Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120114229 (E.E.O.C. Mar. 14, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120114229

Hearing No. 560-2010-00258X

Agency No. 2003-0589-2010100771

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 3, 2011 final Agency decision (FAD) 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
FAD.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid
at the Agency’s Medical Center in Kansas City, Missouri. On January 8, 2010 (and later
amended), 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 (Caucasian),
disability, and in reprisal for prior protected EEO activity when:

1. On November 18, 2009, the Chief of Environmental Management Service (Chief)
issued him an Assignment of Work Letter that instructed him to pick up dirty linen
and soiled laundry;

2. On November 18, 2009, the Chief failed to accommodate his disability by assigning
him duties not within his physical limitations;

3. On November 24, 2009, the Chief issued him a Letter of Counseling;
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4. On February 24, 2010, he was sent him home from work for an indefinite period
and forced to use annual leave until he returned to work;

5. On March 1, 2010, the Chief issued him an Assignment of Work Letter, instructing
him to detail and clean EMS equipment and discharge rooms;

6. On April 26, 2010, the Chief removed him from light duty and reassigned him to
the day shift (7:00 a.m. - 3:30 p.m.); and

7. On May 14, 2010, the Chief placed him on Sick Leave Certification.1

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
his request. As a result, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant is an individual with a
disability and that he established a prima facie case of discrimination and reprisal. The Agency
found that management articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claims (1) and (2), on November 18, 2009, Complainant refused to pick up
dirty linen off the floor. At the time he refused, Complainant did not mention that he had
injured his left calf or any other medical condition to the Chief; rather, Complainant asserted
that picking up the soiled laundry from the floor was not part of his position description. As a
result, the Chief issued Complainant an Assignment of Work Letter instructing him to pick up
the dirty linen because this duty was part of his position description. Complainant did not
advise management of his injury and medical restrictions until November 20, 2009, and when
the Chief requested supporting medical information, Complainant refused or continually failed
to provide that information for two months.

Regarding claim (3), the Chief asserted that Complainant refused to follow his order to enter
his office. After consulting with the Office of Human Resources, he issued Complainant the
Letter of Counseling. With respect to claims (4) and (5), in late January, 2010, Complainant
presented a Workers’ Compensation CA-17 form to management identifying his work
restrictions relating to his calf injury. The CA-17 form indicated that some, but not all, of his
physical functions and duties were limited to four hours per day, but he was permitted to
perform other job functions up to seven hours per day. Complainant advised management that
he interpreted the form to mean that he did not have to work for more than four hours a day,
and therefore, he refused to work more than four hours. As a result, the Chief sent
Complainant home and subsequently issued him an Assignment of Work Letter describing his
duty responsibilities in compliance with his work restrictions.

1 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(4). The
Commission notes that Complainant does not challenge the Agency’s dismissal of this claim on
appeal; therefore, the Commission declines to address the matter further in the instant decision.
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In regard to claim (6), the Chief affirmed that Complainant was reassigned from the second
shift to the day shift so that he could perform light duties while his calf healed. Around mid-
May 2010, Complainant’s workers’ compensation claim was denied, and the Chief returned
Complainant to the second shift because he was able to perform the full range of his duties.

Finally, as to claim (7), the Chief stated that, in late 2009, he had counseled Complainant for
excessive use of sick leave. In early May 2010, he again reviewed Complainant’s use of sick
leave and found that Complainant failed to show any improvement in his use of sick leave.
Accordingly, he issued Complainant a sick certification dated May 14, 2010. The Chief noted
that he performed sick leave certification review every six months for all of his subordinates
and numerous other employees were also placed on sick leave certification.

The Agency determined that Complainant had failed to establish that management’s reasons for
its actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as alleged.

Next, as to Complainant’s denial of reasonable accommodation claim alleged in claim (2), the
Agency determined, as discussed above, that Complainant did not mention to management that
he had any medical restrictions until November 20, 2009. Complainant refused to pick up
soiled items off the floor two days before, not because of any medical condition; but rather,
because he believed it was not part of his position description. The Chief requested that
Complainant provide more information about his medical restrictions, but Complainant refused
to provide any information until January 21, 2010. All other management officials denied
having any knowledge of Complainant’s need or request for reasonable accommodation on
November 18, 2009. As a result, the Agency determined that Complainant did not establish
that he either requested an accommodation on November 18, 2009, or that management was
aware of his need for accommodation at that time.

Finally, the Agency concluded that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment and that Complainant failed to show that the
Agency acted with discriminatory or retaliatory animus. Accordingly, the Agency found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Chief harassed and retaliated against him by issuing
directives and letters of counseling. Additionally, Complainant argues that he refused to meet
with the Chief because he was denied his right to union representation when meeting with
management. Further, Complainant alleges that the Chief knew he had a service-connected
disability because the Chief previously put him on light duty for two weeks for a work-related
injury two years ago. Accordingly, Complainant requests that the Commission reverse the
FAD.
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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission shall assume, without so finding, that Complainant is an
individual with a disability. The Agency has articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to claims (1)-(3), the Chief affirmed that Complainant told him
that he was not picking up dirty linen and laundry. ROI, Ex. B-3, at 9-10. Complainant
claimed that this task was not part of his job duties; therefore, the Chief consulted with the
Human Resources Specialist and issued Complainant the Assignment of Work Letter informing
him of his job responsibilities. Complainant did not inform anyone in management at the time
that he had suffered a work-related injury or that he was under any restrictions.

On November 20, 2009, Complainant informed management for the first time of his work-
related injury and requested light duty. The Chief requested that Complainant meet with him
in his office so that he could provide Complainant the CA-17 workers’ compensation form for
his doctor to indicate what his restrictions were. Complainant refused to enter the Chief’s
office without union representation, took the form out of his hand, and left. ROI, Ex. B-3, at
14. The Chief then provided Complainant a directive to meet with him in his office on
November 23, 2009, for counseling regarding his conduct on November 20, 2009. ROI, Ex.
C-4. Complainant again refused to meet with the Chief and the Chief issued Complainant the
Letter of Counseling for refusing to follow his directive. ROI, Ex. B-3, at 18-20; ROI, Ex. C-
5.

With regard to claims (4) and (5), Complainant was placed on light duty, but did not return the
CA-17 until January 2010. Meanwhile, the Chief assigned Complainant duties that he believed
he could do because Complainant had not produced any documentation as to what his actual
restrictions were. ROI, Ex. B-3, at 15. After providing the CA-17, Complainant was under
the belief that it stated that he only had to work four hours and that he could sit down for the
remainder of the shift. Id. at 25. The CA-17 form actually indicated that Complainant could
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stand, sit, and walk intermittently for four hours each and could perform other functions for
seven hours. Id. at 25; Ex. C-10. As a result, when Complainant refused to work beyond
four hours he was sent home while the Agency clarified that his duties did not conflict with his
restrictions. ROI, Ex. B-3, at 22-23; ROI, Ex. B-4, at 11. The Chief subsequently issued
Complainant an Assignment of Work Letter indicating what his light duty functions were and
to show that these assigned duties did not violate his medical restrictions. ROI, Ex. B-3, at 26.

As to claim (6), around May 14, 2010, Complainant’s workers’ compensation claim was
denied by the Office of Workers’ Compensation Programs. As Complainant’s prior
restrictions had expired, and Complainant had not submitted any documentation showing that
he was still under any restrictions, the Chief returned him to his normal duties and work hours.
ROI, Ex. B-3, at 30; ROI, Ex. B-5, at 18-19.

Finally, with respect to claim (7), the Chief affirmed that Complainant had previously been
counseled about his failure to be regular in attendance and had not shown improvement. ROI,
Ex. B-29, at 3. Since Complainant had been previously counseled about this matter, the next
step was to place him on sick leave restriction. Id.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, 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.

Complainant chose to withdraw his request for a hearing. The Commission does not have the
benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. 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 or
retaliatory animus. Complainant has failed to carry this burden. Thus, based on the evidence
presented herein, the Commission concurs with the Agency that Complainant failed to prove
management's reasons for its actions were pretext for unlawful discrimination or reprisal.

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Denial of Reasonable Accommodation

To the extent Complainant alleges that the Agency denied him reasonable accommodation,
under the Commission's regulations, an Agency is required to make a reasonable
accommodation for the known physical and mental limitations of a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2 (o) and (p).

Complainant contends that the Agency failed to accommodate his disability by assigning him
duties not within his physical limitations on November 18, 2009. The record reveals however,
that Complainant had not informed the Agency of his on-the-job injury at that time. Further,
while Complainant claims that the Chief knew he had a service-connected disability,
Complainant has presented no evidence that he was under any medical restrictions at the time.
On November 20, 2009, Complainant informed management that he had suffered a work-
related injury and the Chief immediately provided him light duty work. When Complainant
returned his CA-17 form two months later and listed his specific restrictions, management
provided him duties in accordance with those restrictions. Finally, when Complainant’s
restrictions expired and he failed to submit any new documentation indicating that he was still
under any restrictions, management returned him to his normal duties and shift. As a result,
the Commission finds that Complainant has not established that the Agency denied him
reasonable accommodation in violation of the Rehabilitation Act.

Hostile Work Environment

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's 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 or retaliatory animus, as
discussed above. 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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (Nov. 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 14, 2013
Date