Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2012-3496-0500 (E.E.O.C. Sep. 25, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120123496

Hearing No. 541-2009-00126X

Agency No. 2003-0554-2008103255

DECISION
On September 14, 2012, Complainant filed an appeal from the Agency’s August 15, 2012,
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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Patient Services
Assistant at the Agency’s facility in Denver, Colorado. On September 9, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of her
race (African-American), sex (female), disability (post-traumatic stress disorder, chronic
depression, anxiety disorder, and disassociating disorder), and in reprisal for prior protected
EEO activity when:

1. management failed to provide her with adequate training during her probationary
period;
2. management forced her to work without assistance;
3. management forced her to work without breaks on several occasions;
4. management denied her request for a reasonable accommodation;
5. in April 2008, Complainant’s supervisor and a coworker accessed her medical
records without authorization;
6. in April 2008, a coworker made a disrespectful comment about her disability;
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7. in April 2008, a coworker (CW1) made a crude, unprofessional comment when she
asked him for assistance;
8. the lead patient services assistant (LPSA) told her she “would get what was coming
to her” and that he thought her recent anxiety attack was “bullshit”; and
9. on May 30, 2008, management informed Complainant that she had been terminated
from her position during her probationary period, effective June 13, 2008.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case found that, after viewing the evidence in a light most favorable to
Complainant, a decision without a hearing was appropriate as there were no genuine issues of
material fact in dispute. The AJ issued a decision without a hearing on August 7, 2012,
finding no discrimination. 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. On appeal, Complainant reiterates her contention that she was subjected to unlawful
discrimination and a hostile work environment.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
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3
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. 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). 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 Construction Co. 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 804
n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. Texas Department of Community 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 Products, Inc

., 530
U.S. 133 (2000).
Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a
prima facie case of race, sex, disability, and reprisal discrimination, the Agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to
claim (1) the record shows that Complainant began her probationary period on August 19,
2007, and that she received the same standard on-the-job training as all other probationary
employees. The record also shows, however, that the employee charged with providing this
training (T1), reported to management that Complainant was distracted and unfocused during
training and failed to take notes which led to T1 having to repeat instruction on information
which had already been provided. Additionally, T1 stated that as of April 2008, Complainant
was still unsure how to perform basic functions of her position for which T1 had provided
hours of instruction but for which Complainant failed to take any notes. With respect to claims
(2) and (3), management states that decisions on staffing assignments and breaks are made in
accordance with the need to maintain coverage. Further, the Chief (M1) stated that the facility
was often short-staffed which would require employees to cover certain areas without
assistance. We concur with the AJ’s finding that Complainant failed to show that the Agency’s
actions were motivated by discriminatory or retaliatory animus.

As to claim (9), the record shows that on May 30, 2008, management informed Complainant
that her work performance did not meet the minimum standards of her position and that her
employment was terminated. In support of this decision, management cited several incidents of
Complainant entering incorrect data, failure to follow the Agency’s rules regarding cell phone
and internet usage, unwillingness to focus on the duties of her position, failure to follow
instructions, and verbal altercations with coworkers that interfered with the running of the
facility. Further, the record shows that prior to her termination, management received
numerous reports from Complainant’s coworkers stating that Complainant was disruptive and
uncooperative, insubordinate, and that she was often shopping on the internet, using her
personal cell phone during business hours, and repeatedly leaving her work area during her
shift. Accordingly, we find that Complainant has failed to show that the Agency’s articulated
reasons for terminating her employment were a pretext for unlawful discrimination.

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With respect to claim (4), under the Commission’s regulations, an agency is required to make
reasonable accommodation to the known physical or mental limitations of an otherwise
qualified employee with a disability, unless it can demonstrate that the accommodation would
impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9(a). The term
“qualified,” with respect to an individual with a disability, means that the individual satisfies
the requisite skill, experience, education and other job-related requirements of the employment
position such individual holds and, with or without reasonable accommodation, can perform
the essential functions of the position. 29 C.F.R. § 1630.2(m).

A reasonable accommodation is a modification or adjustment to the work environment, or to
the manner or circumstances under which a position held or desired is customarily performed,
that enables a qualified individual with a disability to perform the essential functions of that
position. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, General Principles (Oct. 17, 2002).
An accommodation must be effective in meeting the needs of the individual. Id. In the context
of job performance, this means that a reasonable accommodation enables the individual to
perform the essential functions of the position. Id. An agency must consider each request for
reasonable accommodation and determine: (1) whether the accommodation is needed; (2) if
needed, whether the accommodation would be effective; and (3) if effective, whether providing
the accommodation would impose an undue hardship. Id.

For purposes of analysis only, we will assume that Complainant is a qualified individual with a
disability. As such, the Agency would be required to provide Complainant with an
accommodation. Upon review of the record, however, the Commission finds that the Agency
did not deny Complainant an accommodation. Specifically, the record shows that in April
2008, Complainant requested that management not assign her to work at the front desk. The
record also shows that on or about April 10, 2008, Complainant submitted a letter from her
psychotherapist that outlined her condition and diagnosis but made no mention of any
limitations or the need for an accommodation. When, as is the case here, an individual’s
disability or need for reasonable accommodation is not obvious, and the individual fails to
provide reasonable documentation requested by the employer, the employer will not be held
liable for failure to provide the requested accommodation.
at Question 32.
Guidance

, Question 6.
Accordingly, the Commission finds that Complainant has not demonstrated that she was denied
a reasonable accommodation.
Next, to establish a claim of harassment, Complainant must show that: (1) she is a member of
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)
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Further, the incidents must have
been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment
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and create an abusive working environment.” Harris, 510 U.S. at 21. The harasser’s conduct
should be evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris

Here, we find that the record supports the AJ’s determination that Complainant failed to prove
that the Agency subjected her to a hostile work environment based on her race, sex, disability,
or prior EEO activity. Specifically, with respect to claims (6), (7), and (8), we concur with the
AJ’s finding that the incidents alleged were the result of work-related conflicts, personality
conflicts, and frustrations with Complainant’s work performance, and that there is no evidence
to show that any of the actions were motivated by discriminatory animus. Further, we find that
these comments are not sufficiently severe or pervasive to rise to the level of actionable
harassment. Additionally, insofar as Complainant is alleging a hostile work environment based
on the totality of the claims alleged, the Commission finds that since she failed to refute the
legitimate, nondiscriminatory reasons proffered by the Agency for its actions, she necessarily
also failed to establish that such actions were taken on the basis of her membership in the
protected classes. Accordingly, Complainant failed to establish that she was subjected to a
discriminatory hostile work environment.
).
See Bennett v. Department of the Navy

, EEOC
Request No. 05980746 (September 19, 2000).
Finally, we note that although the AJ failed to address claim (5) in her decision, we find that
the record is adequately developed for the Commission to make a determination on this claim.
EEOC regulations provide for the confidentiality of medical records, and make it clear that
information obtained regarding the medical condition or history of any employee shall be
treated as a confidential medical record, except that supervisors and managers may be
informed regarding necessary restriction on the work or duties of the employee and necessary
accommodation. 29 C.F.R. § 1630.14(c); see Valle v. U.S. Postal Service, EEOC Request
No. 05960585 (September 5, 1997); Short v. Dep't of the Air Force, EEOC Appeal No.
01980456 (October 7, 1999). By its terms, this requirement applies to confidential medical
information obtained concerning “any employee,” and is not limited to an individual with
disabilities. See Hampton v. U.S. Postal Service

, EEOC Appeal No. 01A00132 (April 13,
2000). Employers have the burden of showing that disability-related inquiries and requests for
examinations are job-related and consistent with business necessity. EEOC Notice No.
915.002, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (July 27, 2000).
Upon review, we find the Agency demonstrated its access to Complainant’s medical records
was job-related and consistent with business necessity. The record shows that in April 2008,
S1 and one of Complainant’s coworkers accessed her medical records in order to admit her
into the emergency room as a patient. Further, the record shows that any incidents of prior
access were related to scheduling of medical appointments or the updating of her dental
benefits and, as such, we find that Complainant has failed to show that the accessing of her
medical records was a violation of the Rehabilitation Act.
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CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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.
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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, Director
Office of Federal Operations

September 25, 2015
Date