[Redacted], Donna C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 5, 2022

Appeal No. 2021004121 (E.E.O.C. Dec. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004121 Hearing No. 520-2021-00187X Agency No. 200H-0561-2020104871 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s decision, dated June 23, 2021, which effectively became the Agency’s final action, finding no discrimination regarding her 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, we AFFIRM the Agency’s final action finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-15, Primary Care Physician, at the Agency’s East Orange Veterans Affairs Medical Center in East Orange, New Jersey. On August 5, 2020, Complainant filed her complaint, which was later amended, alleging discrimination based on disability and in reprisal for prior EEO activity when: 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. 2021004121 2 1. She was denied her repeated request for reasonable accommodation from April 21, 2020, to her termination on January 22, 2021;2 and 2. She was charged as Absent Without Leave (AWOL) from August 10, 2020, to her termination on January 22, 2021. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). An investigator noted in the report of investigation that Complainant did not provide an affidavit requested during the investigation of the complaint.3 The AJ issued a decision without holding a hearing, finding no discrimination. The record indicates that Complainant was appointed as a Primary Care Physician at the Agency on March 3, 2019, subject to a two-year probationary period. As a Primary Care Physician, Complainant’s essential duties included: interviewing and examining patients daily (typically 12), via in-person and virtual; examining patients who were present for face-to-face visits; documenting patient visits in the Agency’s electronic medical record; and ordering consults, labs, and medications using the electronic medical record. Complainant indicated that she sustained a shoulder injury on July 12, 2019. We note that Complainant did not claim that she notified her supervisors or requested a reasonable accommodation at the time of her July 12, 2019 injury. Complainant indicated that in December 2019, she aggravated a prior injury to her right shoulder and notified her supervisors of this December 2019 injury shortly thereafter. Complainant claimed that due to her physical conditions, she was unable to lift her right arm, use a mouse or keyboard, or write, and was therefore unable to perform physical examinations on patients, unable to document notes, or use a computer for more than a few minutes at a time. Regarding claim 1, Complainant’s supervisor (S1) indicated that he became aware of Complainant’s right shoulder condition in December 2019. S1 stated that on February 25, 2020, Complainant made a verbal reasonable accommodation request and submitted Family and Medical Leave Act (FMLA) requesting no lifting, no prolonged upper extremely fine manipulation with the right arm/hand, part-time, light duties to include 20 hours work week, no grabbing, and assistance with computer tasks as needed. 2 Our records indicate that on August 2, 2021, Complainant filed an EEO complaint, Agency No. 200H-0561-202110355, regarding her January 22, 2021 termination, recommended by the Professional Standards Board. The Agency issued its final Agency decision finding no discrimination. Complainant appealed the Agency’s decision, and that matter is pending before the Commission, in EEOC Appeal No. 2022002868. 3 The investigator noted that when asked on several occasions, Complainant stated that she sent her affidavit to a “higher authority.” Complainant’s affidavit was not included in the Report of Investigation. Complainant indicates that she sent her affidavit to then Secretary of the Agency, instead. The record indicates that Complainant provided the affidavit to the AJ. 2021004121 3 After being on leave since December 2019, due to her conditions, Complainant returned to work on March 2, 2020, with the work shift restrictions in place as she requested (i.e., work four hours per day and four hours Leave Without Pay (LWOP), five days per week). She was required to complete the Agency’s Talent Management System training modules online and see two or three patients by the end of the week if needed. Complainant failed to see a patient or complete the required training. A Medical Assistant reported that on March 4, 2020, Complainant declined to see a patient in the waiting room who had already waited several months to see her. Complainant told the Medical Assistant that she could not see the patient because her shoulder was bothering her, and she could barely hold a pen to write notes. On March 5, 2020, S1, Complainant’s second level supervisor (S2), and the Reasonable Accommodation Coordinator initiated an interactive process regarding Complainant’s accommodation request and held a meeting. During the meeting, Complainant made it clear that she could not perform patient examinations of her patients, was unable to complete patient paperwork, and was unable to use a computer for more than a few minutes at a time. Because there was concern even part-time work would worsen her condition, the Agency decided to grant Complainant’s alternative accommodation of continuing LWOP to rehabilitate her injury for a six-week period. Complainant indicated that she remained in an approved LWOP status from March 4, 2020, through August 10, 2020. Two weeks after the meeting, Complainant requested 100% telework. In response, on March 25, 2020, S1 requested Complainant provide physician documentation regarding her ability to perform essential functions of her position including her limitations with typing notes, placing orders including consults, sending out lab letters, and filling out paperwork and forms as requested by her patients. During this time period, due to COVID-19, non-urgent appointments were cancelled, and telework arrangements were made for hospital physicians on ad hoc basis, i.e., 50% telework alternating weeks in-person in the hospital and at-home teleworking. Meanwhile, the Agency prepared dictation software to be installed in Complainant’s computer (to minimize typing); two ergonomic chairs to be delivered to her office for each of her exam rooms; and an ergonomic mouse and keyboard were shipped to her home and a second set was delivered to her office. A laptop was approved on March 3, 2020, but the delivery was delayed due to a shortage of equipment. S1 sent a second laptop request through the Computer/Electronic Accommodation program (CAP), within the Department of Defense, to try to get one sooner but the CAP denied the request because during the “Needs Assessment,” Complainant failed to submit sufficient medical documentation to support the need for a second laptop, as well as a telework agreement. On June 2, 2020, the Agency secured a laptop for Complainant, but she never signed a telework agreement, i.e., addressing teleworking for one to three months due to her temporary disability. 2021004121 4 S1 indicated that the Agency could not offer Complainant’s requested unconditional 100% telework for at least a year because she failed to provide medical documentation to justify the request. Further, S1 stated that the hospital had a shortage of physicians, some providers were sick with COVID-19, and Complainant’s patients were being covered by other physicians. Thus, the Agency decided to offer Complainant a telework agreement for one to three months, dependent upon updates to her medical documentation. Complainant did not accept the Agency’s telework agreement. The Reasonable Accommodation Coordinator indicated that Complainant made several accommodation requests, including one on April 21, 2020. Complainant requested 100% telework, 20 hours per work week, and modified work assignments for one year to permanent basis. The Coordinator stated, and the record reflects, that she made numerous requests, including several emails in June 2020, to Complainant for medical documentation of her disability in connection with her reasonable accommodation requests. Complainant failed to provide such documentation. Specifically, the Coordinator stated that Complainant was asked to provide medical documentations relating to the effectiveness of telework/telemedicine accommodation with her medical condition and the information relating to the duration of her medical condition, including her consent to contact her physician in order to proceed with her accommodation request. Complainant failed to provide such information. Thus, on August 7, 2020, the Coordinator closed Complainant’s request for reasonable accommodation and informed her that the case would be reopened if she provided the requested documentation. The record reflects that Complainant provided the Agency a copy of her doctor’s (DR1) Return to Work statements. In a Return to Work, dated January 13, 2020, DR1 indicated that Complainant was seen in his office on January 13, 2020, and may return to work after follow-up on February 10, 2020. In a Return to Work, dated February 10, 2020, DR1 indicated that Complainant was seen in his office on February 10, 2020, and may return to work on March 2, 2020. The record also reflects that Complainant provided a doctor’s (DR2) statement dated February 25, 2020. Therein, DR2 stated that Complainant was under DR2’s care for her right shoulder; she should be given light duty and part-time work with no lifting; she should be given assistance with computer tasks; and her return to full duty would be reevaluated in six weeks. In DR2’s statement, dated April 21, 2020, DR2 indicated that Complainant should be allowed to continue in light duty, work from home via laptop, and telemedicine; and her status to return to full duty would be reevaluated on May 19, 2020. In two statements, both dated May 19, 2020, DR2 stated that Complainant was evaluated on May 19, 2020, for right shoulder; she had dexterity issues; she was to continue in physical therapy to oversee shoulder exercises and working from home via telemedicine; she was able to use a computer and mouse with ergonomic support; and her status to return to normal work activities would be reevaluated in six weeks. 2021004121 5 The record indicates that on July 15, 2020, Complainant submitted DR2’s statement dated June 22, 2020. Therein, DR2 stated that Complainant should be allowed to work from home via telemedicine, maximum 20 hours weekly; she was in pain with dexterity issues; she had issues with gripping and right arm/hand manipulation; she reported pain and issues with gripping the wheel when driving; she would continue with physical therapy to oversee shoulder exercises; she was able to use a computer and mouse with ergonomic support; and her status to resume normal work activities would be reevaluated in six weeks. In a statement dated July 30, 2020, DR2, reiterating the foregoing statement, indicated that he was recommending an evaluation with a back specialist for Complainant’s condition; her status to return would be reevaluated; and her “shoulder symptoms are well controlled and is discharged at this time.” Regarding claim 2, S1 and S2 indicated that after Complainant’s reasonable accommodation case was closed, the Coordinator suggested it was reasonable to charge Complainant AWOL for her absence. Considering the Coordinator’s suggestion and the fact that Complainant had not worked for nearly eight months without providing medical documentation as requested, management decided to place her in AWOL starting August 10, 2020. The Agency stated that Complainant used all her annual and sick leave from December 20, 2019 through February 6, 2020; she was subsequently granted LWOP on February 7 - 29, 2020 (80 hours), March 2 - 26, 2020 (480 hours), and March 26 - August 7, 2020 (421 hours). Complainant indicated that she was in an approved LWOP status from March 4, 2020, through August 10, 2020. Complainant remained in AWOL since August 10, 2020. The AJ found no discrimination as Complainant alleged. Specifically, the AJ stated that Complainant did not establish that the Agency failed to provide her with a reasonable accommodation in that she failed to provide medical documentation the Agency requested showing that she was able to perform her position duty, i.e., examining patients physically. The AJ found: Complainant alleges only that she suffered from her inability to use her right arm. She has provided limited documentation to support having any disability, and all the documentation provided stated the treating physician would reassess in weeks to come. Despite repeated requests, Complainant failed to offer any medical documentation of a diagnosis of her condition, or a duration; i.e. whether it was temporary or permanent. She failed to sign a release authorizing the Agency to obtain medical information; and she failed to offer a release authorizing medical information to be disclosed even to the investigator in this case. The AJ further found: Complainant has not shown that she would be able to work from home as, by her own admission, she was unable to use a pen or computer on her own. Additionally, the permanent accommodation requested, telework, is one that Complainant is not qualified for as telework would require an increase in use of the computer. Further, as, part of her 2021004121 6 responsibilities as a [Primary Care Physician], Complainant is required to examine patients physically even as a telework clinician. Complainant stated she was unable to do so on March 4, 2020[,] and after that never provided any documentation that she was able to examine patients. Complainant refused to engage with the Agency on discussions regarding this issue by failing to provide medical documentation, therefore causing the Agency to close her case without a denial or approval. The Agency did not issue a final order and the AJ’s decision effectively became its final action. 29 C.F.R. § 1614.109(i). Complainant appeals from the Agency’s final order, contesting its finding of no discrimination. On appeal, Complainant submits numerous documents, including subsequent doctors’ statements. ANALYSIS AND FINDINGS 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 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Complainant must initially establish a prima facie case by demonstrating that Complainant 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, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021004121 7 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that a complainant was denied a reasonable accommodation, the complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). In the instant case, the record indicates that Complainant was hired as a Primary Care Physician, full-time, on March 3, 2019, subject to two-year probationary period. As a Primary Care Physician, Complainant’s essential duties included interviewing and examining patients, both in- person and virtual, documenting patient’s visits, and ordering consults, labs, and medications. Complainant indicated that due her shoulder injury, she was unable to lift her right arm and unable to perform physical examinations of her patients. She also indicated that she could only work from home, i.e., telework and telemedicine, 20 hours per week. To proceed with Complainant’s accommodation request, the Agency requested Complainant provide medical documentation to support her disability, including specifying a duration of her condition, and whether her telework and telemedicine, 20 hours per week, would effectively accommodate her medical condition. 2021004121 8 Complainant failed to provide such information. Complainant’s medical documentation provided to the Agency lacked sufficient information as requested to support a need for the requested accommodations. Specifically, the documentation Complainant provided did not indicate whether she could perform the essential functions of her position (i.e., in-person physical examination from home via telemedicine), a diagnosis of her condition (including medical testing or examination), or a duration (temporary or permanent) of her condition. It appears that Complainant’s doctors, recommended her to be reevaluated for her physical condition every six weeks, but did not indicate her condition to be permanent in nature as she maintained. The record indicates that the Agency accommodated Complainant by granting her requested LWOP since February 2020. The Agency indicated that Complainant was placed on AWOL on August 10, 2020, because she did not work for nearly eight months since she was hired in March 2019, and because she did not provide the medical documentation requested. After a review of record, we find that Complainant failed to show that the Agency denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Furthermore, we find that Complainant failed to provide sufficient medical documentation as requested by the Agency showing that she could in fact perform the essential functions of her position. Other than her mere arguments, Complainant failed to produce any evidence or medical justification to show that her teleworking/telemedicine, 20 hours weekly, would effectively accommodate her disability to perform the essential functions of her position. 29 C.F.R. §1630.9; see also Enforcement Guidance; Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020). We note that Complainant is not entitled to the reasonable accommodation which she prefers without showing a connection between the disabling condition and the requested accommodation. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 2019003392 (Aug. 25, 2022) (citing Gile v. United Airlines. Inc., 95 F .3d 492, 498 (7th Cir. 1996); Wiggins v. U.S. Postal Service, EEOC Appeal No. 01953715 (Apr. 22, 1997); and Metzenbaum v. Office of Personnel Management, EEOC Appeal No. 01986974 (Apr. 4, 2002)). Further, regarding her leave claims, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on a thorough review of the record, considering all statements submitted on appeal, we find no discrimination on the part of the Agency as alleged. CONCLUSION Accordingly, the Agency’s final action finding no discrimination is AFFIRMED. 2021004121 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021004121 10 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 December 5, 2022 Date