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

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2020004239 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Spencer T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004239 Hearing No. 460-2019-00195X Agency No. 2003-0580-2019100676 DECISION On July 20, 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 June 24, 2020, 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 During the relevant time, Complainant worked as a GS-8 Medical Instrument Technologist (MIT) in the Neurology Care Line, Neurophysiology Section, EEG Laboratory at the Agency’s Michael E. Debakey VA Medical Center in Houston, Texas. Complainant worked the night shift. Complainant’s supervisor was the EEG Laboratory Supervisor (“EEG Supervisor”). Report of Investigation (ROI) at Exhibit (Ex.) 7-1, 7-2, 7-5. In December 2014, Complainant was diagnosed with shift work disorder and obstructive sleep apnea. Complainant stated that, as a result of these conditions, he has experienced lack of focus, weight gain, hypertension, decrease in cognitive function, fatigue, and increased physical pain 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. 2020004239 2 due to lack of restful sleep. According to Complainant, starting in 2015, he sought reassignment to the day shift. Complainant averred that, although he cannot work overnight, he can perform all the duties of the MIT position. The EEG Supervisor stated that, even while working the night shift, Complainant was able to perform all his duties. ROI at Ex. 7-1, 7-2. On January 25, 2018, Complainant submitted a request for reasonable accommodation, asking to be switched to the day shift. Complainant included a letter from his pulmonologist with his request, stating that because of his uncontrolled shift work disorder, Complainant would greatly benefit from daytime work only. The physician stated that working on the night shift caused significant disruption to his sleep-wake cycle, resulting in excessive sleepiness and hindering his alertness while at work. ROI at Ex. 7-1, 7-7. The EEG Supervisor stated that after she received Complainant’s January 25, 2018, reasonable accommodation request, she forwarded it to the Local Reasonable Accommodation Coordinator (LRAC-1). According to the EEG Supervisor, because there were no open MIT positions on the day shift, LRAC-1 asked her if anyone would be willing to move from the day shift to the night shift. The EEG Supervisor averred that she and two MITs comprised the EEG Laboratory day shift and that neither of the MITs were willing to change to the night shift. Moreover, the two MITs working the day shift in the EEG Laboratory were Lead MITs. Reassigning Complainant to a Lead MIT position would constitute a promotion. The record contains February 5, February 14, and February 28, 2018, emails from the EEG Supervisor to LRAC-1 seeking the status of Complainant’s reasonable accommodation request. The record does not reflect that LRAC-1 responded to these emails. ROI at Ex. 7-2, 7-7; Complainant’s Response to Agency Motion for Summary Judgment at 6; Agency’s Reply to Complainant’s Response to Agency Motion for Summary Judgment at 3; AJ Decision at 2-3. According to Complainant, he asked the EEG Supervisor for updates on his reasonable accommodation requests multiple times but did not receive a response. On October 31, 2018, when he again sought an update from the EEG Supervisor, Complainant learned that the Agency had not acted on his reasonable accommodation request. The EEG Supervisor stated that, when Complainant asked about his reasonable accommodation request in October 2018, she went to the EEO Office and was told that reasonable accommodation requests were handled by Human Resources. According to the EEG Supervisor, LRAC-1 was not in the office when she went to Human Resources, so she sent LRAC-1 an email. The record contains an October 31, 2018, email from the EEG Supervisor, seeking the status of Complainant’s reasonable accommodation request, that was sent to Complainant, LRAC-1, and two other individuals. ROI at Ex. 7-1, 7-2, 7-7. According to LRAC-1, when she received Complainant’s reasonable accommodation request in January 2018, she contacted the EEG Supervisor to request a schedule change because such a change was solely under the control of a supervisor. LRAC-1 averred that the EEG Supervisor informed her there was not a day shift position available. 2020004239 3 According to LRAC-1, she did not hear from the EEG Supervisor again until October 2018, at which time she was no longer the LRAC for the facility. ROI at Ex. 7-3, 7-7. On November 1, 2018, Complainant’s reasonable accommodation request was forwarded to the new LRAC (LRAC-2). The next day, LRAC-2 contacted the EEG Supervisor regarding the request. According to the EEG Supervisor, LRAC-2 apologized that Complainant’s reasonable accommodation request had not been processed earlier. The EEG Supervisor stated that, when LRAC-2 asked her if she could accommodate Complainant’s request to switch to the day shift, she told him that there were no available positions on the day shift. Complainant indicated that he was willing to be reassigned to any day shift position in the Neurophysiology EEG Department but that he would not accept reassignment to a day shift position in another department. ROI at Ex. 7-2, 7-4, 7-7, 7-8; Agency Motion for Summary Judgment at 5; Complainant’s Response to Agency Motion for Summary Judgment at 8; AJ Decision at 3. In January 2019, LRAC-2 contacted the EEG Supervisor regarding a position that was opening on the 11:30 a.m. to 10:00 p.m. mid-shift. According to the EEG Supervisor, she offered the mid-shift position to Complainant, who accepted the change as an interim accommodation until a day shift position became available. The record contains a January 15, 2019, email from LRAC- 2 to Complainant, offering the mid-shift position to Complainant. Complainant stated that, although the mid-shift is preferable to the night shift, he needs to work the day shift. ROI at Ex. 7-1, 7-2, 7-4, 7-7, 7-8; Agency Motion for Summary Judgment at Ex. E. Believing that he was subjected to discrimination, Complainant contacted an EEO Counselor on November 14, 2018. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (obstructive sleep apnea and shift work disorder) when: 1. In 2016, he was not selected for the Medical Instrument Technician position that was advertised on March 21, 2016, under announcement number JP-APA- 1651953-SR; 2. From May 30, 2017, through November 2017, he was denied a reasonable accommodation; 3. On October 31, 2018, he became aware that management officials did not accommodate him and failed to engage in the interactive proves concerning his January 2018 reasonable accommodation request. The Agency accepted claim (3) for investigation. The Agency dismissed claims (1) and (2), pursuant to 29 C.F.R. § 1614.107(a)(1), for raising the same claim as a prior complaint. According to the Agency, on April 3, 2018, Complainant contacted an EEO Counselor and alleged that he was subjected to retaliatory discrimination and harassment, including: being accused of leaving bad electrodes on a patient in February 2018; receiving a low March 29, 2020004239 4 2018, mid-year evaluation; unfair assignment of patient duties since 2017; and day shift employees being treated better than employees on other shifts since 2017. On April 13, 2018, Complainant withdrew his informal complaint. The Agency reasoned that, although Complainant did not specifically raise the 2016 non-selection or the 2017 denial of reasonable accommodation, his hostile work environment claim encompassed these pre-April 3, 2018, allegations. ROI at 1-1, 2-1, 3-1. At the conclusion of the investigation of claim (3), 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. Complainant filed a motion to amend his EEO complaint to include the claims he raised with the EEO Counselor on April 3, 2018. Complainant argued that the EEO Counselor misled him by telling him that his allegations sounded like a whistleblower complaint and providing him with contact information for the Office of Special Counsel (OSC), leading him to believe that he had to withdraw his EEO complaint. However, the AJ assigned to the case denied Complainant’s motion to amend. The AJ found that Complainant withdrew his EEO complaint in writing on April 13, 2018. Additionally, the AJ noted that Complainant chose not to contact the OSC, after withdrawing his EEO complaint, because he did not think his claims were whistleblower claims based on his own research. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 30, 2019, motion for a decision without a hearing. On June 17, 2020, the AJ issued a decision without a hearing finding that Complainant failed to prove he was subjected to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant argues on appeal that, based information from the EEO Counselor, he thought he had no choice but to withdraw his informal EEO complaint in April 2018. According to Complainant, the Agency failed to act on his January 25, 2018, request for accommodation for months, failed to reasonably accommodate him, and did not establish that switching him to the day shift would constitute undue hardship. Complainant states that, as of the date he filed his appeal, the Agency had yet to provide him with a day shift position as a reasonable accommodation. In response to Complainant’s appeal, the Agency asks the Commission to affirm its final order. 2020004239 5 ANALYSIS AND FINDINGS Standard of Review 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. 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 and Denial of Motion to Amend The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. § 1614.107(a)(1), reasoning that, although Complainant did not specifically raise these events with the EEO Counselor in April 2018, they were encompassed within his hostile work environment claim. The AJ also denied Complainant’s motion to amend the instant complaint to include those claims counseled in April 2018 and subsequently withdrawn. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Further, the Commission has held that 29 C.F.R. § 1614.107(a)(1) applies to allegations withdrawn during the EEO counseling process. See Williams v. U.S. Postal Serv., EEOC Request No. 05950696 (Dec. 19, 1996). We find that the AJ properly denied Complainant’s motion to amend his complaint to include the claims raised, on April 2, 2018, and subsequently withdrawn on April 13, 2018. We do not find that the EEO Counselor misled Complainant, rather, we agree with the AJ that Complainant knowingly decided to withdraw from the EEO process. However, the Commission disagrees with the Agency’s rationale for dismissing claims (1) and (2). The 2016 non-selection (claim 1) and 2017 denial of a reasonable accommodation (claim 2), are distinct from the events raised by Complainant with the EEO Counselor in April 2018. See Reuben D. v. Dep’t of the Navy, EEOC Appeal No. 2019002962 (Aug. 4, 2020) (agency improperly dismissed harassment claims for raising same claims because claims consisted of different incidents occurring on different dates than instances of alleged harassment in prior 2020004239 6 complaint). Instead, we find that claims (1) and (2) are more appropriately dismissed on the ground that they were not raised with an EEO Counselor and not like or related to matters that were counseled. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is “like or related” to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). The matters in claims (1) and (2), regarding a 2016 non- selection and the denial of a reasonable accommodation during six-month period in 2017, could not have reasonably been expected to grow out of the original complaint concerning a mid-year evaluation and unfair assignments. Therefore, we find that the dismissal of claims (1) and (2) was proper. Decision without a Hearing We 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). 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 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. Here, Complainant has not specifically identified any genuine issues of material fact. In his opposition to the Agency’s motion, Complainant simply added additional details to the undisputed facts identified in the Agency’s motion and failed to establish a genuine dispute regarding any material facts. He also reiterated the arguments from his motion to amend, that had already been rejected by the AJ. Accordingly, we find the AJ properly issued a decision without a hearing. 2020004239 7 Denial of 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 (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). 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. 29 C.F.R. §§ 1630.2(o) and (p). “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). It is undisputed that Complainant is an individual with a disability and that he was qualified for the MIT position. Accordingly, we consider whether the Agency denied Complainant a reasonable accommodation. On January 25, 2018, Complainant requested reassignment to the day shift as a reasonable accommodation. The record reflects that, in February 2018, the EEG Supervisor contacted LRAC-1 three times to ask about the status of Complainant’s reasonable accommodation request, but there is no indication that LRAC-1 responded to these requests or otherwise processed Complainant’s accommodation request until the EEG Supervisor contacted her again on October 31, 2018. At that point, Complainant’s reasonable accommodation request was assigned to the new LRAC, LRAC-2. In January 2019, Complainant was offered reassignment to the mid-shift as an interim accommodation until a position opened on the day shift. Here, the record reflects that a number of months passed with no action on Complainant’s request for reasonable accommodation. Complainant was not offered reassignment to the mid- shift until January 15, 2019, nearly a year after his initial request. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. See Robyn D. v. Dep’t of the Air Force, EEOC Appeal No. 2021000644 (May 19, 2021). Under the circumstances of this case, we do not find that the Agency’s delay in responding to Complainant’s reasonable accommodation request violated the Rehabilitation Act. 2020004239 8 Although the Agency should have acted sooner on Complainant’s request, it is undisputed that there were no MIT positions available on the day shift between the initial date of the request, January 25, 2018, and when Complainant was offered reassignment to the mid-shift as an interim accommodation. The Agency was under no obligation to create a position on the day shift for Complainant. See Enforcement Guidance on Reasonable Accommodation at Question 24. Moreover, the two MIT positions on the day shift were Lead MIT positions, and reassigning Complainant to one of these positions would have resulted in a promotion for Complainant. The Rehabilitation Act does not require an agency to promote an employee as a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. It is also undisputed that Complainant was also unwilling to consider reassignment to a day shift position in another department. Finally, when a position in the Neurophysiology Department opened during the mid-shift, the Agency offered Complainant this position as an interim reasonable accommodation until a day shift position became available. Accordingly, we find that the Agency did not violate the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the decision without a hearing finding no discrimination. 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 2020004239 9 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). 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. 2020004239 10 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 December 15, 2021 Date