Sallie M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20180120172836 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sallie M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172836 Agency No. 2003-0609-2015101383 Hearing No. 440-2015-00203X DECISION On August 14, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 4, 2017 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On June 29, 2014, Complainant was hired as a Licensed Practical Nurse, GS-0620-5, at the Agency’s Marion VA Medical Center in Marion, Illinois, subject to a one-year probationary period. On February 11, 2015, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on disability when: 1. on October 26, 2014, the Nurse Manager failed to respond to her request for reasonable accommodation; and 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. 0120172836 2 2. on December 12, 2014, the Nurse Manager terminated her from her Licensed Practical Nurse position during her probationary position. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On July 27, 2017, the AJ issued a decision by summary judgment in favor of the Agency. The AJ found the following pertinent undisputed facts were established during the investigation of the complaint: As a Licensed Practical Nurse, Complainant’s duties were as follows: taking complete care to patients, including lifting, bathing, feeding, shaving, transferring patients and climbing stairs. On August 30, 2014, Complainant asserted that she sustained an on-the-job injury when she injured her back. Complainant claimed she was unable to perform the essential functions of her Licensed Practical Nurse position. Complainant worked several days between August 30, 2014 and September 11, 2014. Complainant, however, did not work after September 11, 2014. On September 11, 2014, Complainant requested reasonable accommodation. Specifically, Complainant requested reassignment to any position that did not require her to climb the stairs, transport patients, and would require no lifting, bending, pulling and standing. Complainant’s employment was terminated during her probationary period effective December 12, 2014, due to unacceptable attendance for failing to come to work without authorization. Agency management did not receive the required medical documentation for her absences from work until well after Complainant was terminated during her probationary period. Complainant asserted that the Nurse Manager failed to respond to her request for reasonable accommodation and, on December 12, 2014, terminated her from her Licensed Practical Nurse position during her probationary position. The Nurse Manager was Complainant’s supervisor during the relevant period. The Nurse Manager stated that she was not aware of Complainant’s alleged on-the-job injury until September 9, 2014, when Complainant told her that she injured her back on August 30, 2014. The Nurse Manager stated that at that time, Complainant did not feel she could continue working as a Licensed Practical Nurse and indicated she was considering resigning from Agency employment. The Nurse Manager stated, however, Complainant later requested reasonable accommodation in the form of a reassignment. The Nurse Manager stated that she immediately contacted a Human Resources representative, who provided Complainant with the proper paperwork for requesting an accommodation. 0120172836 3 The Acting Chief, Human Resources Management Service, stated that Complainant was provided with the paperwork and detailed instructions on how to request an accommodation, but never returned the paperwork until well after her termination was effective. The Acting Chief added that she was asked to provide supporting medical documentation, and “she was asked again by certified letter that she signed for on 11-8-14. This documentation was not provided until after her termination was effective.” The Acting Chief stated that “with no communication from the Complainant, no medical information with which to make an accommodation decision, no information as to when the employee could return, a decision was made to terminate the Complainant during her probationary period.” Complainant was terminated for being Absent Without Official Leave (AWOL). Based on this evidence, the AJ concluded no discrimination was proven. On August 4, 2017, the Agency issued a final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. 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). 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 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, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 0120172836 4 For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on the basis of prior protected activity. Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will presume for purposes of analysis only, and without so deciding, that Complainant is a qualified individual with a disability. Here, Complainant claimed that management failed to provide her with a reasonable accommodation. We find, however, that record evidence fully supports the AJ’s determination that Agency management attempted to engage Complainant in an interactive process to determine how it could accommodate her, but she failed to timely submit the required medical documentation in support of her reasonable accommodation request. We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 0120172836 5 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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. 0120172836 6 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 December 7, 2018 Date Copy with citationCopy as parenthetical citation