[Redacted], Marcel M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 28, 2023

Appeal No. 2021004271 (E.E.O.C. Mar. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcel M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004271 Agency No. 200H-0503-2020100632 DECISION On July 22, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 23, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Peer Specialist, GS- 0102-09, at the James E. Van Zandt Medical Center in Altoona, Pennsylvania. He was directly supervised by the Acting Mental Health Social Work Supervisor (Supervisor), who in turn reported to the Chief of Mental Health (Chief). See Report of Investigation (ROI) at 86. As a Peer Specialist, Complainant served as a peer and role model for veteran patients receiving mental health treatment. Id. at 235-240. He previously served in the military and has been diagnosed with posttraumatic stress order (PTSD). Id. at 88. On September 20, 2019, Complainant had an encounter with a patient. ROI at 77, 117, and 599. According to Complainant, the patient physically assaulted him from behind. Id. 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. 2021004271 2 After Complainant reported the incident, management called police to initiate an investigation. Id. Based on witness testimony and security camera footage, the police investigation found no evidence of criminal wrongdoing and concluded that Complainant and the patient had engaged in mutual horseplay. Id. at 152 and 390-91. Complainant subsequently met with the Supervisor and Chief on September 25, 2019, to discuss the incident. During the meeting, the Chief issued Complainant a no-contact order, instructing him to stay away from the patient. ROI at 354. The no-contact order warned Complainant that he could face disciplinary action if he failed to comply with the order. Id. Complainant claimed that he verbally asked the Supervisor and Chief for reasonable accommodations because the incident had triggered his “combat PTSD” and exacerbated his PTSD symptoms. Id. at 89-90 and 338. Complainant did not specify what accommodations he sought. Complainant also recalled that he asked the Supervisor and Chief during the meeting to “put a behavioral flag on the patient,” which would require the patient to be escorted by police throughout the facility; however, they refused to grant his request. Id. On September 30, 2019, Complainant contacted the Chief by email and informed her that while he intended to comply with the no contact order, he still did not feel safe, as he and the patient were on the same floor almost every day. ROI at 342. Complainant again asked the Chief to flag the patient’s name in the Agency’s system. Complainant also inquired as to whether the Agency was taking any steps to protect him from the patient. Id. Complainant concluded his email by stating, “I’m requesting an accommodation, so I’m protected.” Id. The Chief responded to Complainant’s email and asked to discuss the matter with Complainant. Id. Later that day, Complainant reiterated the same concerns to the Supervisor. ROI at 341-42. In his email, Complainant informed the Supervisor that he “would like to have a suitable work environment and accommodations due to this no contact written statement by [the Chief].” Id. Within a week of Complainant’s request, the Supervisor informally granted Complainant’s request for a suitable work environment and moved Complainant to a basement office, where Complainant would have limited contact with patients. Id. at 134. The Supervisor also allowed Complainant to take liberal leave as an accommodation. Id. According to the Supervisor, Complainant’s request was not processed formally as a request for reasonable accommodation because “he verbalized that [the provided accommodation] was acceptable.” Id. On October 9, 2019, Complainant met with the Chief to inform her that he had filed the paperwork to flag the patient’s name for disruptive behavior. ROI at 115. According to Complainant, the Chief told him during the meeting that she was not going to flag the patient because she did not feel that the patient had engaged in disruptive behavior. Id. The facility’s Disruptive Behavior Committee ultimately declined Complainant’s request to flag the patient because they did not find the patient’s behavior to be disruptive. ROI at 162. After Complainant informed the Chief that his PTSD was being exacerbated by these ongoing issues, the Chief immediately relieved him of his direct patient care duties pending the outcome of a factfinding investigation and reassigned him to a temporary position that did not require him to interact with patients. Id. at 152 and 355. 2021004271 3 On October 10, 2019, Complainant began his temporary position. Complainant recalled that he met with the Chief later that day and verbally asked the Chief to allow him to work from home, as his “combat related conditions were exacerbated.” ROI at 339. Complainant also recalled that he verbally asked the Chief to relocate him away from the facility. Id. at 90. According to Complainant, the Chief never addressed these requests. Id. at 339. Due to Complainant’s dissatisfaction with management’s handling of his requests, Complainant initiated the informal EEO counseling process on November 4, 2019. He then contacted the Medical Center’s Human Resources (HR) Office on or around December 18, 2019, to request reasonable accommodation. ROI at 343-44. In response to Complainant’s request, HR asked Complainant to fill out VA Form 857a (Written Confirmation of Request for Accommodation) to formalize his request. Id. Complainant submitted the form on December 20, 2019. Id. at 638. He sought the following accommodations: 1. Relocation to the State College Community Based Outpatient Clinic (CBOC). 2. Reimbursement for all leave time since September 20, 2019. 3. Paid medical leave up to six months that may be utilized up to December 2023. 4. Paid relocation expenses and paid leave to relocate that may be utilized up to December 2023. 5. Compressed schedule 4/10s. 6. Remote access to all meetings. 7. Company vehicle to drive to the State College CBOC. 8. A new Licensed Clinical Documentation Supervisor from the State College CBOC that conducts his yearly appraisals. 9. Work from home as needed. ROI at 60. After receiving Complainant’s Form 857a, HR informed Complainant that it would begin the interactive process by scheduling a meeting with him. ROI at 343. HR then asked Complainant for medical documentation to substantiate his need for accommodations and subsequently met with him on January 2 and 10, 2020 to discuss his request. ROI at 605-606 and 620. Complainant provided the requested medical documentation to the Agency on January 10, 2020. Id. at 334-35. The submitted documentation indicated that Complainant needed to be relocated to a new “therapeutic work environment” because his “combat conditions” had been exacerbated due to a hostile work environment. Id. Complainant also submitted medical documentation dated October 18, 2019, that indicated that Complainant needed to withdraw from his academic classes at the Agency, as his PTSD had disrupted his sleep and impacted his ability to concentrate. Id. at 366. The Agency, however, deemed the submitted documentation to be incomplete and insufficient, as Complainant’s physicians did not specify the nature, severity, and duration of his impairment. Id. at 635. Complainant subsequently filed a formal EEO complaint on January 24, 2020, alleging that the Agency discriminated against him on the basis of disability (mental) when: 2021004271 4 1. Between September 25, 2019 and January 1, 2020, Complainant was denied the reasonable accommodation interactive process, which was in effect a de facto denial of his requests for accommodation. 2. Since meeting with HR on January 2 and 10, 2020, Complainant’s requests for accommodation have not been approved. In the weeks following Complainant’s EEO complaint, the Agency repeatedly asked Complainant to provide additional medical documentation to substantiate the nature, severity, and duration of the impairment; however, Complainant failed to submit the requested documentation. ROI at 187. After the internal factfinding investigation failed to confirm Complainant’s version of events, the Chief restored Complainant’s direct patient care duties on April 7, 2020. Id. at 152 and 367. On June 10, 2020, Complainant informed the Agency that “due to the ongoing adverse matters,” he decided to transfer to another medical center to remove himself from the environment. Id. at 628. The reassignment became effective on June 15, 2020. Following his transfer, Complainant amended his EEO complaint to include the following claim: 3. Whether Complainant was subjected to discrimination based on disability (mental) when the week prior to June 15, 2020, he was constructively reassigned when he was compelled to take another position at another Agency medical center due to his reasonable accommodation requests not being effectuated. During the EEO investigation, Complainant alleged that the Agency discriminated against him by repeatedly refusing to engage in the interactive process and failing to consider whether alternate accommodations could be provided. The facility’s Local Reasonable Accommodation Coordinator (LRAC), however, disputed Complainant’s allegation and maintained that the Agency did in fact accommodate Complainant by informally reassigning him to a basement office with limited patient contact and ultimately removing Complainant from all direct patient duties. ROI at 186-90. The LRAC emphasized that the Agency did not deny Complainant’s December 2019 request outright and was waiting for Complainant to submit adequate medical documentation. Id. at 191 and 198. The Supervisor added that while the management was amenable to Complainant’s request for a compressed schedule, Complainant’s other requests constituted an undue hardship for the Agency. Specifically, she explained that Complainant’s request for paid medical leave, paid sick leave, relocation reimbursement, and a company car, imposed significant financial burdens on the Agency that were untenable. She also explained that the State College CBOC did not have any vacant, funded positions for a Peer Specialist and emphasized that the Altoona medical center was providing peer support services for the State CBOC once a week. The Supervisor further emphasized that the facility did not have the staffing to cover Complainant’s absence on an ongoing basis, as it did not have the authority to hire a replacement for Complainant. ROI at 139. 2021004271 5 Following the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In issuing the decision, the Agency reframed the three claims that Complainant had raised into the following claims of disability discrimination when Complainant was: 1. denied a reasonable accommodation from September 25, 2019, and onward, and 2. subjected to “constructive discharge” on or about June 15, 2020. For claim 1, the Agency determined that Complainant requested reasonable accommodation on December 30, 2019, and ultimately found that Complainant was not entitled to reasonable accommodation because he failed to submit adequate medical documentation. Furthermore, the Agency found no evidence that the facility contributed to the delay and/or breakdown of the interactive process. As for claim 2, the Agency found that Complainant’s constructive reassignment/discharge claim was without merit because the record failed to show that the Agency was responsible for delaying or denying Complainant’s request for reasonable accommodation. In finding no discrimination, the Agency emphasized that the delay in processing Complainant’s request for reasonable accommodation was attributable to his failure to provide adequate medical documentation. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant vehemently disputes the Agency’s final decision and maintains that the Agency improperly determined that the date of his reasonable accommodation request was December 30, 2019. To the contrary, Complainant argues that he requested reasonable accommodation “over and over again,” prior to December 30, 2019, including by email on September 30, 2019; however, the Agency never acknowledged his requests. Furthermore, Complainant asserts that the Agency is responsible for the delays and breakdowns in the interactive process. In support of his contention, Complainant notes that HR asked him for the first time on December 18, 2019, to fill out a Form 857a and waited until late December 2019 to initiate the interactive process. Complainant asserts that the Agency exceeded 70 days to initiate the interactive process. He contends that the Agency should have granted the requested accommodations, as he provided medical documentation to the Agency in support of his requests for reasonable accommodation. Complainant also characterizes the two no-contact orders as “cheap shots” by management, as management threatened to discipline him even though he was the one who had been assaulted by the patient. He argues that the no-contact orders created a hostile work environment, which ultimately forced him to transfer to another facility. 2021004271 6 The Agency did not submit any arguments on appeal. STANDARD OF REVIEW 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 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (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”). We note that the Agency’s final decision properly reorganized Complainant’s claims into two issues: 1) denial of reasonable accommodation and 2) constructive discharge. ANALYSIS AND FINDINGS 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) and (p). For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. part 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. An agency’s failure to engage in the interactive process, however, does not automatically constitute a violation of the Rehabilitation Act. Rather, liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the individual with a disability to perform the essential functions of the job. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002) (although agency cannot be held liable solely for failure to engage in interactive process, it can be held liable where failure to engage in process resulted in failure to provide reasonable accommodation), req. for recons. den., EEOC Request No. 05A30114 (Jan. 9, 2003). Protected employees are entitled to reasonable accommodation, but they are not necessarily entitled to accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). 2021004271 7 While we are certainly mindful of Complainant’s arguments in claim 1, we find that the Agency effectively accommodated Complainant’s September 2019 request for a suitable work environment by promptly moving him to a basement office to limit his contact with patients, allowing him to take liberal leave, and ultimately reassigning him to a temporary position, without direct patient care duties, during the pendency of the internal factfinding investigation. We recognize that following the internal factfinding investigation, the Agency directed Complainant to resume his full duties, including direct patient care; however, we find that the record persuasively shows that it would be an undue hardship for the Agency to allow Complainant to continue his temporary non-patient care duties on a permanent basis. As for his verbal requests for accommodation on October 10, 2019, we find no persuasive evidence to corroborate Complainant’s claim. With regard to his December 2019 request, we find that the Agency was not required to grant Complainant’s requested accommodations or consider alternate accommodations, as the record shows that Complainant failed to submit adequate medical documentation. See Josefina F. v. U.S. Postal Serv., EEOC Appeal No. 2020000206 (June 16, 2021) (finding that complainant was not entitled to reasonable accommodation because she failed to submit adequate medical documentation to explain the nature of her impairment and her associated limitations). As to claim 2 as identified by the Agency’s final decision, we also agree with the Agency that Complainant failed to show that he had been subjected to intolerable working conditions. For the purposes of our analysis, we view Complainant’s allegation that the Agency’s actions compelled him to accept a position at another Agency facility under the constructive discharge paradigm. The central question in such cases is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As we find no persuasive evidence showing that the Agency unlawfully denied Complainant’s requests for reasonable accommodation, we conclude that Complainant’s transfer to another facility was not based on intolerable working conditions. In finding no discrimination, we also considered whether the Agency’s threat to discipline Complainant if he failed to comply with the no-contact order adversely affected his work environment; however, we ultimately conclude that the Agency’s actions did not make the work environment so intolerable that Complainant was compelled to transfer. 2021004271 8 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 decision. 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. 2021004271 9 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). 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 March 28, 2023 Date