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

Equal Employment Opportunity Commission

Feb 12, 2015

0120121517 (E.E.O.C. Feb. 12, 2015)

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. 0120121517

Hearing No. 510-2010-00351X

Agency No. 200I-0573-2009104813

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 12, 2012 final decision concerning his 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. 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 Police Officer at
the Agency’s VA North Florida/South Georgia Healthcare System in Gainesville, Florida. On
August 25, 2008, Complainant was injured when his weapon discharged while he was driving.
Complainant claimed that he was reaching for his weapon while driving and drifted off the
road, causing the gun to discharge and a bullet to graze his left hand. Complainant had
surgery on his hand and was out from work from August 26, 2008 to October 20, 2008. On
October 20, 2008, Complainant’s doctor released him to work light duty. Complainant was
assigned to an Evening Police Dispatcher position as light duty.

Complainant had a second surgery on his hand in December 2008, and was out of work for
four weeks. According to Complainant, his doctor verbally released him to work light duty on
January 6, 2009. Complainant claims that he advised his second-level supervisor (S2) that he
had been released for light duty; however, he failed to provide any documentation in support.
As a result, S2 informed him that Complainant would have to undergo a fitness-for-duty
examination (FFDE) before returning to work. In addition, S2 had concerns about a series of
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“very bizarre and incriminating statements” Complainant had made, including that he was
being sued and/or under investigation for child molestation and other disturbing statements.

Complainant was examined by the Employee Health Physician (P1). Based on Complainant’s
self-inflicted gunshot wound, P1 believed it would be reasonable to include a psychological
assessment to determine whether Complainant was “psychologically equipped” to handle a
firearm. Complainant was referred to the doctor (P2), who previously conducted his annual
examinations to conduct the psychological evaluation. On February 4, 2009, P2 conducted the
psychological examination. P2 expressed reservations about Complainant’s emotional stability
and suitability to be a police officer. P2 noted that Complainant had a “long history of
interpersonal conflict, difficulty managing anger and legal entanglements that reflect disregard
for the law or poor judgment.” P2 recommended to P1 that Complainant might be better
suited for a different work area, but not to return as a police officer.

On February 4, 2009, Complainant’s own doctor released him to return to full-duty, and
Complainant provided documentation to the Agency. On March 18, 2009, Complainant was
detailed to the Acquisition and Material Management Service (AMMS) pending completion of
the investigation as to whether he should be removed for failure to maintain position
requirements. On April 13, 2009, Complainant submitted to a private FFDE. On April 16,
2009, the private FFDE psychologist (P3) concluded that Complainant was fit for duty and that
he should be allowed to have “full police powers” once his hand injury was medically cleared.

On April 27, 2009, S2 issued Complainant a proposed removal for failure to maintain the
position requirements of a police officer position following an unfit-for-duty finding after a
FFDE. On March 10, 2010, Complainant was informed that the proposed removal would be
reduced to a reassignment to a Supply Technician position in AMMS.

While assigned to AMMS, Complainant alleged that the Service Chief harassed him.
Complainant claimed that he contacted the Federal Bureau of Investigations (FBI) to investigate
false statements contained in his FFDE. Complainant claimed that he and another employee
were assigned to go to Jacksonville to look for lost inventory and that he planned to see an FBI
agent on his lunch break. Complainant stated that when he informed the Service Chief that he
had something to do on his lunch break, the Service Chief insisted that a third employee join
Complainant and the other individual on the trip. In addition, Complainant claimed that the
Service Chief told him that he was going to start a sign-in/sign-out sheet for him.

On December 21, 2009 (and twice amended), Complainant filed a formal complaint. In his
complaint, Complainant alleged that the Agency discriminated against him and subjected him
to a hostile work environment on the basis of disability when:

1. On January 6, 2009, after he was released by his doctor to return to work in a light-
duty status, his supervisor (S2) informed him that there were no light duty positions
available;
2. On January 15, 2009, management required him to undergo a FFDE; and
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3. On February 4, 2009, he was not allowed to return to work even though his doctor
approved him to return to full-duty status.

Further, Complainant alleged that the Agency discriminated against him and subjected him to a
hostile work environment in reprisal for his prior protected EEO activity as evidenced by
multiple incidents including, inter alia, he was detailed from his Police Officer position to a
position in AMMS; he received a proposed removal; management directed a co-worker to
accompany Complainant and another employee to the Jacksonville Outpatient Clinic; the
Service Chief told him he was going to “start a sign-in/sign-out sheet” to keep track of
Complainant’s whereabouts; and he was reassigned “to another position, of the same grade and
pay” within AMMS at the Ocala Community Based Outpatient Clinic and later to The Villages
Outpatient Clinic, effective March 15, 2010.1

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. Complainant timely requested a hearing, but subsequently withdrew his
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of disability discrimination and reprisal. The Agency determined that management
articulated legitimate, nondiscriminatory reasons for its actions. As to his claim that he was
not allowed to return to duty in February 2009, S2 affirmed that Complainant had not been
cleared by P1. S2 explained that it was routine procedure for police officers who had been off
from work for an extended period of time to be cleared by P1 before they can return to work,
and Complainant had been absent from work for three to four months. Further, S2 stated that
Complainant exhibited “very bizarre and incriminating behavior” including making statements
that he was under investigation for child molestation and other disturbing comments. S2
believed that an FFDE was necessary. As a result, management decided not to allow
Complainant to return to work until after the FFDE was completed.

With respect to the detail assignment, S2 confirmed that Complainant was detailed to AMMS
in March 2009 because he could not maintain his position as a police officer until his FFDE
was resolved. Complainant had run out of leave; therefore, S2 detailed him to AMMS to
avoid having to place him on leave without pay.

Regarding the reassignment in March 2010, S2 explained that Complainant was permanently
reassigned to another position with the same grade and pay because he failed his psychological
examination. S2 added that he could not allow Complainant to carry a firearm after he failed
the examination. Because he could not carry a firearm, Complainant could not maintain the

1 The Agency dismissed several additional claims as untimely and for failure to state a claim.
Complainant raised no challenges to the dismissal of these claims on appeal; therefore, the
Commission will not address them in this decision.
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requirements of his Police Officer position. The Labor and Employee Relations Specialist
corroborated S2’s explanation.

In attempting to establish that management’s reasons for its actions were pretextual,
Complainant argued that management officials retaliated against him because he reported an
altercation he had at a shooting range with a co-worker. Complainant believed that the co-
worker was attempting to get revenge against him. The Agency noted that the activity
described by Complainant was not protected EEO activity. In addition, Complainant alleged
that management was motivated by vindictiveness and bad faith and that management officials
did not like him because of his beard, which he wore because he was unable to shave due to a
permanent skin condition. The Agency concluded that Complainant failed to show that
management’s actions were pretext for unlawful discrimination and reprisal. Accordingly, the
Agency found that Complainant had not been discriminated or retaliated against as alleged.

As to Complainant’s hostile work environment claim, the Agency determined that the conduct
complained of by Complainant was ordinary work-related conduct that occurred between a
supervisor and a subordinate that did not rise to the level of a hostile work environment. For
example, the Service Chief stated that he did arrange for a third person to accompany
Complainant on his trip to Jacksonville because he was concerned that Complainant would defy
his instructions and take care of personal business on official time. Further, the Agency found
that there was no evidence that the incidents were based on his protected classes. As a result,
the Agency concluded that Complainant had not been subjected to a hostile work environment
as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency sent him for the FFDE under false pretenses.
Complainant contends that the Agency tried to use his accident as an excuse to justify the
FFDE and violated his rights under the Rehabilitation Act. Further, Complainant alleges that
the Agency did not follow its policies, regulations, and rules in the processing of the FFDE.
Complainant claims that S2 did everything he could to get Complainant out of his service and
that the proposed removal was in violation of the Agency’s Master Agreement with the Union.
Complainant contends that the evidence shows that the Agency discriminated and retaliated
against him and subjected him to a hostile work environment. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
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). 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
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inference of discrimination. Furnco Constr. Co. 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., 530 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 assuming arguendo that Complainant established a prima facie case of
reprisal and disability discrimination, the Commission finds that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to issues related to
Complainant’s return to work, Complainant suffered a self-inflicted gunshot wound in August
2008, and was cleared to return to work by his doctor after a second surgery in January 2009.
S2 affirmed that since Complainant had been out for an extended time, he needed to be cleared
by the Employee Health Physician prior to returning to work even though he had been cleared
by his own doctor. Id. at 229. In addition, management was concerned with Complainant’s
explanation for the self-inflicted gunshot wound, and he had made a series of bizarre and
incriminating statements over a period of time. Id. at 229-31. Based on these circumstances,
management would not allow Complainant to return to work until he passed a FFDE. Id. at
229-30. When Complainant failed the FFDE, management issued Complainant a Notice of
Proposed Removal based on his failure to maintain the requirements of the police officer
position. Id

. at 367-68. Complainant was subsequently detailed to AMMS (and later the
Villages Outpatient Clinic) with his regular pay.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. 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.
As Complainant withdrew 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 lacks persuasive 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 failed to carry this burden. As a result, the Commission
finds that Complainant has not established that he was subjected to discrimination or reprisal as
alleged.

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Fitness for Duty Examination

Next, the Commission will determine whether the Agency violated the Rehabilitation Act by
sending Complainant for an FFDE. The Commission notes that whether Complainant is an
individual with a disability is irrelevant to the issue of whether the Agency properly ordered
him to undergo a FFDE because the Rehabilitation Act's limitations regarding disability-related
inquiries and medical examinations apply to all employees. See EEOC Enforcement Guidance
on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002
(July 27, 2000). The inquiry may be made or the examination ordered only if it is job-related
and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). 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 job or pose a direct threat because of a
medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No.
915.002 (July 27, 2000), at Q.5. 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 ability to perform essential job functions or will result in
direct threat. 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. U.S. Dep't of Homeland Sec.

, EEOC Appeal No. 0120060363 (Oct. 9, 2007).
Here, as discussed above, the record reveals that management sent Complainant for the FFDE
based on multiple reasons. First, S2 affirmed that Agency policy required Complainant to be
cleared by the Agency’s Employee Health Physician before returning to work because he had
been out an extended period of time. ROI, at 229. In addition, S2 stated that Agency
management had concerns about the circumstances surrounding Complainant’s accident and his
explanation of the accident. Id. at 231, 309. Further, S2 was concerned about a series of
“very bizarre and incriminating” statements Complainant made sometime prior to his accident
that he had been accused of child molestation, that he was accused of passing a sexually-
transmitted disease to his own child, that he had been questioned by his wife regarding an
incestuous affair with his daughter, and other statements related to oral sex and his daughter.
Id. at 230. S2 noted that Complainant repeated these statements over the course of several
months. Id. Thus, based on the totality of this evidence, management sent Complainant for an
FFDE, which subsequently found that he was unfit for duty as a police officer. Id

. at 319.
The Commission finds that there was nothing unlawful about the FFDE as the Agency has
established that S2 ordered the FFDE based upon objective evidence that Complainant may
have been unfit to carry a weapon and therefore unable to perform the essential functions of his
job.
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
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1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on his protected classes, he was subjected to a hostile
work environment. Complainant has cited incidents where Agency management took actions
which seemed adverse or disruptive to him. However, the Commission finds that Complainant
has not established that the alleged incidents were based on his protected classes. As discussed
above, the Agency provided legitimate, nondiscriminatory reasons for the events related to the
FFDE, Complainant’s proposed removal, and his detail to AMMS. Finally, with respect to the
claims while detailed to AMMS, the Service Chief affirmed that he sent an NX Technician to
accompany Complainant to Jacksonville because Complainant had mentioned that he intended
to visit a U.S. Attorney for personal business while on an assignment there. ROI, at 216. To
ensure that Complainant did not improperly use an Agency vehicle to conduct personal
business on Agency time, the Service Chief sent another employee with Complainant. Id. In
addition, the Service Chief stated that, while he considered instituting a sign-in sheet for all
employees, he ultimately decided against doing so. Id

. at 218. The Commission finds that
there is no persuasive evidence in the record that Complainant’s protected classes played a role
in any of the Agency’s actions. As a result, the Commission finds that Complainant has not
established that he was subjected to discriminatory or retaliatory harassment.

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.

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:

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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 9-18 (November 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
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
0120121517

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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

Date
February 12, 2015