Lynette B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

0120170682 (E.E.O.C. Mar. 8, 2019)

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

Lynette B.,1
Complainant,

v.

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

Appeal No. 0120170682

Agency No. 2004-0558-2015104951

DECISION

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 November 22, 2016, 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are whether Complainant proved the Agency improperly subjected her to a
Fitness-for-Duty Examination (FFDE), and whether Complainant proved the Agency subjected
her to unlawful discrimination and harassment because of her disability and age.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Technician
(MT), GS-5, at the Hillandale Clinic, which is affiliated with the VA Medical Center (VAMC) in
Durham, North Carolina. Complainant began working in this position in April 2015, and she was
supervised by the Nurse Manager (S1).

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.
0120170682

2
In this position, Complainant mainly collected and labeled patient blood and other specimens for
complex laboratory testing and diagnosis. Prior to April 2015, Complainant worked as a Nursing
Assistant at the Durham VAMC.

On February 18, 2015, Complainant experienced a grand mal or generalized tonic-clonic seizure
for the first time. In a letter to the Agency dated March 2, 2015, Complainant’s physician reported
that Complainant was unable to drive, and therefore, was unable to work until she was cleared to
drive. On April 6, 2015, Complainant accepted an appointment to the Medical
Technician/Phlebotomist position, after she requested a position that would not cause fatigue or
stress. On April 19, 2015, Complainant had another seizure. Complainant’s physician reported
that the seizures were caused by stress and fatigue and were a permanent condition. After a five-
week absence, Complainant returned to work on May 25, 2015.

Upon her return to work, coworkers and S1 reported that Complainant left a needle in a veteran
patient’s arm after drawing blood; packed labs in the refrigerator but failed to load them all into
the transport box; failed to spin down labs before transport to the main lab; disposed used needles
in the regular trash instead of the needle box; displayed difficulty in placing the right label with
the right color tube top; displayed confusion about what labs to pour off and what labs to freeze;
and was unable to follow more than simple one or two-step instructions.

On June 2, 2015, the Agency temporarily detailed Complainant to administrative duties in the
Nursing Education office, and on June 17, 2015, ordered her to undergo a FFDE. Complainant
provided the Agency with pertinent medical records from her medical providers, which were
reviewed by Agency physicians, who met with Complainant on August 7, 2015. During the
meeting, Complainant denied leaving a needle in a patient’s arm and reported that a needle fell
into a trashcan at her phlebotomy station. The physicians reported that because of “recent new
onset seizure activity,” Complainant was sent for neuropsychology testing with a clinical
psychologist on November 5, 2015. The clinical psychologist reported that Complainant’s test
results suggested deficits in several cognitive domains, including deficits in verbal learning and
memory.

The clinical psychologist further reported that these deficits would likely lead to difficulties in
contexts wherein Complainant is provided verbal training in novel tasks and procedures, and that
she appeared to have difficulty sustaining attention over time and with adjusting to speed changes
in response to task demands. The clinical psychologist opined that these difficulties could be
concerning in a setting that requires her to sustain attention over time while performing varying
tasks, and given her difficulties with learning, memory, problem-solving, and sustained attention,
Complainant would likely benefit from close oversight of her duties during the initial training
period, as well as additional visual aids and cues.

In a report dated January 15, 2016, Agency physicians concluded that a dynamic environment
could be problematic for Complainant and recommended that she not return to her MT position
because of the complexities of the job and the dynamic environment of the phlebotomy lab.
0120170682

3
In a letter dated February 10, 2016, the Agency issued Complainant a Notice of Proposed Removal
on the basis that she was unable to perform the duties of her position. The Agency removed
Complainant effective March 31, 2016.

On November 19, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability and age (born in 1961) when:
1. When, on June 2, 2015, the Agency reassigned her and on June 17, 2015, required
her to submit to an FFDE; and

2. The Agency subjected her to harassment when it when it required her to submit to
the FFDE and reassigned her.

In an investigative interview, Complainant stated that she originally worked as an MT from 8:00
a.m. until 4:30 p.m., but when she returned to work on May 26, 2015 after a seizure, S1 told her
she was being reassigned because she was afraid Complainant would pose a threat to veterans.
Complainant stated that after she was reassigned, she folded isolation gowns and performed
administrative duties under the Head of Nursing Education. Complainant stated that she believed
her former Nurse Manager, or a coworker, may have told S1 that she had a seizure.

Complainant further stated that on June 17, 2015, S1 informed her that she must undergo a FFDE.
Complainant stated that her neurologist’s nurse practitioner examined her for the FFDE, but the
Agency responded that she had to be examined by a doctor. In response to the claim that
Complainant left a needle in the arm of a veteran from whom she drew blood, Complainant said
this did not occur. Regarding the claim that she did not send lab specimens in the transport box,
Complainant stated that she told S1 that she had left the specimens in the refrigerator. In response
to the claim that she threw used needles into the regular trash can, Complainant stated that she did
this on one occasion, but she retrieved it within seconds. Complainant stated that she had memory
issues the first week after her seizure, but she was “fine” when she returned to work. She stated
that she requested a reasonable accommodation two weeks before her investigative interview and
had applied for disability retirement.2

After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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 unlawful
discrimination or harassment, or that she was improperly subjected to a FFDE in violation of the
Rehabilitation Act.

2 Complainant’s interview occurred on March 22, 2016.
0120170682

4
CONTENTIONS ON APPEAL

Complainant does not present any arguments on appeal, and the Agency requests that we affirm
its final decision.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Fitness-for-Duty Examination (FFDE)

Employers may require a medical examination or make disability-related inquiries of an employee
only if the examination is job-related and consistent with business necessity. See Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act (ADA) (July 27, 2000) (Guidance), at 5. This requirement is met
when the employer has a reasonable belief, based on objective evidence, that: (1) an employee’s
ability to perform the essential job functions is impaired by a medical condition; or (2) that an
employee poses a direct threat due to a medical condition. See Guidance at 14.

This means that the employer must have a reasonable belief based on objective evidence that an
employee will be unable to perform the essential functions of his/her job because of a medical
condition. Objective evidence is reliable information, either directly observed or provided by a
credible third party, that an employee may have or has a medical condition that will interfere with
his/her ability to perform essential job functions or will result in a direct threat. Id., p. 7. Where
the employer forms such a belief, its disability-related inquiries and medical examinations are job-
related and consistent with business necessity, if they seek only the information necessary to
determine whether the employee can perform the essential functions or work without posing a
direct threat to self or others. Id. It is the burden of the employer to show that its disability-related
inquiries and requests for medical examination are job-related and consistent with business
necessity. See Cerge v. Dep't of Homeland Security, EEOC Appeal No. 0120060363 (Oct. 9,
2007).

0120170682

5
In this case, Complainant’s MT position mainly involved collecting and labeling patient blood and
other specimens for complex laboratory testing and diagnosis. We determine that the Agency
demonstrated that its decision to require Complainant to undergo a FFDE was “job-related and
consistent with business necessity” because it was based on objective evidence that Complainant
could not perform the essential functions of her position because of an impairment.

Specifically, two coworkers and S1 reported that, after Complainant returned to work following
her seizures, they observed Complainant leave a needle in a veteran patient’s arm after drawing
blood; failing to load all labs into the transport box; disposing used needles in the regular trash
instead of the needle box; displaying difficulty in placing the right label with the right color tube
top; displaying confusion about what labs to pour off and what labs to freeze; and exhibiting an
inability to follow more than simple one or two-step instructions. Additionally, S1 observed that
Complainant drove to work in violation of doctor’s orders. Thus, we affirm the Agency’s finding
that its request for the FFDE was job-related and consistent with business necessity and did not
violate the Rehabilitation Act. See Buster D. v. U.S. Postal Serv., EEOC Appeal No. 0120151128
(July 6, 2017) (FFDE did not violate Rehabilitation Act where Postmaster observed complainant’s
ability to perform his duties began to deteriorate after he returned to work following a seizure).

Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, Complainant must show that: (1)
she belongs to a 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)
0120170682

6
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

In this case, we assume arguendo that Complainant established a prima facie case of
discrimination. Nevertheless, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, S1 stated that Complainant was directed to undergo an FFDE
because she left a needle in a veteran’s arm, which was noticed by her preceptor (C1),3 who
removed the needle and disposed of it properly. S1 stated that Complainant was also directed to
undergo an FFDE because she received a call from personnel at the Medical Center that indicated
that Complainant had loaded a transportation box but left some of the specimens in the refrigerator.

Further, S1 stated that on May 28, 2015, she received a call from personnel at the Medical Center
informing her that six of the specimens that they had received had not been properly “spun down”
and that the manifest sheet was inaccurate for the labs that were included in the box. S1 also
stated that C1 expressed concerns that Complainant was extremely forgetful and could not follow
simple instructions. Additionally, S1 stated that on two occasions, Complainant threw used
needles into the regular trash instead of disposing them in the Sharps Container, and she incorrectly
placed a lab specimen in a plasma tube that was supposed to be frozen.

S1 further stated that after C1 and another employee (C2) reported several incidents involving
Complainant, she contacted the Medical Center and attempted to schedule Complainant for
additional training, but the training was cancelled after Complainant had another seizure. S1 also
testified that Complainant admitted to leaving the needle in the patient’s arm, throwing needles in
a trash can, and improperly packing lab specimens. S1 noted that after Complainant returned to
work five weeks after her second seizure, she was instructed not to drive (by her physician), yet
drove herself to work, placing veterans, herself, and employees in danger. S1 also stated that C1
and C2 informed her that Complainant could not recall the information she had learned the prior
weeks. S1 stated she then informed Complainant that, due to several safety concerns, she was
being reassigned to the Medical Center until she completed an FFDE.

S1 testified that Complainant’s tour of duty was not changed. She stated that during her job
interview (for MT), Complainant was told that Hillandale’s hours of operation are 7:00 a.m. to
4:30 p.m., and tours of duty are eight hours and could range from 7:00 a.m. to 6:00 p.m., Monday
through Friday. She stated that Complainant was hired for the 8:00 a.m. to 4:30 p.m. shift.

In an attempt to prove pretext, Complainant denied leaving a needle in a patient’s arm. However,
it is undisputed that two coworkers made this allegation. Further, Complainant does not rebut
management’s assertion that coworkers reported that Complainant could not recall information
she had recently learned. Moreover, while Complainant maintains that she told S1 that she left
specimens in the refrigerator, she does not rebut the Agency’s contention that she should have
known this was improper procedure. Additionally, Complainant acknowledges that she drove to
work against her physician’s orders.

3 C1 was responsible for training and orienting Complainant.
0120170682

7

After a thorough review of the record, we determine that Complainant did not prove that the
Agency’s nondiscriminatory explanations for its actions are pretext for unlawful discrimination.
In so finding, we note that in a letter dated September 22, 2015, Complainant’s physician informed
the Agency that she could not return to her previous position at Hillandale because of medical
issues. There is simply no evidence that the Agency’s actions were motivated by animus against
Complainant’s disability or age. Thus, we conclude that the Agency properly found that
Complainant did not prove she was subjected to unlawful discrimination or harassment. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision
finding that Complainant did not establish that she was subjected to discrimination or harassment
as alleged.

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. 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.
0120170682

8
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. 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

March 08, 2019
Date