0120152289
11-14-2017
Melvin C,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melvin C,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120152289
Hearing No. 430201300404X
Agency No. 200406522013101420
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's May 22, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Medical Instrument Technician, GS-8 ("Tech") at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia.
On March 31, 2013, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of race (African-American), religion (Jewish/Hebrew), disability (shoulder injury), and reprisal for prior protected EEO activity2 when:
1. On January 14, 2013, the Nurse Manager of Cardiovascular Services ("N1") denied his request for a religious accommodation and made him take leave;3
2. On March 20, 2013, Management informed Complainant he would be reassigned to the Electrophysiology Lab once he returned to full duty; and
3. On March 20, 2013, Management denied him the opportunity to earn on-call pay compensation when they reassigned him to the Electrophysiology Lab.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing (or summary judgment), which, over Complainant's objections, the AJ assigned to the case granted on May 14, 2015.
In reaching her decision, the AJ determined the following undisputed facts:
Complainant worked in the Cardiac Catheterization Lab ("Cath Lab"), one of four components comprising Cardiovascular Services Division ("Cardio Services"). Day to day operations were overseen by a Nurse Manager ("N1") (white, Methodist, non-disabled, no prior EEO activity), who supervised all of the Cardio Services nursing staff. Complainant and the other Techs in Cardio Services reported to the Administrative Officer for the Medical Service ("S1") (white, Methodist, non-disabled, no prior EEO activity). S1 was responsible for scheduling the Cardio Services Techs, but would consult N1 about staffing needs. For instance, Cath Lab staff had to be able to work together to physically move patients off of stretchers and onto tables. Additionally, Complainant had religious-based scheduling requirements. As a practicing Hebrew Israelite, Complainant was restricted from working from sundown Friday through Sundown Saturday, and on multiple occasions throughout the year when he would observe certain Holy Days. Throughout the relevant time frame, S1 granted all of Complainant's religion-based leave requests.
In August 2012, Complainant, who suffered a work-related shoulder injury in 2008, re-injured his shoulder while he and his coworkers were moving a Cath Lab patient from a stretcher. As a result, Complainant was out of work for nearly a month. When he returned, Complainant was medically restricted from lifting over 5 pounds, pushing a stretcher, or assisting a patient onto an exam table, so he was provided temporary light duty in another office. Around November 2012, S1 and N1, in conjunction with the Office of Workers Compensation ("OWCP") at the Department of Labor, arranged a light duty assignment for Complainant in the Cath Lab.
Meanwhile, in September 2012, a new mandatory on call rotation was implemented for all Cath Lab staff. Per a negotiated agreement between Agency Management and the Union, the rotation schedule had to be assigned equally among all Cath Lab Staff, each on call assignment lasted a week, and on call employees had to be able to work at a full duty capacity. At what Complainant alleges was N1's direction, S1 did not assign him on call duty, citing his medical restrictions. Complainant contacted an EEO Counselor to raise the instant complaint on January 14, 2013. He challenged the "on call" scheduling, arguing that he could still perform most Cath Lab duties while on call so long as he was provided a reasonable accommodation. He also alleged that he was not scheduled because sought assurances during the meetings discussing the new on call schedule that he be accommodated for the Friday and Saturday of the mandatory full week on call rotation as a religious accommodation.
On March 20, 2013, the Agency's Reasonable Accommodations Coordinator notified Complainant that he was reassigned to the Electrophysiology Lab ("EKG Lab") in a light duty capacity as an accommodation for his disability because the EKG Lab did not require on call work. Complainant's hours in the new position were within his religious restriction, he would maintain his current job title and grade, and continue reporting to N1 on a day to day basis with S1 as his first line supervisor. The Notice also offered to make the EKG Lab position permanent once Complainant returned to full duty, as a reasonable accommodation for his religious restrictions. Nurses and lab techs in Cardio Services were trained to work in each of its components, so if Complainant accepted a permanent position within the EKG Lab, he would be eligible to volunteer to cover on call hours in the Cath Lab once he returned to full duty.
After the AJ issued her summary judgment decision, the Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. Complainant raised the instant appeal.
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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus.
Claims 1 and 3: Religious Accommodation
A prima facie case of discrimination based on religious accommodation requires Complainant to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with his employment, (2) he informed the Agency of this belief and conflict, and (3) the Agency nevertheless enforced its requirement against him. Baum v. Soc. Sec. Admin., EEOC Appeal No. 01A05985 (March 21, 2002); Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Once a prima facie case is established, the Agency must show that it made a good faith effort to reasonably accommodate Complainant's religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by Complainant could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R. � 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion" (the Guidelines), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes.
It is undisputed that Complainant had a bona fide religious belief, and that he placed the Agency on notice when his schedule conflicted with that belief. However, the record shows that the Agency provided accommodations in the form of leave and scheduling adjustments, allowing Complainant to work within his religious restrictions throughout the relevant time frame. On appeal, Complainant does not dispute the effectiveness of the accommodations provided.
Claim 1, which alleges that Complainant was "made to take leave" in order to observe religious holidays, describes a religious accommodation. The Supervisor of Labor and Management Employee Relations (white, Christian, no EEO activity, undisclosed disability) ("LM") explained for the record that Complainant used to swap shifts with another employee, and requested assistance to obtain a reasonable accommodation after that employee retired. Although Complainant's preferred accommodation for observing religious holidays was a shift swap, we find his request was effectively accommodated when S1 allowed him to use his leave. Documentation in the record and testimony by S1 and N1 support LM's statement that Complainant was granted leave for all of his religious holidays during the relevant time frame and was never denied leave as an accommodation "at any point." Complainant does not allege that he was ever required to work on days he requested off as a religious accommodation.
Claim 2 concerns the offer of permanent reassignment to the EKG Lab as a religious accommodation. The AJ determined, and we agree, that Complainant fails to show that the March 20, 2013 letter constituted an adverse action because it was contingent on Complainant's return to full duty. It is undisputed that Complainant was on light duty throughout the relevant time period. On appeal Complainant makes clear that he was not at "full capacity," describing ongoing, pain, so severe that it disrupted his sleep, and he could not move in certain ways without pain, including basic tasks like getting dressed, or turning a steering wheel.
Regardless, we find the record is sufficiently developed so that we can conclude that the offer constitutes a reasonable accommodation. An agency is not required to provide the specific accommodation preferred by a complainant and need only provide an effective accommodation. See Gaytko v. Broadcasting Bd. of Governors, Int'l Broadcasting Bureau, EEOC Appeal No. 01A03297 (Sept. 16, 1997) (finding, in part, that an agency offer that complainant could seek a midnight shift without Saturday work was an effective accommodation). For instance, we previously determined that providing a complainant the option to bid for positions that would have permitted him to avoid working on days that would conflict with his religious beliefs, constituted an effective accommodation, even though the positions were not in the office or schedule the complainant asked for. See Rosenberg v. United States Postal Serv., EEOC Appeal No. 01A55011 (Nov. 29, 2005).
Complainant argues that the reassignment would be a "diminution" of his duties by describing his limited role working light duty in the EKG Lab, whereas the proposed reassignment would encompass all the responsibilities of a "full duty" EKG Lab Tech. N1, who oversees the Techs in both the EKG and Cath Labs states Complainant "would be doing the same job [in the EKG Lab], which is monitoring, which is what he does in [the Cath Lab]." The Associate Director of the Medical Center, Complainant's third level supervisor ("S3") (Caucasian, Christian, disability (undisclosed), no EEO activity) responsible for the facility's support services testified in the record that the EKG position would be "very similar" to working in the Cath Lab, only "instead of doing caths [Complainant] will do electrophysiologic studies. He will do exactly the same things he does and helps in the cath lab." Similarly, Complainant's argument that the permanent reassignment would result in "hardship on his religious observance during winter months and generally being less favorable [than his Monday through Thursday schedule in the Cath Lab]" is unsupported by evidence and does not address the effectiveness of the proposed accommodation. The March 20, 2013 letter expressly provided Complainant an earlier shift for Complainant on Fridays, allowing him to leave at 3:30 pm to get home before sundown. LM testifies that prior to changing Complainant's schedule to include Fridays, Agency management considered placing him in another area of Cardio Services, but could not find sufficient Friday coverage. The Agency met its burden to provide Complainant a reasonable accommodation for his religious restriction, conflicting with the on call schedule, by offering permanent reassignment to work in the EKG Lab contingent on Complainant's return to full duty.
Claims 2 and 3: Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant argues that the reassignment from the Cath Lab to the EKG Lab resulted in a substantial "diminution" of his position, and that the Agency used his disability accommodation request as pretext to discriminate against him. Assuming for purposes of this analysis only, Complainant could establish a prima facie case for discrimination on the bases of race, reprisal, disability and religion, he cannot overcome the Agency's legitimate nondiscriminatory reasons for the reassignment: patient safety and the Collective Bargaining Agreement ("CBA") between the Union and Agency Management.
The record supports the Agency's legitimate nondiscriminatory explanation that Complainant was reassigned to light duty in the EKG Lab because his medical restrictions disqualified him for on call duty, a requirement of working in the Cath Lab. The reasonable accommodation provided by the Agency is in the EKG Lab, which does not require staff to work "on call" hours. Complainant argues that having worked in the Cath Lab with and without accommodations for about 10 years, the Agency should continue to allow him to work in the Cath Lab with a reasonable accommodation, i.e. have other employees perform his assigned tasks outside his medical restrictions. According to S3, Complainant could not remain in the Cath Lab on light duty status with this accommodation because "the kind of injury he had prevented him from performing his routine duties" namely transferring patients, "either lifting patients or helping them." Complainant's arguments that moving patients was not "routine" is not supported by evidence, and are further undermined by the "on call" requirement, which is limited to teams of three, and may require working during hours with limited staff. N1 explains that each on call employee must be at "full duty," otherwise they are "putting a patient at risk" if one of the team cannot perform CPR or assist the others with moving a patient. N1 also notes that "if you go into a code situation in the Cath Lab, you immediately need to be able to wear lead to go into the room which [Complainant's] unable to do [as the apron is heavier than his 5 pound weight restriction]." We disagree with Complainant's apparent argument that this safety preparedness is unreasonable, because such scenarios are allegedly uncommon. We find the Agency provided sufficient evidence that patient safety necessitates Cath Lab "on call" employees to all be at full duty status. Complainant, having suffered significant injury to his shoulder as a result of moving patients, should be well aware of the risk of injury to his colleagues and the patients if there aren't enough full duty staff readily available to move a patient.
As for Complainant's argument that even if his disability prevents him from "on call" work, the Agency should allow him to keep his position in the Cath Lab with a reasonable accommodation, there is sufficient evidence demonstrating that such an arrangement would violate the CBA. Under Article 21 Section 3 Part F, a "rotation of weekends and holidays shall be on a fair and equitable basis within a group and may be a subject for local bargaining. The weekends are defined as Saturday and Sunday and may be expanded to include Friday or Monday when scheduling permits." While it was in the planning stages, Complainant took the opportunity during Union meetings, to request on call hours within his religious restrictions, meaning he could not work on call hours on Fridays and Saturdays, but the parties ultimately agreed to one week rotations for all Cath Lab staff. Nobody wanted to commit to swapping the Sunday and Monday of their rotation for Complainant's Friday and Saturday, as it would mean committing to 24 hour on call availability for two weekends. The Agency would accept an on call swap arranged by Complainant with another employee, but it could not "force" anyone to swap, as it would violate the CBA. According to N1, those who could not commit to the on call requirement were transferred to another area of the Cardio Services Department where on call work was not required, such as the EKG Lab. We find the offer reasonable.
Claim 3: Disability Accommodation
An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. �� 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act ("Enforcement Guidance"), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective reasonable accommodation, he or she is not entitled to the accommodation of her choice. See Lynette B. v. Dep't of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Here, the reasonable accommodation at issue is reassignment, which this Commission has long considered to be "the reasonable accommodation of last resort," required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of his or her current position or all other reasonable accommodations would impose an undue hardship. Zachary K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015) citing Enforcement Guidance.
Complainant was reassigned to light duty in the EKG Lab on March 20, 2013 "[d]ue to the limited manning in the Cardiac Catherization Lab and the requirement for consistent coverage due to patient care needs." Complainant was scheduled Monday through Thursday, 8:00am to 4:30pm and, as a religious accommodation, on Friday 7:00am to 3:30pm. According to Complainant, his assignments were limited to "go[ing] around to the different portable EKG machines and taking out the computer chips, downloading the information on the computer so the doctors can read the later on in the evening, and replacing them with blank chips." Sometimes Complainant would also escort the patients who were able to move on their own to their next exam (e.g. bloodwork). Complainant greatly preferred his light duty assignment at the Cath Lab, where he had worked continuously for nearly 10 years with and without reasonable accommodations for his shoulder disability. At the Cath Lab, Complainant had a preferable schedule with Fridays off, and more fulfilling work providing "direct care" to patients.
On appeal, Complainant argues that given the "diminution" of his duties since his light duty reassignment to the EKG Lab, he has not been provided with a reasonable accommodation. The Agency provided legitimate nondiscriminatory reasons for disqualifying Complainant from on call work. Namely, on call employees must be at "full duty" for patient safety, since there are less staff available during "on call" hours. Notwithstanding the conflict with his religious restrictions, Complainant argues that he can perform the "majority" of Cath Lab tasks, and should be provided light duty accommodations during on call hours so that he can earn on call pay as well. Yet Complainant provides no evidence to overcome the Agency's explanation that less staff are available during on call hours. Complainant's contention that "there is no reason an inability to work on call would preclude him from working in the Cath Lab," ignores the agreement between the Union and the Agency making it mandatory for all Cath Lab staff to work on call hours. Therefore, we find the Agency's decision to reassign Complainant light duty in a similar position in the same facility that does not require on call hours a reasonable accommodation for his disability.
Additional Claims
On appeal, Complainant appears to raise a new claim of harassment by N1. As these allegations were not part of Complainant's formal complaint, they will not be adjudicated in this decision. If Complainant wishes to pursue these issues as claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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
November 14, 2017
__________________
Date
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.
2 Complainant's prior EEO activity refers to his participation in a class action discrimination complaint which settled in 2010. The complaint alleged discriminatory allocation of awards on the basis of race, and covered current and former African-American employees at the Hunter Holmes McGuire VA Medical Center from 1996 through present before settling in 2010. Complainant was among the class members and received compensation when the matter was settled for 5 million dollars. The case was publicized on local TV and news media.
3 The Claims have been re-numbered for internal clarity, but are referenced as Claims "F, G and H" by the AJ and in the record. Complainant did not challenge the Agency's pre-investigation dismissal of Claims "A" through "E" of the original complaint, so any references to alleged actions described in these claims on appeal will not be considered in this decision.
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