0120130305
03-24-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120130305
Hearing No. 540-2010-00083X
Agency No. 200P-0649-2009103832
DECISION
Complainant filed an appeal from the Agency's October 20, 2012 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's VA Northern Arizona Healthcare System Engineering Service facility in Prescott, Arizona.
On July 9, 2009, Complainant contacted an EEO counselor. On October 21, 2009, Complainant filed an EEO complaint, which, as amended, alleged that the Agency discriminated against him on the basis of disability (physical and mental) when:
1. on October 23, 2007, management denied his request for a reasonable accommodation for an on-the-job-injury;
2. on June 24, 2009, he became aware that he had not been selected for the position of Maintenance Control Manager;
3. on July 15, 2009, the Agency denied him medical attention during a medical crisis;
4. on September 10, 2009, the Agency accused Complainant of irate behavior when he placed another employee in a "bear hug" after which the Agency made Complainant submit to an alcohol and drug screening; and
5. On September 21, 2009, the Agency scheduled Complainant for a fitness-for-duty examination.
On November 12, 2009, ORM dismissed all of the claims, with the exception of claim 2 (non-selection). The Agency dismissed claim 1 for untimely EEO contact and dismissed claims 3 and 4 for failure to state a claim. The Agency accepted claim 2 as a separate, independent claim of disparate treatment. The Agency did not accept Complainant's hostile work environment claim, reasoning that the "allegedly harassing events are neither severe nor pervasive enough to prove that the alleged harassment had the purpose or effect of unreasonably interfering with his work performance and / or creating an intimidating, hostile, or offensive work environment." The Agency dismissed the claim, finding "the conduct described is insufficient to render [Complainant] aggrieved."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation 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. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency found that Complainant was an individual with a disability because of his hearing limitations. The Agency also found that Complainant was a qualified individual with a disability, because the Agency found him to be qualified when the Agency selected him for an interview. The Agency found, however, that Complainant failed to establish a prima facie case of disparate treatment due to disability, because the position was never filled.
Next, the Agency stated that it had a legitimate reason for Complainant's non-selection, because the Agency concluded that Complainant withdrew his application from consideration and failed to appear for his scheduled interview.
With regard to the second posting of the position, the Agency stated that it considered Complainant, but the Agency did not find Complainant to be among the best qualified candidates, because Complainant did not submit the KSAs.
Next, the Agency found that there was no discrimination with regard to Complainant's other conditions, because management did not become aware of his other conditions until after the interviews and a selection had been made. The decision concluded that Complainant failed to provide evidence proving management's reasons were not the actual motivation for its decision.
This appeal followed.
Complainant named three individuals as the named responsible management officials: 1) the Maintenance Supervisor (no disability) who was his immediate supervisor (Supervisor), 2) the Facility Manager, who was his third level supervisor (no disability) (Manager), and the Engineer Program Manager (no stated disability), who was the Selecting Official for the non-selection at issue.
The pertinent record shows that Complainant suffered from a hearing loss which was known to management. The Selecting Official knew of Complainant's hearing problems.
Complainant also claims that he had other medical conditions (depression, anxiety, PTSD, right arm and back injury). He submitted a request under the Family Medical Leave Act for his medical conditions. He also claimed to have suffered an on-the-job injury. Complainant's supervisor averred that Complainant had complained of hearing problems. His supervisor averred that he did not know about Complainant's other medical conditions. Complainant's third level supervisor was the Facility Manager. He testified that he had no knowledge of Complainant's medical conditions.
Claim 1 - October 23, 2007 Denial of Reasonable Accommodation
Complainant did not contact an EEO counselor with regard to his reasonable accommodation request or the alleged incidents subsequent to his initial EEO contact. He also did not provide the Agency with reasons for not making contact within the 45 day period on the new claims.
Claim 2 - Non-Selection
The Agency advertised a vacancy for the position of Maintenance Control Manager in December of 2008. Complainant was one of four who applied and were found eligible (qualified) for selection.
On April 30, 2009, Complainant emailed the Chief, Human Resources Services (HR) to inquire about the possibility of being placed into the position as a reasonable accommodation for the position. Complainant averred that he sought the position as a reasonable accommodation for his hearing loss. On May 4, 2009, HR notified Complainant that if he was qualified, he would be considered for the position with the other candidates. He also told Complainant that the person selected would be required to undergo a physical examination if the standards for the new job were different than his current job.
On May 13, 2009, Complainant was notified that he had been scheduled for an interview for Thursday, May 21, 2009. Complainant confirmed his appointment, but Complainant did not keep his appointment. On the day before the interview (on May 20, 2009), Complainant requested 166.5 hours of leave under the Family and Medical Leave Act for the period May 20, 2009 to June 23, 2009. On May 21, 2009 Complainant told his supervisor in reference to the upcoming interview, "forget it, I won't get the job anyway." The Supervisor informed Complainant that if he did not want the interview, he needed to let the Engineer Program Manager know.
Complainant did not appear for his interview and did not cancel his interview. On the day of his scheduled interview, Complainant was on leave and did not attend. Three other qualified candidates were interviewed. The Agency selected the highest scoring candidate (no disability stated) of those interviewed, but the selected person declined the position.
The record shows that the Agency cancelled the position without any appointment being made.
On July 7, 2009, Complainant notified his supervisor that he no longer wanted to work in the shops because of his disabilities. When the Supervisor told Complainant that the Supervisor believed that Complainant had been on the short list for the position, but had withdrawn from further consideration when he declined the interview, Complainant responded that he was away on approved medical leave.
The Agency re-announced the position. Applicants who applied for the position under the first announcement were considered without having to reapply. The requirements for the second position required the submissions of a statement demonstrating Knowledge, Skills and Abilities. (KSAs). Two days before the position closed, the Agency notified Complainant of the requirement to submit KSAs. Complainant did not submit KSAs and his name was not on the referral certificate.
Claim 3 - Denial of Medical Attention
Complainant did not identify any EEO related basis or unlawful adverse action taken by the Agency with regard to his claim that he was not given medical attention. The alleged claim is that the Agency denied treatment because he was not a veteran.
Claim 4 - Accused of Inappropriate Behavior and Referred for Fitness Test
Complainant acknowledged that he was required to undergo screening a fitness for duty exam after he made physical contact with another employee when he placed the employee in a "bear hug." Complainant does not dispute the Agency's reasons for its actions.
ANALYSIS AND FINDINGS
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record shows that management denied Complainant's request for reasonable accommodation on October 23, 2007. Complainant's contact with an EEO Counselor occurred a year and seven months after the time when the Agency first notified Complainant that his request was denied. We find that the Agency's dismissal of claim 1 is appropriate.
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Complainant refers to three incidents that occurred after his initial EEO contact. The alleged incidents occurred from July 15, 2009 to September 21, 2009 [when he was denied medical attention, required to submit to an alcohol and drug screening, and scheduled for a fitness for duty.] To the extent that Complainant is claiming that he was denied medical treatment by the VA because he was not a veteran, he has failed to state a claim under the EEO laws. In addition, Complainant has not identified any adverse action that was taken against him when he was referred for screening. We find that the dismissal of claims 3 and 4 was appropriate.
Decision on the Merits - Claim 2 - Non-Selection
On appeal, Complainant maintains that he did not withdraw his name from consideration and claims that the Agency failed to provide him with his requested accommodation (promotion to the advertised position). Complainant also asserts that the Agency erred when it did not permit him to amend his complaint to add a hostile work environment claim, after the Agency did not offer him the promotion to the position at issue, as a reasonable accommodation.
Section 501 of the Rehabilitation Act bans discrimination against individuals with a disability. In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability, we apply the burden-shifting method of proof. Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
To prevail in a disparate treatment claim such as this, Complainant must 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. Co. v. Waters, 438 U.S. 567, 576 (1978). We find that the record supports the Agency's determination that Complainant did not identify any similarly situated individuals outside of his protected group who were treated differently after they fail to show up for an appointment or submit a complete application. The record does not show that the Agency appointed anyone for the position.
In this case, Complainant does not claim that he was or was considered to be an individual with a disability. For purposes of our analysis, however, we will assume that Complainant is a qualified individual with a disability.
The prima facie inquiry may be dispensed with in this case, however, since the deciding official averred that management believed that Complainant had withdrawn his application, was not deemed one of the top candidates and because of Complainant's conduct required screening, because of Complainant's inappropriate touching of a coworker. Consequently, we find that 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
For the reasons stated herein, we find that the record contains substantial evidence that supports the Agency's finding on the merits. Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination.
Reasonable Accommodation
In addition, the record supports the finding that the Agency did not deny Complainant any reasonable accommodation when the Agency did not place him in the position at issue as a reasonable accommodation, because there was no evidence that Complainant ever provided the Agency with a medically supported request for a reasonable accommodation.
CONCLUSION
Accordingly, for these reasons, we AFFIRM the Agency's final decision.
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 tends 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 (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 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 24, 2015
__________________
Date
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0120130305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130305