Rufus G.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120150058 (E.E.O.C. Feb. 23, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rufus G.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150058

Agency No. 200J-0334-2011102902

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the September 15, 2014, final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Support Services
Representative at the Agency’s VA Regional Office in Lincoln, Nebraska. Complainant
experiences complications from depression, anxiety, and bipolar disorder. In July 2010,
Complainant broke his back. As a result, Complainant was absent from work from July 9,
2010 through August 20, 2010. On July 30, 2010, Complainant’s supervisor (S1) contacted
Complainant to discuss his leave balances. Complainant’s wife emailed S1 requesting that he
contact her instead of Complainant. S1 responded to Complainant’s wife informing her that he
could not discuss Complainant’s work issues with her unless she was designated as his
representative. S1 provided Complainant with a designation of representative form and a fax
number to submit the form. Complainant submitted the form, and his wife became his
designated representative.

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.
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On August 2, 2010, Complainant’s wife informed S1 that Complainant would not be returning
to work that day as had been expected. Complainant’s wife stated that Complainant had an
appointment the next day and they would “wait and see what they say about returning to work
if he can find someone to drive him, or maybe there is a possibility to work from home - I
don't know.” On August 12, 2010, Complainant’s doctor recommended that Complainant
remain out of work until August 20, 2010.

On August 13, 2010, Complainant’s wife met with the Director of the facility and S1. During
the meeting, Complainant’s wife informed them about Complainant’s mental illness and
requested advanced sick leave for Complainant. The Director granted Complainant 40 hours
of advanced sick leave as requested. Complainant claims that during this meeting, S1 and the
Director noted that Complainant could be disciplined for his absences. Complainant
subsequently returned to work after August 20, 2010.

On August 31, 2010, S1 issued Complainant a counseling for his failure to request leave or
provide notification of his absence between July 13, 2010 and August 2, 2010. On September
7, 2010, Complainant reported to work late, and S1 issued a second counseling. In January
2011, Complainant failed to coordinate and conduct the quarterly emergency drill, and S1
issued Complainant a third counseling. Following the third counseling, on January 14, 2011,
S1 issued Complainant a Notification of Unacceptable Performance/Opportunity to Improve
memorandum.

In March 2011, Complainant’s wife requested a leave audit to determine how much leave
Complainant had available. On March 15, 2011, S1 informed Complainant that he had no
available annual leave and no available sick leave. On March 9, 2011, Complainant requested
12 weeks of leave without pay (LWOP) under the Family Medical Leave Act (FMLA). On
March 23, 2011, Complainant’s request was granted, and he was placed on LWOP from
March 24, 2011 through June 20, 2011.

In April 2011, Complainant’s wife submitted a request for seven reasonable accommodations
for Complainant. The requested accommodations were: to be reassigned to an alternative work
location; to address the hostile work environment created by Complainant's co-workers and
supervisor; to create a flexible work schedule for Complainant; to restructure Complainant's
position description; to establish a policy by which Complainant is provided all work
instructions verbally and in writing; to require mandatory training for his supervisor and
Human Resources (HR) personnel regarding mental health conditions and communicating with
people with disabilities; and to have minimal interaction with two of his co-workers (CW1 and
CW2). Complainant submitted two statements from his medical providers in support. Doctor
1 stated that Complainant’s work schedule should be adjusted “to allow break at end of day to
go to chiropractic treatment.” Doctor 2 stated that Complainant was incapacitated from March
9, 2011 to June 1, 2011, and that Complainant would need “a reduced work schedule of 3-4
hours per day 2-3 days per week from June 1, 2011 through July 1, 2011.” Doctor 2 noted
that Complainant’s condition would cause “episodic flare-ups periodically preventing
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[Complainant] from performing [his] job functions.” Doctor 2 added that Complainant would
need to be absent from work during the flare-ups.

Management granted only one of the requested accommodations: Complainant was offered a
flexible work schedule which permitted him to work his daily eight-hour shift anytime between
6:00 a.m. and 6:00 p.m. Additionally, management offered to make adjustments to
Complainant’s workstation as needed. The record indicates that Complainant left employment
with the Agency in December 2011.

On June 1, 2011, Complainant filed a formal complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the basis of disability when:

1. On July 30, 2010, his supervisor informed him that he could not communicate with
his wife unless she was appointed as his representative in writing;

2. On August 2, 2010 his wife inquired about the possibility of him working from
home but his supervisor would not discuss the issue;

3. On August 13, 2010, he was threatened with being written up and/or terminated
regarding his leave balance;

4. On August 31, 2010, September 7, 2010, and January 7, 2011, he was issued letters
of counseling;

5. On January 14, 2011, his supervisor issued him a Notification of Unacceptable
Performance/Opportunity to Improve memo;

6. On March 15, 2011, his supervisor conducted an audit on his leave balance;

7. His request for leave without pay (LWOP) from March 9, 2011, through June 1,
2011, was not approved until March 24, 2011;2 and

8. On May 23, 2011, he was denied a reasonable accommodation.

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 Equal
Employment Opportunity Commission Administrative Judge. Complainant timely requested a
hearing, but subsequently withdrew his request. Consequently, the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

2 The record reveals that Complainant withdrew this claim in his investigative affidavit. ROI,
Ex. B1, at 52-53.
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In the FAD, the Agency initially assumed that Complainant established that he is a qualified
individual with a disability. The Agency determined that Complainant failed to show that the
alleged incidents were based on discriminatory animus. For example, Complainant alleged
that S1 harassed him when he informed Complainant’s wife that he could not share
Complainant’s work-related issues with her unless she was designated as his representative.
Further, Complainant claimed that he was harassed when S1 did not respond specifically to his
wife’s suggestion that he could possibly work from home. The Agency determined that once
Complainant’s wife was officially designated as his representative, S1 communicated with her
regarding work-related issues. The Agency noted that S1 did not know of Complainant’s
mental disability at the time Complainant’s wife sent the email.

With respect to the August 2010, September 2010, and January 2011 letters of counseling, the
Agency determined that management issued the letters for legitimate business reasons. On
August 31, 2010, S1 counseled Complainant because he did not request leave or provide
notification of his whereabouts between July 13, 2010 and August 2, 2010. On September 7,
2010, Complainant arrived late for work, and S1 issued a second counseling. In January 2011,
Complainant failed to fulfill one of his critical job duties by failing to coordinate and conduct
the quarterly emergency drill, and S1 issued a third counseling based on the incident.

Regarding the Notification of Unacceptable Performance/Opportunity to Improve (PIP)
memorandum, the Agency determined that Complainant was placed on the PIP because he
failed to satisfactorily fulfill the essential duties of his position, specifically when he failed to
coordinate and conduct a quarterly emergency drill. This duty was one of Complainant’s
essential functions. As to the leave audit, the Agency concluded that it was conducted to
determine Complainant’s leave availability and that Complainant’s wife had requested the
results at least three times on Complainant’s behalf.

Finally, with respect to Complainant’s reasonable accommodation requests, the Agency
determined that Complainant failed to present evidence showing that his impairments precluded
him from meeting the functions of his position. Complainant requested seven reasonable
accommodations, but the Agency found that he did not present any supporting documentation
to support the need for the accommodations requested. Further, Complainant did not present
evidence establishing that he could not perform his duties without the requested
accommodations or how his mental conditions preventing him from enjoying the same
conditions, benefits, and privileges of employment enjoyed by those without his condition.
The Agency found that none of his submitted medical documentation supported his stated need
for the requested accommodations except for his request for a flexible work schedule, which
was granted. In addition to being granted a flexible work schedule as suggested by
Complainant’s mental health provider, management also offered to give Complainant as much
time as he needed to write down any verbally-presented work instructions and to make any
necessary adjustments to his work environment. Furthermore, the Agency noted that
Complainant was granted more than 12 weeks of LWOP.

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The Agency concluded that management officials provided effective accommodations and
offered alternative accommodations. Complainant, through his wife, refused to accept the
accommodations presented or to discuss possible accommodations other than those he
requested. As a result, the Agency concluded that management took reasonable steps to
accommodate Complainant and he failed to show that he was denied reasonable
accommodation in violation of the Rehabilitation Act. Accordingly, the Agency found that
Complainant had not been subjected to discrimination or a hostile work environment as
alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, contends that the Agency failed to reasonably
accommodate him. Complainant argues that the Agency should have granted all of the
requested accommodations and that Agency officials failed to show that doing so would have
created an undue burden. Complainant contends that Agency officials did not need additional
medical documentation in support of his reasonable accommodation requests since they did not
dispute that he had a qualified disability. Further, Complainant contends that the Agency
failed to engage in the interactive process in good faith. Finally, Complainant alleges that
management officials subjected him to a hostile work environment when S1 refused to talk to
his wife until she was appointed his representative, threatened him with termination due to his
low leave balance, issued several letters of counseling, placed him on a PIP, and conducted a
leave audit. Accordingly, Complainant requests that the Commission reverse the FAD. The
Agency submitted a statement in which it urged the Commission to affirm its final decision.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected classes; (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).

Therefore, 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. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.
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Here, Complainant alleged that based on his protected classes, management subjected him to a
hostile work environment as evidenced by multiple incidents. The Commission finds that the
record does not show that the Agency subjected Complainant to a hostile work environment.
Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to
create a hostile work environment, Complainant failed to show that the Agency's actions were
based on discriminatory animus. For example, with regard to claims (1) and (2), S1 stated that
management discussed the matter with Regional Counsel and they were advised to ask
Complainant and his wife to submit a statement appointing her as his representative prior to
discussing Complainant’s personal work-related information. ROI, Ex. B2, at 12-13.
Complainant’s wife emailed S1 on August 2, 2010 stating that “we will wait to see what they
say about returning to work if he can find someone to drive him or maybe there is a possibility
to work from home. I don’t know.” S1 stated that Regional Counsel advised him that the
message could have been interpreted as a request to work from home as conditioned solely
upon whether Complainant could find someone to drive him to work. Id. at 13-14.
Nonetheless, Complainant was not cleared to return to work until August 20, 2010. Regarding
claim (3), S1 and the Director both denied threatening Complainant with termination. Id. at
16; ROI, Ex. B3, at 33-35. The Director added that the meeting at issue was requested by
Complainant’s wife to advance Complainant sick leave, and he granted it because he wanted to
assist Complainant in returning to work. ROI, Ex. B3, at 33-36.

As to the letters of counseling and placement on the PIP, S1 stated that he issued the August
31, 2010 letter of counseling for Complainant’s failure to report his leave and duty status
accurately and timely. ROI, Ex. B2, at 17. S1 affirmed that he issued the September 7, 2010
letter of counseling because Complainant was late reporting to work and failed to provide
notification. Id. at 17-18. S1 confirmed that he issued the January 7, 2011 letter of counseling
after Complainant failed to coordinate and conduct a quarterly emergency evaluation drill as
required. Id. at 18. Since the quarterly evaluation drill was a critical element on
Complainant’s performance standards, S1 placed Complainant on a PIP because he did not
meet the standard. Id. at 22; ROI, Ex. A3, at 11.

Regarding the leave audit, S1 stated that he conducted an audit after a question about
Complainant’s leave balance came up during a meeting with Complainant’s wife and the
Human Resources Liaison. ROI, Ex. B2, at 25. Complainant’s wife requested the results of
the leave audit, and S1 informed her that Complainant had no sick or annual leave remaining.
Id. at 25-27; ROI, Ex. C4.

The record reflects that the alleged incidents were more likely the result of routine supervision,
managerial discipline, personality conflicts, and general workplace disputes and tribulations.
The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior
so objectively offensive as to alter the conditions of the victim's employment.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Furthermore, to the extent that
Complainant claims that his co-workers subjected him to a hostile work environment,
Complainant provided no details about the alleged harassing incidents. Additionally, there is
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no evidence that Complainant reported any alleged harassing conduct to any management
official. Finally, to the extent that Complainant claims that he was subjected to disparate
treatment, the Commission finds that Complainant has not proffered any evidence showing that
the Agency's articulated reasons were a pretext for discrimination. As a result, the
Commission finds that Complainant was not subjected to discrimination or a hostile work
environment as alleged.

Denial of Reasonable Accommodation

Under the Commission's regulations, 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) and (p). The Commission shall assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

The record reveals that in April 2011, Complainant’s wife requested several reasonable
accommodations for Complainant including, an alternate work location; a flexible work
schedule; restructuring of his position description; sensitivity training for his supervisors on
mental health conditions and communicating with people with disabilities; minimum interaction
with certain co-workers; and written instructions. The record reveals that Complainant’s
medical documentation in support of his request included two statements from his doctors.
Doctor 1 stated that Complainant would need an adjusted work schedule to allow breaks at the
end of the day for chiropractic treatment. ROI, Ex. C2. Additionally, Doctor 2 stated that
Complainant was incapacitated until June 1, 2011; he would need a reduced work schedule
upon his return through July 1, 2011; and that Complainant may experience flare-ups
necessitating absences from work over the next six months. Id.

On May 23, 2011, the Human Resources Liaison informed Complainant that his request for
alternate work location could not be granted as there were no available jobs at one of the four
locations Complainant identified and many of his functions (including building maintenance
and repair; office equipment maintenance and repair; space allocation; and more) could only be
completed in the Lincoln Regional Office. ROI, Ex. B3, at 17-20; ROI, Ex. B4, at 10-11.
Regarding his request for minimal interaction with two co-workers, management did not grant
the request because the Support Services Division needed to work as a team and because
Complainant failed to ever report or provide details about any alleged harassing incidents.
ROI, Ex. B4, at 11; ROI, Ex. C3. As to restructuring his position description, the Director
stated that Complainant failed to submit any medical documentation demonstrating what duties
he could and could not perform, and Complainant declined to submit any additional
documentation. ROI, Ex. B3, at 25. Further, the Commission notes that an Agency is not
required to eliminate an essential function of a position to accommodate an individual with a
disability. Equal Employment Opportunity Commission Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002
at p. 9, 29 (rev. Oct. 17, 2002). Agency management noted that it would be willing to make
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any modifications to Complainant’s worksite to enable him to perform the essential functions
of his position.

With respect to his request that all instructions be provided in writing, the Director stated that
Complainant’s submitted medical documentation did not support the requested accommodation.
ROI, Ex. B3, at 26-27. Agency officials informed Complainant that his supervisor may
provide him instructions verbally or in writing, and if he did not understand the instructions
given verbally he would be given a reasonable amount of time to write down the instructions or
the supervisor would clarify. ROI, Ex. C2.

The Agency granted Complainant’s request for a flexible work schedule where Complainant
worked an eight-hour workday between 6:00 a.m. and 6:00 p.m., as it was the only
accommodation requested that was supported by his doctors’ recommendations. ROI, Ex. C2.
Further, the Agency noted that its mandatory annual training for management and other
officials fulfilled Complainant’s concerns about sensitivity training. Id.

The Agency informed Complainant that he needed to submit additional medical documentation
in support of any other accommodations. Id. Complainant objected to the Agency’s request
and refused to submit any additional medial documentation in support of the additional
documentations he requested. Under the Commission's guidelines, an agency may request
additional information when presented with a request for reasonable accommodation in order to
evaluate a complainant's proposed accommodation in comparison to his current medical needs
in order to determine what accommodation would best serve the needs of the agency and
complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC No. 915.002, at question 6 (Oct.
17, 2002). Moreover, when an individual's disability or need for reasonable accommodation is
not obvious, and he fails to provide reasonable documentation requested by the employer, the
employer will not be held liable for failure to provide the requested accommodation. Id.

Here, the record shows that Complainant failed to respond to requests for additional, more
specific documentation to assist in addressing Complainant’s condition. Therefore, the
Commission finds that Complainant has not established that the Agency failed to provide him
with a reasonable accommodation as to the accommodations not granted. Furthermore, the
protected individual is entitled to a reasonable accommodation; he is not necessarily entitled to
the accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No.
01931005 (Feb. 17, 1994). The employer may choose among reasonable accommodations so
long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400
(2002). Here, Complainant has presented no evidence that the provided accommodations and
offered alternative accommodations would have been ineffective. Accordingly, the
Commission finds that Complainant failed to prove that the Agency denied him reasonable
accommodation in violation of the Rehabilitation Act.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

February 23, 2017
Date