0120150207
03-08-2017
Anglea R,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anglea R,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150207
Hearing Nos. 410-2011-00304X, 410-2012-00385X
Agency Nos. 2001-0316-2012100167, 2401-0316-2410101099
DECISION
On May 30, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 2, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that she was subjected to disability discrimination and/or reprisal.
ISSUES PRESENTED
The issues presented in this case are whether the AJ erred in finding that the Agency did not provide Complainant with a reasonable accommodation, incorrectly issued her parking tickets, did not select her for two positions for which she applied, and erred in finding that she was not wrongly terminated from her position during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Probationary Veterans Claims Examiner, GS-7 at the Agency's Regional Office in Decatur, Georgia. On January 25, 2010, and January 26, 2012, Complainant filed EEO complaints which were consolidated alleging that the Agency discriminated against her on the bases of disability (back injury) and reprisal for prior protected EEO activity when:
Claim A. Between July 2009 and November 2009, the Unit Chief denied her request for handicapped parking as a reasonable accommodation.
Claim B. On November 5, 2009, and December 11, 2009, she received two additional parking tickets, and a letter of counseling from the Unit Chief for parking in a handicapped space.
Claim C. On December 3, 2009, her supervisor rated her Performance Appraisal as Fully Successful, a lower rating than expected.
Claim D. On December 18, 2010, the facility Director terminated her employment, during her probationary period.
Claim E. She was not selected for the position of Rating Veterans Service Representative, GS-9, Target 10/11/12, Vacancy No. 2009-425-AT, for which she interviewed on September 4, 2010, and to this date she has not been officially notified of her non-selection.
Claim F. On September 23, 2011, she was not selected for the position of Rating Veterans Service Representative (RVSR), GS-9/12, Announcement No. 316-11-191A-RU476438.
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 AJ. Complainant timely requested a hearing and the AJ held a hearing on August 28, 2013, and February 18-19, 2014, and issued a decision on May 2, 2014. The AJ found that Complainant failed to show that she was subjected to discrimination and/or reprisal.
With respect to Claim A, the AJ found that Complainant did not demonstrate that she was denied a reasonable accommodation. He determined that Claim A failed for two reasons, namely, that Complainant did not provide medical documentation to support her request; and Complainant did not show that the use of the shuttle that moved employees from the off-site parking lot to the office exceeded her physical limitations. The AJ found the medical records that Complainant supplied showed that she had a normal gait and did not require an assistance device for ambulation. The AJ indicated that it was undisputed that when the Agency asked for medical documentation to support her request on July 22, 2009, Complainant provided nothing. The AJ determined that Complainant did not participate in the interactive process and tried to bypass the procedure for requesting a reasonable accommodation even though she was aware of the process. The AJ noted that Complainant tried to bypass the process by using an employee's non-transferable parking sticker. Further, the AJ indicated that Complainant was advised to contact Human Resources if she needed help with the reasonable accommodation process but she did not.
With regard to Claim B, the AJ found that Complainant was repeatedly given parking tickets because she continued to park in a restricted area despite being told not to do so. The AJ found that Complainant's insistence that she was entitled to park there by virtue of her status as a disabled veteran, was wrong. The AJ noted that Complainant's status as a veteran did not qualify her as a disabled person under the Rehabilitation Act, nor did it entitle her to the reasonable accommodation of her choice. The AJ found that Complainant presented no comparators who were authorized by Agency management to park in the lot absent membership in a valid carpool or tenured status.
With regard to Claim C, the AJ noted that Complainant did not dispute the fully successful rating but disagreed with the narrative. The AJ found that Complainant did not demonstrate that as of December 3rd, when she received her appraisal, her supervisor had any knowledge of her July 22nd EEO complaint. The AJ indicated that Complainant did not deny making errors but took issue with a lack of notice and opportunity to improve.
The record revealed that the minimum monthly standard was 184 products per month and that Complainant had 96 for the month of August and 132 for the month of September. Additionally, it was determined that Complainant had a large volume of errors. And, as a result of her error rate her work needed to be proofed by a senior reviewer. Thus, it was noted that her high accuracy score was a reflection of the efforts of the senior reviewer, and not Complainant.
Regarding Claim D, the AJ found that the Agency had a choice of either keeping an employee who violated facility policies, ignored explicit instructions as to the proper procedures coupled with performance deficiencies or let her go during her probationary period. The AJ found that for the efficiency of the service, the facility let Complainant go and that this was not related to her disability or reprisal.
The AJ found that, with regard to Claim E, Complainant did not establish that her nonselection was based on disability or prior EEO activity. The AJ noted that Complainant was given an average score for her interview and that nine candidates received lower interview scores than hers. Complainant received the highest score possible for education but every candidate that made the Best Qualified list outranked her in each of the three remaining categories which mathematically resulted in higher overall scores. Ultimately, Complainant ranked 21st out of 30 candidates. As such, the AJ indicated that it was not reasonable to conclude that Complainant was not selected based on disability or prior EEO activity.
Finally, with regard to Claim F, which was limited to reprisal, the Selecting Official did not know Complainant and did not know about her prior EEO activity at the time she was reviewing the best qualified list. The AJ found that Complainant did not dispute that the Selecting Official lacked this knowledge, thus it was impossible for the Selecting Official to use Complainant's prior EEO activity against her with regard to this selection.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in finding that she could not establish a claim of failure to accommodate pursuant to the Rehabilitation Act. Complainant maintains that she is an individual with a disability and as such should have been provided an accommodation. Complainant indicates that the AJ's finding that she failed to participate in the interactive process was not supported by the record. Complainant asserts that the Agency did not provide her with the appropriate paperwork to submit a formal request for accommodation. She maintains that she attempted on at least six (6) different occasions to receive the paperwork to request a reasonable accommodation. Further, Complainant maintains that the Agency discriminated against her by requesting overly broad medical records. As such, she maintains that she did not have a duty to provide the medical documentation requested by the Agency. Complainant maintains that her disability was known by the Agency as she self- identified herself as being disabled.
Further, Complainant argues that the AJ incorrectly held that the shuttle bus ran continuously between the off-site parking and the Regional Office. Complainant maintains that this was not true and numerous witnesses could testify that the shuttle was inconsistent and often times would leave early, not show up, would break down, and was not equipped to handle disabled riders.
Complainant also maintains that the AJ erred in not finding that the parking tickets were issued because of her disability and reprisal and that the negative comments on her performance appraisal were placed there because of discrimination and reprisal as well. Complainant asserts that the AJ erred in finding that she did not prove that she was terminated because of discrimination. Finally, Complainant contends that she was subjected to discrimination and reprisal when she was not selected for the two positions for which she applied.
The Agency did not submit a brief on appeal.
STANDARD OF REVIEW
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. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination and reprisal and even if we assume that she is a qualified individual with a disability, we agree with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for its actions as listed above. We agree with the AJ that Complainant did not demonstrate that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. We also agree with the AJ that Complainant did not demonstrate that she was denied a reasonable accommodation. We find that there is substantial evidence in the record to support the AJ's determination that she was not denied a reasonable accommodation because (1) she did not provide reasonable medical documentation when requested and (2) she was effectively accommodated with the shuttle.
On appeal, Complainant reargues the facts of her case, and maintains that the AJ erred in his finding of no discrimination or reprisal. We find that other than Complainant's conclusory statements, she has not shown and nor does the record establish that the AJ erred. We note that a hearing was held and Complainant had the opportunity to respond to all of the claims made that she now argues are in dispute. We find that the evidence simply does not support Complainant's contentions. For example, Complainant argued that she was denied a reasonable accommodation and yet she did not provide the medical documentation that the Agency requested. Complainant indicated that she did not provide the medical documentation because she believed it to be unreasonable as she had self-identified as disabled and had a VA rating. The Commission has long held that self-identification as disabled and having a VA rating does not mean that a Complainant is automatically covered under the Rehabilitation Act. Complainant had the burden to demonstrate through medical documentation that she was in fact covered under the Rehabilitation Act and by not providing the requested information the Agency was unable to move forward with her request.2
Finally, with regard to Complainant's allegation that she was wrongly terminated during her probationary period, we have long held that where a complainant is a probationary employee, he or she is subject to termination at the discretion of an agency so long as these decisions are not based on a discriminatory consideration. Cleveland v. USDA, EEOC Appeal No. 0120073335 (Oct. 12, 2007); and Tortorelli v. Dep't of the Air Force, EEOC Request No. 05920285 (May 7, 1992). In this case, there is simply no evidence that the Agency's actions were motivated by discriminatory animus.
Accordingly, we find that the AJ fully and correctly addressed all of the issues in this case. We agree that Complainant did not demonstrate that she was subjected to discrimination and/or reprisal.
CONCLUSION
According, the Agency's Final Order which fully implemented the AJ's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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. 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
__3/8/17________________
Date
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.
2 We note that an individual is not entitled to reasonable accommodation when the need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150207
2
0120150207