[Redacted], Lemuel D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 2022Appeal No. 2022002968 (E.E.O.C. Nov. 30, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lemuel D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002968 Hearing No. 430-2021-00096X Agency No. 2004-0590-2020104473 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 April 28, 2022, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency’s Medical Center in Hampton, Virginia. On July 9, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical) when on April 7, 2020, the Chief of Primary Care assigned him to bedside nursing duty, which violated his medical restrictions.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 initially accepted Complainant’s claim alleging that the Agency’s action violated his “reasonable accommodation.” However, during the Initial Conference for his hearing request, the parties agreed to change “reasonable accommodation” to “medical restrictions.” 2022002968 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and subsequently submitted a motion for a decision without a hearing. The Agency opposed Complainant’s motion and requested summary judgment in its favor. The AJ issued a decision by summary judgment for the Agency. The AJ noted that, following back surgery, Complainant was limited in his ability to lift; stand; and push/pull. Due to the rise of hospitalizations due to the pandemic, the Agency reassigned available nurses to the main hospital. While Complainant informed management officials that full nursing duties could violate his medical restrictions, he accepted the assignment. To address Complainant’s concerns, he was instructed to ask for assistance for tasks that were outside his restrictions. On April 23, 2020, Complainant contacted a Nurse Manager to request assistance for his bedside nursing assignment. The Nurse Manager responded that Complainant should not report for his nightshift starting on April 26, 2020, and instead, report for his regular duties on April 27, 2020. Complainant came into work for his nightshift starting on April 25, 2020, and he twisted his back while assisting a patient. As a result, Complainant was reassigned to desk duty. In response to Complainant’s claim that the Agency violated his medical restriction, the AJ determined that Complainant accepted the assignment, stating that he was “happy to help.” When Complainant reported his concerns, he was advised to not report to work on April 25/26, 2020. However, Complainant reported to work anyway, which resulted in his injury. The AJ concluded that Complainant’s claim did not rise to the level of a hostile work environment, actionable discrimination, and/or retaliation. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of his appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. 2022002968 3 See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Decision without a hearing In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, through his attorney, Complainant agrees that there are no material facts in dispute, but that the finding should be in his favor. The Agency addressed Complainant’s arguments on appeal but did not oppose summary judgment. As such, we find that the AJ properly issued a decision without a hearing. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide 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). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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). 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. See 29 C.F.R. § 1630.2(o), (p). As an initial matter, the Agency contends that Complainant is not an individual with a disability. Specifically, the Agency asserts that, since Complainant’s medical restrictions were for a short period of time, three months until he could be reassessed, his impairment should be considered temporary at the time in question. Complainant’s relevant medical documentation, dated January 21, 2020, stated that Complainant could return to work on light duty with no lifting, no prolonged standing, and no strenuous activity, until a reevaluation on April 21, 2020. ROI at 104. The Agency argues that Complainant’s medical restrictions ended on April 21, 2020, and they were not extended during the time that he worked in the inpatient unit. However, we note that the record contains additional medical documentation, dated December 5, 2019, and April 29, 2020, noting similar restrictions through June 18, 2020, pending further reevaluation. ROI at 103, 107. We find that the record establishes that Complainant’s medical restrictions extended beyond three months, with no indication that his limitations were temporary. 2022002968 4 Further, the duration of a condition is only one factor to determine if an individual is disabled, and the effects of an impairment lasting, or expected to last, fewer than six months can be substantially limiting within the definition of disability. See 29 C.F.R. § 1630.2(j)(1)(ix); Carroll G. v. Dep’t of the Navy, EEOC Appeal No. 0120182208 (Dec. 11, 2019) (the Commission determined that an Administrative Judge erred when finding that temporary impairments are not covered by the Rehabilitation Act). In this case, Complainant’s medical documentation shows that he was substantially limited in his ability to lift, stand, and engage in strenuous activity, for at least six months. Accordingly, we find that Complainant established that he is an individual with a disability. We will assume, for the purpose of analysis and without so finding, that Complainant was qualified for his position. Complainant contends that the Agency failed to accommodate him because no management official took action to ensure that he received any required assistance. On appeal, Complainant notes that, following orientation, he assisted other employees on April 15-17, 2020, and was assigned to regular patient duties for April 24-26, 2020. Complainant Appeal Brief at 3. While Complainant asserts that the Agency failed to accommodate him because management officials expected Complainant to find his own help, his need for assistance was for regular patient duties, which were not scheduled to begin until April 24, 2020.3 However, Complainant contacted the Nurse Manager on April 23, 2020, to discuss his concerns about performing regular patient duties, prior to his assumption of regular patient duties on April 24, 2020. Later on April 23, 2020, the Nurse Manager responded that Complainant should not plan to work his nightshift on Sunday April 26, 2020, and report for his normal tour on April 27, 2020. Complainant’s Motion for Summary Judgment, Exhibits 6 and 7. Complainant asserts that the AJ made a “critical factual error” when determining that Complainant was advised to not report to work on April 25/26. Complainant contends that this finding was based on a misunderstanding of the evidence, possibly due to an unsworn email from the Nurse Manager to Agency Counsel, in which she stated that she would have told Complainant not to return to work if she knew that he was scheduled. The Nurse Manager added that Complainant informed her that he switched schedules and was off until Sunday, and that she specified Sunday in her email to him because she was under the impression that he was not working until Sunday. Agency Response to Complainant’s Motion for Decision Without a Hearing, Exhibit A. However, Complainant simply asserts that the Nurse Manager’s email was “obviously incorrect and should have carried no weight whatsoever,” without any evidence to challenge the Nurse Manager’s assertions. Rather, we find that the information in the Nurse Manager’s email is consistent with an email in the record from Complainant’s Supervisor, who informed Complainant that the Nurse Manager told her that Complainant would not be working that weekend, in response to Complainant stating that he worked the nightshift on April 24, and 25, 2020. ROI at 111. 3 In his report of contact, Complainant attested that he received assistance in previous shifts, prior to his accident on April 26, 2020. Complainant Motion for Summary Judgment, Exhibit 8. 2022002968 5 Complainant further contends that being told not to work on April 25/26 is not the same as the Nurse Manager stating that, had she known that Complainant was working, she would have instructed him not to report in. However, it is nonsensical to expect the Nurse Manager to instruct Complainant to not work on a day that she did not believe he was scheduled to work. Complainant asserts that the Agency did not provide any evidence that anyone told him to stay home on April 25/26, but Complainant provided no evidence showing that he informed any management official that he planned to report to work on April 25, 2020. As such, we are not persuaded that the AJ made a “critical factual error.” Complainant also argues that the AJ erred in omitting critical facts that Complainant had no option to accept or decline the reassignment; and that management said that they would assign him to limited duty or as a runner. However, we find that Complainant stated in his rebuttal that he “did not refuse” when he was informed of the assignment, which would indicate that he could have refused but chose not to do so. ROI at 63. Regarding whether Complainant should have been assigned to limited duty or as a runner, we find that this is not a material or critical fact because the Nurse Manager instructed Complainant to not report for the nursing assignment at issue and return to his regular assignment. Complainant further asserts that the AJ’s decision was questionable because it was incomplete when the AJ wrote, “As such, I find that the Complainant is unable to establish that,” without completing the sentence or paragraph. However, we find that this was a harmless error that did not appear to affect the AJ’s ultimate decision. Complainant argues that the AJ erred in concluding that there was no discrimination but ignored the facts that: Complainant had a medical condition that required accommodation; management was aware of his limitations; management knowingly assigned him work that exceeded his restrictions; and Complainant was injured performing those assigned duties. However, in looking at the specific facts of this case, we find that the Agency did not fail to provide a reasonable accommodation. While the Nurse Manager erred in her understanding of Complainant’s work schedule, Complainant did not respond to the Nurse Manager to clarify that he planned to work prior to April 26, 2020. Instead, Complainant chose to report to work on April 24, and 25, 2020, unbeknownst to the Nurse Manager. Complainant further argues that, even if he reported to work after being told to stay home, management had assigned him duties that exceeded his restrictions. However, Complainant provided no explanation for why he reported to work after receiving the Nurse Manager’s email, in which she responded to his very concerns about duties exceeding his limitations by instructing him to not report for those duties. We find that the Agency properly granted an accommodation to remove those duties from Complainant, and the AJ correctly determined that Complainant reported to work anyway, which resulted in his injury. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2022002968 6 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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). 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. 2022002968 7 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 November 30, 2022 Date Copy with citationCopy as parenthetical citation