0120122978
09-19-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122978
Hearing No. 520-2011-0018X
Agency No. 200H-0523-2010101159
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 13, 2012, 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 which fully implemented the EEOC's Administrative Judge's (AJ) finding of no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Resident at the Agency's VA Boston Health Care System South Shore Psychiatry Residency Program in Boston, Massachusetts. The record reveals that Complainant applied for a residency with the Agency after unsuccessfully participated in a residency at another hospital. Complainant was accepted for the residency but it was decided that in order to ensure his success, because he had been diagnosed with sleep apnea, ADHD and Post Traumatic Syndrome Disorder (PTSD), Complainant would have a smaller case load than the other residents. Soon thereafter, on January 22, 2009, Complainant was placed on probation for unprofessionalism as a result of conflicts with three coworkers. Complainant's work issues continued with him failing his oral examination and having another conflict with another doctor. Therefore, on June 29, 2009, he was placed on probation again. Complainant thereafter, requested that he be allowed to take the summer off so that he could attend to his medical issues. He also asked if he could enter into mediation with the doctor that he had the conflict with. The Agency approved both requests.
When Complainant returned he started a rotation at the Children's Hospital. Complainant received an unfavorable review from several of his supervising physicians. It was reported that Complainant's patient care at the Children's Hospital was below standard, and dangerous. On November 24, 2009, Complainant formally requested a reasonable accommodation. Complainant was asked to submit medical documentation to support his request. Complainant failed to provide the requested information, and as a result his request for was denied. On February 25, 2012, Complainant's termination was proposed for failing a rotation while on academic probation and failing to meet the standards of professionalism of a fourth year resident. The Resident Review Board, which was made up of neutral and experienced doctors, made the recommendation to the Director of the program that Complainant be removed.
On February 12, 2010, Complainant filed a formal complaint alleging that he was subjected to harassment and discrimination on the basis of disability (mental) when:
1. He was placed on probation;
2. He was denied a reasonable accommodation;
3. He was terminated from his position; and
4. He was subjected to a hostile work environment which included belittlement, being placed on probations, lack of supervision, disclosing of confidential health information, failing to receive any written feedback which would have warned him of deficits in his professionalism, receiving a negative review from Children's Hospital, his request for reasonable accommodation was denied, and he was terminated.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. A hearing was held on December 6, 2011, and March 12, 2012. The AJ found that, assuming arguendo that Complainant established a prima facie case of disability discrimination, and that he was a qualified individual with a disability, the evidence supported the Agency's argument that it articulated legitimate, nondiscriminatory reasons for its actions. The AJ found that Complainant was placed on probation twice for his unprofessional behavior with his coworkers. Complainant's formal request for reasonable accommodation was denied because he failed to provide the requested medical documentation and his request for reconsideration was denied because the decision to terminate Complainant had already been made. The AJ noted that Complainant's reasonable accommodation request effectively asked that his prior misconduct be excused because of his disability and that he be allowed to continue his residence with regular supervision. The AJ found that the Commission has long held that reasonable accommodation is always prospective, as an employer is not required to excuse past misconduct even if it was the result of the individual's disability. Notwithstanding, the AJ determined that the Agency reasonably accommodated Complainant even though it denied his formal request. The AJ noted that Complainant was not credible with regard to his testimony and was at many times inconsistent. However, with regard to the accommodation, the testimony showed that the Agency had given Complainant a smaller case load, had allowed him to take the summer off to pursue treatment, and had allowed him to enter into mediation with the doctor that he insulted.
Further, with regard to Complainant's termination, the AJ again found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant had been placed on probation twice and while doing his rotation at the Children's Hospital, many problems including those that put the health and welfare of children at risk. The AJ noted that while Complainant argued that his conduct did not warrant termination from the Residence program, he did not deny that a number of the incidents upon which the termination was based did not take place as the Agency described. The AJ found that Complainant simply felt that despite the fact that he failed to meet the performance standards of the Residency program he should be allowed to continue with the program without having met the residency standards because of his disability.
The Commission however has long held that the Agency is not required under the Rehabilitation Act to lower the performance standards of a position to accommodate an individual with a disability. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. � 1630.2(n) (July 1, 2000); see also Enforcement Guidance, at General Principles; Olson v. Department of Treasury, EEOC Appeal No. 01983200 (July 19, 2001; Graziano v Department of the Navy, EEOC Agency Appeal No. 0120070745 (April 15, 2009). The AJ determined that Complainant failed to show that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, the AJ found that Complainant had failed to show that he was subjected to discrimination or denied a reasonable accommodation.
As to the harassment/hostile work environment claim, the AJ indicated that a finding that Complainant was subjected to hostile work environment discrimination was precluded by the determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S, Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONTENTIONS ON APPEAL
On appeal, Complainant contends among other things that the actions taken by the Agency were because of his disability. Complainant maintains that the Agency failed to provide a reasonable accommodation. He contends that because the Agency already knew about his disability he should not have been required to provide medical documentation. Complainant contends that he signed a release allowing the Agency to speak to his psychiatrist so the Agency had access to his documentation. Complainant asserts that his recommendation for reasonable accommodations included regular supervision, at least weekly, with a senior clinician whom he trusted, additional supervision if his performance was seen waning, and a venue to discuss work place issues and relationships without fear of retaliation.
Complainant also argues that Children's Hospital failed to meet the minimum requirements of the Accreditation Council for Graduate Medical Education, in that he was not provided consistent "off-line" supervision. Further, Complainant maintains that he was never timely and appropriately notified that his performance was failing and why. He contends that non-disabled residents were treated more favorably and he maintains that the Agency treated him with indifference.
ANALYSIS AND FINDINGS
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 final Agency order. We find the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by substantial evidence in the record. Further, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has provided no persuasive evidence which shows that the AJ's decision was incorrect or that discriminatory animus was involved in this case. Therefore, the Agency's final order finding no discrimination is AFFIRMED.
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 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
Office of Federal Operations
__9/19/14_________
Date
2
0120122978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122978