Derrick T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

0120172486 (E.E.O.C. Feb. 6, 2019)

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

Derrick T.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172486

Agency No. 200I06142015105408

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 13, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Sterilization and Processing Service (SPS)
Technician, GS-6 at the Agency’s Memphis VA Medical Center in Memphis, Tennessee.

On December 24, 2015, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected him to discrimination and a hostile work environment based on his sex
(male), disability, and in reprisal for prior protected EEO activity when:

1. since April 2015 and most recently on September 1, 2015, Complainant’s requests
to work overtime were denied;

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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2. on September 14, 2015, Complainant’s tour of duty was changed from 4:00pm –
12:00am, to 7:00am – 3:00pm;

3. from September 14, 2015 and ongoing, Complainant has been charged AWOL;

4. on December 16, 2015, Complainant’s supervisor responded to his request for a
reasonable accommodation that she did not have any reasonable accommodation
documents for him and that he needed to follow orders and do what he is told to
do;

5. on December 16, 2015, Complainant’s requested reasonable accommodation was
denied.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant
requested a final decision.

On June 13, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.2

The instant appeal followed. On appeal, Complainant argues that his supervisors never
responded to his verbal or written requests for a reasonable accommodation. Complainant
argues that his supervisors never forwarded his reasonable accommodation request to the Local
Reasonable Accommodation Coordinator and did not follow the proper procedures with
processing his reasonable accommodation request. Complainant further argues that the Agency
did not provide him with information on the same day that he submitted his request, and
Complainant denies that he was involved in the “breakdown of interaction.” Complainant
maintains that the Agency “was not transparent on the information that they needed for [him] to
proceed with the process.” Complainant submits email correspondence and medical
documentation that has already been included in the record.

ANALYSIS AND FINDINGS

Reasonable Accommodation: Claim 5

To establish that Complainant was denied a reasonable accommodation, Complainant must show
that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
“qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency
failed to provide him with a reasonable accommodation.

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct.
17, 2002). A qualified person with a disability is an individual who can perform the essential
functions of the position with or without an accommodation.

Complainant testified that he injured his ankle in 2002 while serving in the military.
Complainant explained that he has stress fractures in his ankle and he has bone spurs status post-
surgery.

The record contains email correspondence, dated December 15, 2015, from Complainant to his
immediate supervisor (“S1”) (female; no disability). This email indicates that Complainant
reinjured his ankle at work on December 10, 2015, and allegedly verbally requested from S1 a
reasonable accommodation on the day of his injury.

The record includes a copy of Complainant’s written reasonable accommodation request, which
was completed on December 16, 2015. The request indicates that Complainant requested a
“modified work schedule from 12 pm until 8 pm [with] no excessive standing” due to “swelling
of joints and joint pain in early morning hours.” The request also explains that Complainant had
a recent injury and associated pain which required an immediate accommodation because the
injury affects his ability to complete his job.

Complainant stated in an email, dated December 16, 2015, that he submitted his written
reasonable accommodation request to S1 and his second-line supervisor (“S2”) (female; has
disability) on December 16, 2015.

A Human Resources Specialist (“HR Specialist”) emailed Complainant on December 16, 2015,
informing that he needed to provide a physician’s statement identifying “the diagnosis, prognosis
and any relative issue (limitations)” to support a request for “a modified work schedule based on
excessive standing.” Specifically, the HR Specialist requested that the physician’s statement
include information regarding the following matters: the duration of Complainant’s disability,
the time period Complainant would be able to stand and whether he could resume standing after
periodic breaks, the reasons that Complainant’s swelling only has an impact in mornings,
specific requirements needed for Complainant to complete his job, and how swelling in the joints
relates to Complainant’s disability. The HR Specialist stated that this information was
important, as it would enable the Local Reasonable Accommodation Coordinator (“LRAC”) to
determined Complainant’s limitations.

The record includes a January 7, 2016 email from the LRAC requesting that Complainant submit
reasonable accommodation request forms which included a Request for Medical Documentation
from Complainant’s physician indicating the “nature, severity, and duration of the impairment
and the duties [Complainant] is unable to perform.”

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In a January 14, 2016 correspondence, the LRAC confirms, in response to Complainant’s
inquiry, that she had not received an Acknowledgment of Receipt of Request from
Complainant’s supervisors (S1 and S2). The LRAC also informed Complainant that, “I’m not
waiting for a request for an R.A. from your supervisor, I’m awaiting your medical
documentation to move forward with your request for an RA.”

The record also includes a January 22, 2016 and a January 28, 2016 Request for Medical
Documentation form completed and signed by Complainant’s physicians. The January 22, 2016
form states that Complainant is unable to perform his duties due to a “hostile work environment”
that has “created fear and anxiety causing difficulties across tasks.” The form also states that
Complainant has felt “harassed and unfairly treated” since April 2015 when he was “banned
from overtime.” The form further states that “a move to another department will eliminate the
hostile work environment and allow [Complainant] to perform his to his full capacity.”

The January 28, 2016 Request for Medical Documentation form states that Complainant has
requested “adjustment of work schedule to 12:00 noon to 8:00 pm.” The form indicates that
Complainant had right ankle swelling, moderate pain that was worse in the mornings, and
Complainant’s walking and standing is limited. The physician indicates “n/a” in the field
requesting key duties Complainant has indicated that he is unable to perform because of his
condition.

The LRAC testified that Complainant needed to submit additional information regarding his
medical condition, but failed to do so. The LRAC clarified that Complainant’s reasonable
accommodation request was never denied because the documentation necessary to determine
Complainant’s limitation was never submitted.

Based on this evidence, it appears that Complainant’s supervisors did not follow Agency
guidance with documenting Complainant’s reasonable accommodation request. Specifically, in
accordance with the Agency handbook, the direct management official who receives a
reasonable accommodation request is required to complete and submit an Acknowledgement of
Receipt of Request to the requestor and to the LRAC. The January 14, 2016 email indicates that
S1 and S2 did not follow this procedure. Supervisors should adhere to the procedures for
documenting reasonable accommodation requests. However, this failure to follow procedure
alone does not support a finding that the Agency failed to provide a reasonable accommodation.
We note that Complainant must first establish that he is a qualified individual with a disability
and, as the LRAC indicated in the January 14, 2016 email indicated, Complainant had not
submitted the necessary medical documentation to determine his limitations.

Our review of the record further notes the inadequacy of the medical documentation
Complainant subsequently submitted. The January 22, 2016 Request for Medical Documentation
is unrelated to the condition Complainant provides in the December 16, 2015 reasonable
accommodation request. The January 28, 2016 Request for Medical Documentation mentions
Complainant’s ankle injury, but fails to specify the specific duties Complainant is unable to
complete because of this condition.
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Additionally, the form does not explain why Complainant’s condition is only impacted during
the morning hours. In short, this form fails to address the medical documentation specification
requirements outlined in the HR Specialist’s December 16, 2015 email.

The evidence in the record supports that the Agency never denied Complainant’s reasonable
accommodation request because Complainant failed to submit necessary information required for
the Agency to make an appropriate determination on his request. Therefore, Complainant has
not established a violation of the Rehabilitation Act.

Disparate Treatment: Claims 1, 2, and 3

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding claim 1, S2 explained that Complainant’s overtime work requests were denied
because of Complainant’s attendance problems. S2 stated that there were “periods where he
[Complainant] was not available or not present – and could not be accounted for.” S2 further
stated that overtime is not an entitlement and she would schedule overtime for employees “based
on who would be reliable to come in and work.”

S1 explained that she began supervising Complaining on October 9, 2015, and the management
official responsible for denying Complainant’s overtime no longer works at the agency.
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To S1’s understanding, Complainant was denied overtime because he would come in to work
and leave and “[n]o one kn[ew] where he [was].”

Regarding claim 2, S1 explained that Complainant’s tour of duty was changed for
“accountability” because Complainant would leave the work place and no one knew where he
went. S1 further explained that changes in tours of duty are at management’s discretion and
noted that her tour of duty was also changed because coverage was needed for both shifts.

S2 stated that Complainant was provided a 30-day notice regarding the change in his tour of duty
for a period of six months at which point Complainant’s job performance would be evaluated.
S2 further stated the Complainant’s tour was changed “because of accountability, leaving his
place of employment, and not performing his duties.” S2 explained that the change to the 7:30
am to 4:00 pm tour of duty permitted “more supervision available to account for [Complainant’s]
time.”

The record includes a notice, dated August 14, 2015, informing Complainant that his tour of duty
would change effective September 14, 2015. The notice states that Complainant’s tour of duty
was being changed due to Complainant’s failure to maintain his assigned work schedule, his
failure to complete daily assignment, and his tardiness. The notice further provides that
Complainant would be “re-evaluated in 6 months to determine [his] ability to perform duties
assigned on [his] regular off tour.”

Regarding claim 3, S2 stated that Complainant stopped coming into work when his tour of duty
changed beginning on September 14, 2015, and he was charged AWOL. S2 explained that
Complainant signed up for annual leave from September 14 through September 26, 2015, but
Complainant did not enter the leave requests for these days until November 2015 or December
2015. S2 further explained, from September 28 through November 7, 2015, Complainant did
not report for duty. S2 acknowledged that during this time, Complainant could use annual leave
to attend nursing school. However, Complainant failed to submit his school schedule as
required, he was inconsistent with coming to work after his classes, and he was inconsistent with
submitting his leave.

S1 testified that Complainant would not call in when absent from work. S1 explained that
Complainant was required to notify his supervisor of his absence two hours after the start of his
tour of duty, but Complainant failed to do so.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on his sex,
disability, and reprisal for prior protected EEO activity.

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Hostile Work Environment: Claims 1, 2, and 3

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected basis – in this case his sex, disability, and
reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements
– hostility and motive – will the question of Agency liability present itself. Here, as discussed
below, Complainant simply has provided inadequate evidence to support his claim that his
treatment was the result of his sex, disability, and reprisal for prior protected EEO activity.

As discussed above, we found that Complainant did not establish, with respect to claims 1, 2, and
3 a case of discrimination on any of his alleged bases. Further, we conclude that a case of
harassment is precluded for these claims based on our finding that Complainant failed to
establish that any of the actions taken by the agency were motivated by his protected bases. See
Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Hostile Work Environment: Claim 4

As already noted, to establish a claim of harassment, Complainant must show that: (1) she is a
member of the statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Service,
EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of [Complainant's]
employment and create an abusive working environment.” Harris, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires
careful consideration of the social context in which particular behavior occurs and is experienced
by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-
discrimination laws are not a “general civility code.” Id.
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We find that remaining claim 4 also fails to support a finding that the Agency subjected
Complainant to discriminatory harassment.

S1 explained that she informed Complainant that she did not have a record of Complainant’s
reasonable accommodation. The record includes a December 15, 2015 email from S1 to
Complainant stating, “You told me you’re on reasonable accommodation. I told you that I didn’t
have a record of your reasonable accommodation. You are required to follow order and you’re
failing to do so.”

We find that when considering this claim, even if true, Complainant has not shown evidence that
considerations of his sex, disability, or retaliatory animus motivated management’s actions
toward Complainant. The record indicates that S1 informed Complainant that she did not have a
reasonable accommodation on file for him and requested that he follow her instructions. We
further find that the isolated incident Complainant alleges is not sufficiently severe or pervasive
as to constitute hostile work environment/harassment under Commission regulation. The
incident involved is of a type that typically arise out of workplace conflicts or communications.
However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively
offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81
(1998). After careful review of the record, including Complainant's contentions on appeal, we
find that Complainant failed to demonstrate that the Agency discriminated against him as
alleged.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
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.
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.
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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. The
court has the sole discretion to grant or deny these types of requests.

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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

February 6, 2019
Date