Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120114264 (E.E.O.C. Apr. 23, 2014)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120114264

Hearing No. 570-2010-00402X

Agency No. ARWRAMC09MAY01998

DECISION
On September 13, 2011, Complainant filed an appeal from the Agency’s August 11, 2011 final
order concerning her 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 deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Nurse
(Clinical/Pediatric) YH-0610-02 at the Walter Reed Army Medical Center in Washington, DC.
On June 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability when she was removed from her position during her
probationary period.

The Agency accepted the complaint and conducted an investigation. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint was appropriate for summary judgment and over Complainant's objections,
issued a decision without a hearing. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. From that order, Complainant brings the instant appeal.

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ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing 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. For the reasons set forth below, we find that summary judgment was
appropriate here.
Disparate Treatment Discrimination

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). She must generally establish a prima facie case by demonstrating that she
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 where 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). 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).
In this case, the Agency explains that Complainant was removed from her position because of
her refusal to work rotating shifts as her position required. In addition, the Agency cited
specific performance problems as grounds for removal, including tardiness; repeated failure to
observe established procedures for unscheduled leave; making a false time record entry; and
failure to make regular entries into the Agency’s computerized time management system.
These are legitimate, nondiscriminatory reasons for the Agency’s action.

In her brief on appeal, Complainant does not dispute that she committed each of the acts or
omissions attributed to her by the Agency as grounds for her removal. However, in several
instances she asserts that the acts were excusable. For example, she argues that her making a
false entry in her time records was the result of “human error.” Report of Investigation (ROI),
Transcript at 38. Accepting this as true, it would not establish that the Agency’s reason for its
action was a pretext designed to conceal discriminatory animus because the reason for the
Agency’s actions has not been shown to be untrue. Similarly, with respect to her admitted
failure to make regular entries into the computerized time-management system, Complainant
seeks to explain her behavior by claiming that she had problems with her username and
password which prevented her from making regular entries into the system. ROI, Transcript at
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41-45. Again, assuming this to be true, it does not prove false the Agency’s explanation for
removing Complainant from her position.

Failure to Provide Reasonable Accommodation

Complainant contends that the Agency was obliged to provide a reasonable accommodation for
her impairments that prevented her from working rotating shifts. The Agency is entitled to
require Complainant to submit medical documentation supporting her claim that she required a
reasonable accommodation. Complainant provided only a single, unelaborated instruction from
a physician that she perform “no rotating shift work.” ROI at 58. This was inadequate to
permit the Agency to perform an individualized analysis of Complainant’s need for a
reasonable accommodation. Complainant failed to produce the additional requested
documentation. Therefore, the Agency's obligation to provide a reasonable accommodation
never arose. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act

, No. 915.002, at Question 6 (revised October 17, 2002);
(“If an individual's disability or need for reasonable accommodation is not obvious, and s/he
refuses to provide the reasonable documentation requested by the employer, then s/he is not
entitled to reasonable accommodation.”)

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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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.
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director Date
April 23, 2014
Office of Federal Operations