Terrance S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120171618 (E.E.O.C. Nov. 15, 2018)

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

Terrance S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120171618

Hearing No. 430-2014-00424X

Agency No. 2004-0558-2014100399

DECISION

On March 31, 2017, 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
final action concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq. and 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 action.

ISSUES PRESENTED

The issues presented are: (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly issued a summary judgment decision; and (2) whether the
preponderance of the evidence in the record establishes that Complainant was subjected to
discrimination based on race, sex, and/or disability when he was allegedly denied a reasonable
accommodation and charged AWOL.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse
(RN), II/5, in the Cardiac Intensive Care Unit (CICU) at the Agency’s Durham, North Carolina
VA Medical Center (VAMC) facility. Complainant’s first-line supervisor was the CICU Nurse
Manager (S1).

Complainant is an African-American male. According to Complainant, he was the only African-
American male assigned to any of the three ICU units. Complainant was diagnosed with chronic
intractable migraines, which his neurologist deemed severe. Complainant stated that he takes
medication to manage the migraines. Complainant averred that he is unable to work during a bad
migraine because of severe pain, nausea, mental dulling, limited vision, dizziness, and impaired
motor skills.

In July 2013, Complainant requested reassignment to a RN Telehealth position as a reasonable
accommodation. Complainant’s neurologist stated that the reasonable accommodation was
medically necessary because the stress and intensity of treating patients in the ICU triggered
Complainant’s migraines. On September 25, 2013, the Human Resource Manager (HR1) denied
Complainant’s request for reassignment because there were no vacant RN positions that met
Complainant’s medical restrictions. HR1 stated that the Associate Director of Patient Care (S2)
evaluated Complainant’s medical documentation and determined that Complainant could not
provide direct patient care based on his stated medical restrictions. According to S1, in the interim,
she accommodated Complainant with liberal leave and by rearranging schedules at the last minute
so Complainant could work when he was having a migraine and be off work when he was not
feeling well. In March 2014, Complainant was subsequently reassigned to a RN position in the
office of Non-VA Care Coordination, which did not involve direct patient care. Complainant
averred that the new position is less noisy and less intense, allowing him to work through mild
migraines.

On August 3, 2013, Complainant’s request for Family and Medical Leave Act (FMLA) leave was
approved, retroactive to June 14, 2013. On October 24, 2013, S1 charged Complainant absent
without leave (AWOL). According to Complainant, the AWOL charge was punitive to punish him
for having a disability and was also charged to him because he was the only African-American
male RN in the ICU. As evidence of discrimination, Complainant alleged that S1 and the EEO
Program Manager (EEO1) suggested that he retire and apply for disability benefits. S1 and EEO1
denied suggesting that Complainant retire and apply for disability benefits. Regarding the AWOL
charge, S1 averred that by October 24, 2013, Complainant had exhausted his FMLA leave and the
maximum 30 days of leave without pay (LWOP) that could be approved at the service level. S1
stated that she told Complainant about the process to request additional LWOP but that
Complainant did not follow through to request LWOP for October 24, 2013.

On February 20, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and disability
(chronic intractable migraines) when:
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1. On September 25, 2013, management denied his request for a reasonable
accommodation; and

2. On October 24, 2013, management charged him AWOL.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant
timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint
did not warrant a hearing and, over Complainant's objections,2 issued a summary judgment in favor
of the Agency on February 6, 2017. When the Agency failed to issue a final order within forty
days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged became the Agency’s final action
pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that summary judgment should have been granted in his favor.
Complainant argues that he established that he was denied a reasonable accommodation for his
disability and that he was subjected to disparate treatment when he was charged AWOL.
Complainant requests that the Commission rule in his favor or, in the alternative, remand the matter
for a hearing.

In response to Complainant’s appeal, the Agency contends that its final action should be affirmed
because Complainant has failed to identify a genuine issue of material fact or any other basis for
reversing the AJ’s summary judgment decision.

ANALYSIS AND FINDINGS

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

2 On November 2, 2016, the AJ issued a Notice of Intent to Issue Decision without a Hearing and
provided the parties until December 2, 2016, to respond. On December 2, 2016, Complainant
submitted a response, requesting additional time to submit briefs. The AJ did not respond to
Complainant’s request and issued her decision granting summary judgment on February 6, 2017.
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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”).

Summary Judgment

We must determine whether it was appropriate for the AJ to have issued a summary judgment
decision on this record. The Commission’s regulations allow an AJ to issue a summary judgment
decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a summary judgment
decision is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a summary judgment decision only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No.
01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a
hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the
proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for summary
judgment. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for summary judgment).

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Upon review, we find that the AJ appropriately gave the parties an opportunity to respond to her
Notice of Intent to Issue Decision without a Hearing and also appropriately issued a summary
judgment decision because no genuine issue of material fact exists. Accordingly, we will examine
the merits of Complainant’s claims.

Denial of a 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, 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).

While the Rehabilitation Act does not require an employer to create a light duty position as an
accommodation, it does require an employer, absent undue hardship, to accommodate a qualified
individual with a disability by restructuring a position through redistribution of marginal functions
which he cannot perform because of disability, or by reassigning him to an equivalent existing
vacancy for which he is qualified. Williams v. U.S. Postal Serv., EEOC Appeal No. 01973755
(Sept. 11, 2000); Flowers v. U.S. Postal Serv., EEOC Appeal No. 01984878 (Sept. 9, 1999);
Lowery v. U.S. Postal Serv., EEOC Appeal No. 01961852 (Oct. 31, 1997); Ignacio v. U.S. Postal
Serv., EEOC Petition No. 03840005 (Sept. 4, 1984), aff'd, 30 M.S.P.R. 471 (Spec. Pan. Feb. 7,
1986).

Here, Complainant requested a reasonable accommodation consisting of a transfer to a RN
Telehealth position. Although reassignment is an accommodation of last resort, the record does
not indicate that Complainant could have been accommodated in his RN position in the CICU.
However, the preponderance of the evidence in the record does not establish that a Telehealth
vacancy existed, or that there was another vacant RN position that did not involve direct patient
care. Until such a position could be located, the Agency accommodated Complainant with liberal
leave and schedule adjustments so that he could work when he was not having a migraine and
could rest at home when he was having a migraine. Accordingly, we find that the Agency satisfied
its obligation under the Rehabilitation Act.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that he was subjected to discrimination when he was charged AWOL in
October 2013. The Agency’s legitimate, nondiscriminatory reasons for charging Complainant
AWOL were that he had run out of paid leave and FMLA leave, had exhausted the maximum 30
days of LWOP that could be provided by the service, and did not follow the proper procedures for
requesting additional LWOP. We find that Complainant has failed to establish by a preponderance
of the evidence that the Agency’s legitimate, nondiscriminatory reasons are a pretext for
discrimination based on race, sex, and/or disability.

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 action because the AJ’s issuance of
a summary judgment was appropriate and because the preponderance of the evidence does not
establish that discrimination occurred.

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.
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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.

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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 15, 2018
Date