documentation by January 12, 2017. On or about February 13, 2017, Complainant was sent an Order to Return to Duty that required her return no later than February 27, 2017.2 Complainant did not return to duty, however. Complainant received a letter dated April 28, 2017, stating that a Professional Standards Board (PSB) was being convened to conduct a summary review of her employment during her probationary period. The PSB reviewed the following five alleged deficiencies in her conduct: 1) failure to maintain credentialing at the Naval Hospital at Camp Lejeune; 2) failure to participate and maintain an agreed upon process; 3) failure to return to duty; 4) failure to properly request leave; and 5) being absent without official leave (AWOL). With respect to deficiency 1, the Agency noted that Complainant’s credentials expired on October 16, 2016. In August 2016, Complainant was notified by email that her credentials would expire at midnight, October 16, 2016, and that she needed to renew them. On January 24, 2017, Complainant was sent another credential application packet, but it was never submitted. With respect to deficiency 2, the Agency stated that, during a video conference on December 5, 2016, Complainant agreed to participate in a weekly meeting, but failed to do so, except for one phone call meeting on December 14. The weekly meetings were intended “to keep the lines of communication open, to encourage [Complainant] to complete the re-credentialing process, to keep [her] informed of ongoing . . . policy and procedural changes, to answer any questions that [she] may have regarding programs such as FMLA, RA, and EAP.” According to the Agency, Complainant failed to make herself available for scheduled telephone meetings on December 7, 2016, December 21, 2016, December 28, 2016, January 11, 2017, and January 18, 2017, after which the meetings were discontinued. Regarding deficiency 3, following the denial of her OWCP claim and FMLA request, Complainant was ordered to return to work by February 27, 2017, but she did not return. Regarding deficiency 4, on February 13, 2017, she was informed that she had no sick leave, annual leave, or approved leave without pay to cover her absences; therefore, she was ordered to return to work. Regarding deficiency 5, the Agency noted that Complainant had been in an AWOL status since February 27, 2017. In response, Complainant cited several reasons why her credentials at Naval Hospital Camp Lejeune expired. According to Complainant, initial emails to her were never received due to her inability to access her government email addresses; there was a medical clearance requirement for credentialing, and her physician refused to certify that she was medically able to carry out the duties as a full time employee; and she was told that she would not be credentialed while taking her current medications. 2 Complainant was advised that she could request up to 12 weeks of unpaid FMLA leave and was provided the criteria for such a request. 2020002522 3 Complainant also maintained that her disability caused her to experience insomnia and that it was “extremely difficult” for her to make the calls at the scheduled time of 11:30 a.m. According to Complainant, she asked that the meeting be scheduled for the afternoon, but her request was denied. Complainant also maintained that the meetings were against the medical advice of her physician, and that at the later direction of her legal counsel, she no longer participated in activities that were against medical advice. Regarding her being ordered to return to work, Complainant cites her inability to drive, noting the lack of public transportation, and asked, “[p]lease tell me how I was to return to duty with instruction not to drive a motor vehicle.” Regarding her being in an AWOL status, Complainant noted her inability to access the Agency’s Time and Attendance system from home and noted that “[a]t the present time I am medically unable to perform my duties.” On May 17, 2017, the PSB convened and sustained four of Complainant’s five alleged performance deficiencies.3 The PSB recommended to A1, the former Director of the Medical Center, that Complainant be separated during her probationary period. On May 23, 2017, Complainant received a letter stating that she was being terminated based upon a summary review by the PSB. The letter was signed by A1. A1 was Complainant’s 4th or 5th level supervisor and had no working relationship with her. Complainant argued that the termination was based entirely on her injury because, due to the injury, she could not complete her credentialing process, participate in the agreed upon processes, return to duty, and request leave which she did not have. Complainant filed a complaint alleging discrimination based on disability (chronic debilitating pain in the lower leg, ankle, and foot) when: 1) on July 24, 2016, Human Resources failed to submit necessary documents to support her injury claim to the Department of Labor; and 2) on May 23, 2017, she received a Letter of Termination from A1, Director, for failure to qualify during the probationary period with an effective date of May 25, 2017. After its investigation into the complaint, the Agency provided Complainant with copies of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On July 11, 2018, AJ1 issued a Notice of Intent to Sanction and Order to Show Cause because of Complainant’s failure to attend the initial conference scheduled that day. B1, Complainant’s attorney, responded indicating that he mistakenly thought the initial conference was scheduled for the next day. In addition to apologizing, B1 noted that when he discovered his error on July 11, he attempted to contact AJ1 and the Agency’s representative. Thereafter, AJ1 imposed a sanction that denied discovery to Complainant, and limited her to using the Report of Investigation (ROI). On September 25, 2018, AJ2 issued an Order on Initial Conference, Deadlines, and Record Completion. 3 The PSB found insufficient evidence to sustain deficiency #4. 2020002522 4 In that order, AJ2 established October 2, 2018, as the date Complainant had to submit a demand to the Agency outlining all monetary and non-monetary relief that she was seeking. The Agency was ordered to respond by October 12, 2018, but did not comply. On December 14, 2018, the Agency submitted a motion seeking dismissal of claim 1 on the grounds that it did not state a claim because it was a collateral attack on the OWCP process, and a decision without a hearing on claim 2 finding no discrimination. On January 9, 2020, AJ3, now assigned to the case, granted the Agency’s motion dismissing claim 1, but ordered the parties to submit a supplemental declaration and other relevant documentation on Complainant’s reasonable accommodation request and its processing. Upon receipt of this documentation, AJ3 subsequently issued a decision by summary judgment in favor of the Agency. The documentation showed that Complainant, after being directed to return to work, indicated that she was unable to work based on her injury. On March 7, 2017, she was sent a reasonable accommodation request form and told that she could contact D1, Local Reasonable Accommodation Coordinator for assistance. On April 4, 2017, Complainant submitted documentation requesting a reasonable accommodation based upon her condition. On April 6, 2017, however, Complainant emailed management stated that she was withdrawing her request for accommodation based on advice from her legal counsel. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that the Agency’s final order should be reversed because: (1) AJ3 erred in granting summary judgment in favor of the Agency because genuine issues of material fact exist; (2) the Agency and AJ3 applied the wrong legal analysis; (3) because of AJ1’s sanction, she was prevented from engaging in discovery; and (4) AJ3 did not respond to her request for sanctions against the Agency for not responding to AJ2’s order, which required the Agency to respond to Complainant’s demand for monetary and non-monetary relief by October 12, 2018. ANALYSIS AND FINDINGS At the outset, we note that Complainant, on appeal is not challenging AJ3’s proper dismissal of claim 1 on the grounds that it failed to state a claim. We, therefore, AFFIRM that dismissal. AJ’s Issuance of a Decision Without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2020002522 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We have carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. For reasons that will be discussed herein, we find that AJ3 correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Complainant argues that the Agency and AJ3 applied the wrong legal analysis in this case because she was not arguing that she was subjected to disparate treatment, but rather she maintained that the Agency’s actions constituted direct evidence of disability discrimination when she was terminated. Direct evidence is either written or verbal evidence that, on its face, demonstrates bias and is linked to an adverse action. Pomerantz v. Dep’t of Veterans Affairs, EEOC Appeal No. 01990534 (Sept. 13, 2002). Where there is direct evidence of discrimination, there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Moreover, where the trier of fact finds that there is direct evidence of discrimination, liability is established. Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992, Section III; EEOC Compliance Manual § 604.3, “Proof of Disparate Treatment,” at 6-7 (June 1, 2006). Although Complainant maintained that the Agency’s actions, specifically, its May 23, 2017, termination letter constituted direct evidence of disability discrimination because it was based entirely upon her disability, we do not agree. On its face, the May 23, 2017, termination letter does not refer to Complainant’s disability; nor does it in any other way demonstrate disability played a role in her termination. The Agency maintained that Complainant was terminated as result of the findings of the PSB that she failed to maintain credentialing at Naval Hospital Camp Lejeune, failed to participate and maintain an agreed upon process, failed to return to duty, and had been in an AWOL status since February. Although Complainant may believe that these reasons were linked to her disability, on their face, they do not indicate disability discrimination. Having found that there was no direct evidence of disability discrimination, we find that neither the Agency nor AJ3 erred by viewing this as a disparate treatment case. 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 2020002522 6 discrimination, Complainant must demonstrate that: (1) she is an “individual with a disability;” (2) she is “qualified” for the position held or desired; (3) she 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, for purposes of this decision only, Complainant established that she was a qualified individual with a disability, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and the circumstances surrounding her termination do not give rise to an inference of discrimination. Complainant provided various explanations for why she did not or was unable to comply with the Agency’s requirements and orders, but she does not provide evidence that creates a genuine issue of material fact that her disability played a role in her termination. Pretext analysis is not concerned with whether the actions were unfair or erroneous but whether the actions were motivated by discriminatory animus. Gregg B. v. Dep’t of the Army, EEOC Appeal No. 0120151783 (June 7, 2017); Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). The fact that the Agency, as late as January 2017, was attempting to work with Complainant on the credentialing issue does not indicate discriminatory animus. Moreover, if there were disability related reasons that prevented Complainant from participating in the meetings, and returning to work, her withdrawal from the reasonable accommodation process prevented the parties from engaging in an interactive process that might have found an accommodation for her. We find that we need not address whether the sanction imposed by AJ1 was appropriate. Even if the sanction was too harsh, which we do not address in this decision, we find that the sanction did not change the outcome in this case because even if the sanction had not been imposed, a decision without a hearing finding no discrimination was appropriate. Likewise, we find that AJ3’s failure to address Complainant’s sanction request to be at best a harmless error given our determination that Complainant did not demonstrate that she was subjected to discrimination and therefore was not entitled to the relief she sought. Regarding Complainant’s termination, we specifically note that where a complainant is a probationary employee, we have long held that he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). As noted above, Complainant did not provide any evidence that raised a genuine issue of material fact that her disability played a role. CONCLUSION We AFFIRM the Agency’s final order. 2020002522 7 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). 2020002522 8 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 August 24, 2021 Date