Clayton C.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120150016 (E.E.O.C. Mar. 9, 2017)

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

Clayton C.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150016

Hearing No. 410-2014-00006X

Agency No. 200I-0508-2012104794

DECISION

The Commission accepts Complainant’s appeal from the Agency’s August 29, 2014, final
order concerning his 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse Assistant at
the Agency’s VA Medical Center in Decatur, Georgia. Complainant worked in the Inpatient
Mental Health Unit, which is an acute crisis stabilization unit for people with psychiatric
conditions. Complainant experiences complications from post-traumatic stress disorder
(PTSD), depression, cognitive disorder, gout, and chronic obstructive pulmonary disease
(COPD). Complainant is able to perform the essential duties of his position, and had no
restrictions at the relevant time.

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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On May 29, 2012, and July 17, 2012, Complainant’s requests for leave to attend medical
appointments were denied. Complainant claims that management told him that his requests
were denied due to insufficient staffing to cover for him. Additionally, Complainant’s requests
for leave to attend medical appointments on August 14, 2012, September 7, 2012, and
September 18, 2012, were denied even though Complainant claims that he had previously
provided a list of his appointments.

On October 2, 2012, Complainant received approval for Family Medical Leave Act (FMLA)
leave for an intermittent health issue. Complainant’s second-level supervisor (S2) called the
Human Resources Specialist and inquired as to why Complainant had requested FMLA. The
Human Resources Specialist informed S2 that she could not release any information about
Complainant’s condition. S2 asked additional questions about FMLA leave usage and
documentation.

On December 20, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American) and disability when:

1. On May 29, and July 17, 2012, Complainant's requests for leave to attend medical
appointments were denied;

2. On August 14, September 7, and September 18, 2012, Complainant’s requests for
leave to attend medical appointments were denied; and

3. On October 3, 2012, Complainant’s supervisor attempted to access his medical
information when she asked a Human Resources Specialist what condition he had
that necessitated his taking leave under Family Medical Leave Act (FMLA).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted summary judgment in favor of the
Agency, and issued a decision on July 29, 2014.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and found that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to claim (1), the Agency denied Complainant’s leave requests
because there was insufficient staffing to cover his absence. Complainant’s first-level
supervisor (S1) stated that, on May 29, 2012, Complainant came to her 30 minutes before the
end of his tour and requested leave to attend an appointment that day. S1 denied the request
because there was inadequate staffing. Likewise, on July 17, 2012, Complainant requested
leave for that day. The request was denied due to inadequate staffing.

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With respect to claim (2), the AJ determined that there was no evidence that Complainant
requested leave August 14, 2012. Further, S1 stated that Complainant requested leave for
September 17, 2012, and came to her stating that she had approved the date. After she showed
him the leave that he had requested, Complainant said that he had made a mistake and needed
time off for September 18, 2012, instead. S1 told Complainant that she did not have enough
staff and would need to ask S2 for approval. S2 advised Complainant to switch days off with a
co-worker. Complainant did not switch days with a co-worker, but management granted him
an hour of sick leave for the morning of September 18, 2012.

Finally, regarding claim (3), S2 stated that she received a letter stating that Complainant had
been approved for FMLA and was wondering what the request was about. S2 confirmed that
she called the Human Resources Specialist because she was concerned that Complainant’s
condition would create a safety issue on the unit as working on the inpatient mental health
ward had physical requirements and unpredictable patients.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The Agency subsequently issued a
final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the Agency’s motion for summary judgment as untimely
filed. Complainant contends that he suffered prejudice due to the Agency’s “sloppy litigation
practices that override the right to a fair and just hearing.” Complainant alleges that S2’s
delay or denial of his leave requests caused him harm and violated administrative policy.
Further, Complainant argues that S2 made an improper inquiry about his condition when she
asked the Human Resources Specialist about his FMLA leave. Accordingly, Complainant
requests that the Commission reverse the final order. The Agency submitted a statement in
opposition to Complainant’s appeal in which it urged the Commission to affirm its final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

At the outset, the Commission finds that Complainant failed to show that the AJ abused his
discretion by accepting and granting the Agency’s untimely motion for summary judgment.
The AJ exercised his discretion to accept the Agency’s motion after the deadline. Despite
Complainant's arguments to the contrary, the Commission finds there is no evidence that
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Complainant was prejudiced by the AJ’s consideration of the Agency’s untimely motion. The
record shows that Complainant responded to the Agency’s motion, objecting to its untimeliness
and opposing summary judgment. The AJ also accepted for consideration Complainant’s
response in opposition. The Commission notes that AJs have broad discretion in the conduct of
hearings and related proceedings. See 29 C.F.R. § 1614.109; see also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug.
5, 2015). Upon review of the record, the Commission finds no evidence that the AJ abused
his discretion in the manner in which he managed and adjudicated this case.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that Complainant failed to present evidence to
rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically,
with respect to claim (1), S1 stated that Complainant asked for leave for an appointment in
May 2012, approximately 30 minutes before the end of his tour. ROI, at 90, 92. S1 affirmed
that she denied his leave request due to insufficient staffing to cover his absence and asked that
he reschedule the appointment. Id. S1 noted that Complainant was informed that he needed to
request leave in advance. Id. Complainant rescheduled the appointment for later that day. Id.
at 138. Complainant again verbally requested leave to attend an appointment on July 17, 2012,
and the request was denied due to staffing needs. Id. at 79. The record reveals that
Complainant failed to submit leave requests in accordance with the Agency’s leave policy for
both of these dates. Id. at 113.

As to claim (2), the Agency again explained that Complainant’s requests for leave were denied
due to staffing needs. The record reveals that Complainant was granted 12 hours of family
care leave on August 13, 2012. ROI, at 112. There is no evidence that Complainant
submitted any leave requests for August 14 or September 7, 2012. Regarding the September
18, 2012 request, S2 stated that Complainant had mistakenly requested leave for September 17,
2012, instead of September 18, 2012. ROI, at 111-12. Complainant was initially given the
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option of switching days off with another co-worker; however, he subsequently was granted an
hour of sick leave to attend the appointment. Id. S2 stressed that employees are generally
granted leave for routine appointments if the employee requests the leave in advance. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions.
Complainant's subjective belief that the Agency actions at issue were the result of
discrimination is insufficient to prove pretext. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination as alleged.

Medical Condition Inquiry

With regard to claim (3), the Commission notes that the Rehabilitation Act allows employers to
make disability-related inquiries or require medical examinations of employees only if it is job-
related and consistent with business necessity. 29 C.F.R. §§ 1630.13(b), 14(c). Generally, a
disability-related inquiry or medical examination of an employee may be “job-related and
consistent with business necessity” when an employer “has a reasonable belief, based on
objective evidence, that: (1) an employee's ability to perform essential job functions will be
impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical
condition.” See EEOC Enforcement Guidance, Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA), Q.4 (July 26,
2000).

The record indicates that on October 2, 2012, Complainant received approval for intermittent
FMLA leave for a serious medical condition. ROI at 109. The next day, S2 called the Human
Resources Specialist and asked several questions related to FMLA. Id. at 110. Among the
questions, S2 asked about Complainant’s serious health issue, but the Human Resources
Specialist informed S2 that she could not disclose any information about Complainant’s
condition. Id. S2 explained that she was not interested in specific information about
Complainant’s condition; rather, she was concerned about Complainant’s and the unit’s
patients’ safety. Id. at 98. S2 noted that the unit had very unpredictable patients and required
some physical duties. Id. S2 added that when she received the memorandum stating that
Complainant had a serious health condition with no other information, she simply wanted to
ensure that he would be able to work safely in the unit. Id. The Human Resources Specialist
confirmed that after she explained that she could not disclose any information about
Complainant’s condition, S2 did not attempt to gather more information about Complainant’s
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medical condition and asked questions about the FMLA program. Id. at 102. There is no
indication that any information related to Complainant’s condition was disclosed.

Here, S2’s initial question to the Human Resources Specialist about Complainant’s condition
necessitating FMLA would be permissible only if it is shown to be “job-related and consistent
with business necessity.” S2 explained that she was surprised to learn from the FMLA
memorandum that Complainant had a serious medical condition and she was concerned for
Complainant’s safety in performing his essential duties and the unit’s patients’ safety.
Significantly, the Commission notes that the record shows that the Human Resources Specialist
acted properly in not disclosing any information about Complainant’s condition, and S2 made
no further attempts to learn more about Complainant’s condition. Based on the specific
circumstances present, the Commission finds that S2’s one-time question about Complainant’s
condition related to an FMLA memorandum she received does not rise to the level of a per se
violation of the Rehabilitation Act. However, the Commission cautions the Agency to better
train its managers and supervisors to avoid questions during FMLA and related processes that
may violate the Rehabilitation Act.

Hostile Work Environment

Finally, with respect to Complainant's contention that he was subject to a hostile work
environment with respect to the matters set forth in his complaint, the Commission finds that
under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that his
claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work
environment is precluded by the Commission’s determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order implementing the AJ’s decision, because the AJ’s issuance of
summary judgment was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.

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:

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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
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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 9, 2017
Date