Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 2, 2015

01-2012-3257-0500 (E.E.O.C. Sep. 2, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120123257

Hearing No. 530-2011-00192X

Agency No. 200H06932010104946

DECISION
Complainant filed an appeal from the Agency’s August 27, 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 VACATES the Agency’s
Final Order finding no discrimination and REMANDS the complaint to the Agency for a
supplemental investigation.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer
at the Agency’s Veterans Affairs Medical Center facility in Wilkes-Barre, Pennsylvania. On
November 5, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (cardiovascular) when:

On September 21, 2010, Complainant’s request for an accommodation to attend
mandatory training was denied.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the
AJ held a hearing on April 25, 2012. The AJ issued a decision on July 16, 2012.
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In her Decision, the AJ found that Complainant established that he is a qualified individual
with a disability. The AJ considered that Complainant’s physician had restricted Complainant
from traveling outside of the Wilkes-Barre, Pennsylvania area because of his cardiovascular
condition.

The AJ found that Complainant was directed to attend project management training scheduled
to be held in various locations around the country with the closest locations to Complainant’s
duty station being Washington, D.C., and Boston, Massachusetts. Complainant, the AJ noted,
requested an accommodation, noting that his travel was restricted to the local area by his
physician. The AJ found that, despite his medical restrictions, Complainant traveled to
Philadelphia to pick up his child at college and to the New Jersey shore for vacation in August
2010. The AJ found that because Complainant could travel freely to locations outside the
Wilkes-Barre area for his personal activities in violation of his medical restrictions, he was not
entitled to an accommodation for training. The Agency subsequently issued a Final Order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
A “qualified individual with a disability” is an individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
positions such individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R. §1630.2(m).
Essential functions may be thought of as the outcomes that must be achieved by someone in
that position. See Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053 (July
10, 2014); Ta v. U.S. Postal Serv

., EEOC Appeal No. 0120080613 (Dec. 23, 2013).
Once a complainant has demonstrated that he is a qualified individual with a disability, a
complainant must then establish that the Agency failed to provide a reasonable accommodation.
A reasonable accommodation is a modification or adjustment to the work environment that
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enables a qualified individual with a disability to perform the essential functions of that
position. See Reasonable Accommodation Guidance. After receiving a request for reasonable
accommodation, the employer and the individual with a disability should engage in an informal
process to clarify what the individual needs and identify the appropriate reasonable
accommodation. Id. The duty to provide reasonable accommodation is an ongoing one.

Id.
In the instant case, we note that Complainant presented medical documentation to the Agency
confirming that he suffers from cardiovascular disease for which his physician restricted
Complainant’s travel to the local commuting area around Wilkes-Barre, Pennsylvania.

We further find that Complainant stated he traveled to Philadelphia, which is outside of the
local commuting area for purposes of picking his son up from school, and also traveled for
vacation to Wildwood, New Jersey, which location is also outside of the Scranton/Wilkes-
Barre local commuting area. The record shows that Complainant was confident that he could
obtain any necessary emergency medical treatment in either location.

That Complainant chose, for personal activities, to travel outside of the area to which he was
restricted by his physician we find is a different question than whether Complainant could be
compelled by his employer to violate those same restrictions. We find the objective evidence
does not indicate that the Agency ever provided Complainant with its reasoning for denying his
request for accommodations.

At the hearing, the Agency’s Chief of Human Resources explained the following policy
requirements of the Agency’s reasonable accommodation request process and her actions with
respect to Complainant’s request:

Q. Could you turn to page 8 again? Could you look at H, denial of the request
for reasonable accommodation? Could you read, please, the first paragraph?

A. The decision to deny a request for reasonable accommodation shall be
communicated to the requestor in writing by the chief of human resource services. The
reason for denial will be in plain English and set forth with as much specificity as
possible.

. . . .

Q. Did you present [Complainant] with a written denial of his request for
reasonable accommodation with the required notices and –

A. I don’t recall me specifically doing it, but I also don’t believe [the Reasonable
Accommodation Committee] submitted anything because they did not consider it a
reasonable accommodation.

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Q. And that information had to be transmitted to him somehow, did it not? Did
anyone in your office or did you inform him that this was not a reasonable
accommodation?

A. I specifically did not.

Q. Do you know if anybody did?

A. Other than his supervisor and the service chief, I don't know.

Q. So certainly if there was a denial of a request for reasonable accommodation,
this is very clear that you would have to issue a written request -- a written
denial response with his appeal rights attached; is that not correct?

A. Yes.

Q. Have you ever done one of these, this denial of a request for a reasonable
accommodation?

A. No.

Complainant v. Dep’t of Veterans Affairs

, EEOC Hearing 530-2011-00192X (April 25, 2012),
Hearing Transcript at 139 - 140.
We find that the Agency failed to engage in the interactive process following Complainant’s
request for accommodation. We find it unclear whether the Agency determined Complainant
was a qualified individual with a disability and if it did so, we find the Agency did not consider
what accommodations, if any, the Agency would have been able to provide him. From the
testimony of the Chief of Human Resources, we conclude that the Agency failed to follow its
own policy when it did not provide Complainant with a written, plain English explanation for
denying the accommodations Complainant sought.

We find that because the accommodation was not granted, Complainant and others (his
supervisor, for example) concluded his request for accommodation was denied. Complainant
did not attend the project management training in fiscal year 2010. Consistent with the Chief
of Human Resource’s testimony, the record shows that Complainant was not provided with any
written reasons for the Agency’s decision to deny his request for accommodation and was not
furnished with an explanation of his rights to challenge that decision or to suggest alternative
accommodations. Complainant was, however, told that the identified training was not an
essential function of his position, notwithstanding that requests for reasonable accommodations
apply to the terms, privileges, and benefits of employment (such as training) to which all
employees, with and without disabilities, are entitled by virtue of the positions they encumber.

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Under the circumstances, we find it appropriate to vacate the Agency’s Final Order and
remand the complaint to the Agency for a supplemental investigation with respect to whether
the Agency could have properly denied the requested accommodation because of an undue
burden on the Agency (which was not addressed at hearing). In doing so, we make no finding
regarding whether the training would violate Complainant’s documented medical restrictions,
whether the Agency would face an undue burden to provide any specific accommodation, or
whether Complainant is a qualified individual with a disability.

CONCLUSION
Based on a thorough review of the record we VACATE the Agency’s Final Order. We
REMAND the complaint to the Agency for further action as ordered herein.

ORDER
The Agency shall take the following actions within 90 days of the date this decision becomes
final:

1. The Agency shall conduct a supplemental investigation as to whether providing an
accommodation to Complainant would have been an undue hardship on the Agency.

2. The Agency shall provide Complainant an opportunity to respond to the supplemental
investigation.

3. The Agency shall issue a new final agency decision regarding the complaint.

Copies of the completed supplemental investigation and the new final agency decision must be
submitted to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission's order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. §
1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
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on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See

29 C.F.R.
§1614.409.

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

(R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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
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local office, facility or department in which you work. 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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 2, 2015
Date