Kathie N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 22, 2020

2019003312 (E.E.O.C. Sep. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathie N.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003312 Agency No. 200P-0593-2018100846 DECISION On April 22, 2019, 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 March 21, 2019, final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse/Non-VA Care Coordinator at the Agency’s VA Southern Nevada Health Care System in Las Vegas, Nevada. Complainant reported that she suffers from Post-Traumatic Stress Disorder (PTSD), depression, anxiety and panic attacks. Her PTSD and depression were diagnosed in August 2005 and her anxiety was diagnosed in 2010. As a result of her medical conditions, Complainant stated that she has nightmares, has lost interest in doing things, does not want to go out with friends, suffers from poor memory, and is tired and listless. Complainant also stated that she experienced chest pain during panic attacks. 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. 2019003312 2 Complainant made a written request for accommodation on August 24, 2017, to be able to bring her trained service dog to work with her. Complainant explained that her dog had been scent- trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog, a golden doodle, was trained to alert and calm Complainant before she reached the panic stage. In the process of alerting her to her escalating symptoms, Complainant explained that her dog might bark. Complainant stated that she needed this accommodation because of her continued contact with individuals who had harassed her. Meetings with the Agency’s Reasonable Accommodations Coordinator were held to discuss Complainant’s request. On October 12, 2017, Complainant’s request was approved for a 30-day trial period. A follow-up meeting to discuss the accommodation was scheduled for a month later. Complainant’s second-line (S2) and third-line (S3) supervisors were not directly involved in the interactive process regarding Complainant’s request for accommodation. Management was simply told that Complainant would be bringing her service dog to work as an accommodation. On October 18, 2017, Complainant was called into a meeting in the conference room. Management maintained that the dog repeatedly barked and was disruptive at the meeting. Thereafter, Complainant was told that management was contemplating terminating the interim accommodation on the grounds that the dog was too disruptive in the office. Another meeting was scheduled to discuss the matter. Agency officials asserted that, at this meeting, the dog was even more disruptive, barking and jumping on Complainant, and she appeared unable to control the dog. On appeal, however, Complainant explained that once she was cornered in this meeting the dog sensed that she was going into an anxiety attack and did what she had been trained to do, which was stand in front of Complainant, put her paws on her shoulders and nuzzle her. Complainant maintains that the dog has been on airplanes and in restaurants and always acted appropriately. Following this meeting, Complainant was informed that the interim accommodation was being terminated, and she could not bring the dog back to work because it was disruptive and she could not control it adequately. Management invited Complainant to discuss alternative accommodations, including liberal use of leave when experiencing symptoms, but Complainant maintained that other than having her service dog, she was not able to identify any other useful accommodation. On January 8, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (PTSD, depression, anxiety, and panic attacks) and reprisal for prior protected EEO activity when, on November 8, 2017, a 30-day interim accommodation allowing Complainant to bring her service animal dog to work was revoked.2 2 Complainant originally included a harassment claim in this complaint. In her statement on appeal, however, Complainant affirmatively said she was no longer contesting this claim. Therefore, the harassment claim will not be discussed in this decision. 2019003312 3 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends, among other things, that the accommodation was unreasonably ended after only a few days because of the dog barking at one meeting. Complainant further maintains that management wrongly used the subsequent meeting where they ended the accommodation as further proof that the dog was disruptive and a hardship on the facility. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). 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 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). Here, in its final decision, the Agency has expressly conceded that Complainant is a qualified individual with a disability. Moreover, the record showed that Complainant’s accommodation request to have her service dog allowed in the office was temporarily approved. However, it was soon determined by management that the dog was disruptive to the office because the dog barked and was not sufficiently controlled by Complainant, and the trial accommodation was rescinded. According to S2, Complainant had to leave the meeting on October 18, 2017, after about 30 minutes, because of the dog’s barking. S2 also testified that on other occasions, S2 heard the dog barking in the office. Finally, at the October 24 meeting to discuss the matter, S2 stated the dog barked and jumped up on Complainant and she seemed unable to control the dog. The Agency argues that it had a written policy that provided for the removal of service animals from Agency property if the animal was not adequately under the control of the handler. Under 2019003312 4 this policy, examples of a service animal not being under control are barking not brought under immediate control or the animal jumping on individuals or furniture. The Agency point out that its policy mirrors guidance on service animals issued by the U.S. Department of Justice (DoJ) as part of its implementation of the Americans with Disabilities Act (ADA). The Agency pointed to DoJ guidance that provides that a service animal may be removed from the premises if the animal’s handler does not or cannot take effective action to control it. Here, it is undisputed that because of Complainant’s dog’s training, barking was a possible and, in fact, a probable occurrence in the office. Moreover, management witnesses pointed to occasions where Complainant was unable to stop the dog’s barking. Similarly, it was likely that the dog, when sensing Complainant was becoming anxious, would routinely jump up on her. The Commission has held that a complainant requesting the use of a service dog as an accommodation must establish that the dog is necessary for the performance of the essential duties of his or her position. See Jacques v. United States Postal Service, EEOC Appeal No. 0120071612 (March 8, 2010) (accommodation of a service dog was denied to a complainant with a severe hearing loss where the dog would be confined to the postal vehicle and the complainant failed to identify a need for the presence of the dog to perform his essential job functions); Struthers v. Department of the Navy, EEOC Appeal No. 07A40043 (June 29, 2006), request for reconsideration denied, EEOC Request No. 0520069311 (March 7, 2007) (complainant was not entitled to the accommodation of a service dog where she did not establish a nexus between an alleged inability to interact with coworkers and the request for an assistance dog). In the present case, Complainant has failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing the essential functions of her position. Without more evidence in support of a nexus between the performance of her duties and her request to bring the dog to work, we cannot reasonably conclude that the Agency's decision to terminate its trial approval constitutes an unlawful failure to accommodate her disability in violation of the Rehabilitation Act. Moreover, that record establishes that the Agency offered Complainant an alternative accommodation - the use of annual leave, sick leave, or leave without pay when she felt that she would be stressed or might experience a panic attack. While Complainant maintained that this was not effective, she failed to give any reason why it would not work. The Commission however, has long held that a complainant is entitled to an effective reasonable accommodation, but not necessarily the accommodation of their choice. See 29 C.F.R. § 1630.9; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, at Question 9 (October 17, 2002). CONCLUSION Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to discrimination as alleged. 2019003312 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 2019003312 6 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. 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 September 22, 2020 Date