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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022001530 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001530 Hearing No. 430-2021-00492X Agency No. 2004-0652-2021103560 DECISION On January 26, 2022, 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 December 29, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked for the Agency as an Anatomic and Clinical Pathologist, Grade VM-15, in Pathology and Laboratory Medicine at an Agency medical center in in Richmond, Virginia. Complainant’s first-line supervisor was the medical center’s Chief Pathologist. 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 2022001530 On May 28, 2021, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability (major depression, severe anxiety, post-traumatic stress disorder) and in reprisal for EEO-protected activity (in 2020, Complainant filed a prior EEO complaint regarding racial discrimination and reprisal) when, on February 21, 2021, the Chief Pathologist denied Complainant’s reasonable accommodation request. After an investigation into the complaint, 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. Over Complainant's objections, the assigned AJ granted the Agency’s November 30, 2021 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on December 17, 2021. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal and through Counsel, Complainant argues that the AJ denied Complainant the opportunity to discover documents and testimony relevant to countering the Agency’s undue hardship defense asserted by the Agency in response to Complainant’s failure to accommodate claim. Next, Counsel for Complainant maintains that the AJ improperly relied on the Agency's functional statement for Complainant's position because that document was developed after Complainant had already filed his formal EEO complaint. Thereafter, Complainant asserts Complainant's requests did not cause the Agency undue hardship because the Chief Pathologist and a coworker who was also pathologist had been granted work limitations that Complainant had requested. Finally, Complainant argues that he requested disability accommodation in February 2021, but without reason, the Agency delayed providing Complainant formal notice of the decision on his request until June 2021. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. See Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 3 2022001530 We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has challenged the record as inadequate for lacking discoverable testimony and documents that show the Agency’s decision process in addressing his request for a reasonable accommodation. We find the record contains adequate explanation of the Agency’s position within statements and correspondence from the Chief Pathologist and the HR Specialist who served as Complainant’s Reasonable Accommodation Coordinator. On appeal, Complainant did not introduce new evidence which may have changed the AJ’s issuance of a decision without a hearing. Federal employers are required to provide reasonable accommodations for known physical and mental limitations of an otherwise qualified individual with a disability, unless the Agency can show that reasonable accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and 1630.2(p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability, pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). Here, it is undisputed that Complainant successfully showed that he is an individual with mental disabilities that are protected under the Rehabilitation Act. However, we also need to establish that Complainant was a “qualified individual with a disability.” 29 C.F.R. § 1630.2(m). An individual with a disability is “qualified” if he satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). Following a review of the record, we find that Complainant has not shown that he can perform some essential functions of his Pathologist position with or without a reasonable accommodation, cytology in particular. In so finding, we decline to rely on the Agency’s position description, which Complainant’s Counsel argues on appeal was developed by the Agency only after Complainant had already filed the present formal EEO complaint. Even so, we found the pathology duties which Complainant sought to avoid or have greatly reduced were essential functions of Complainant’s position. In other words, Complainant requested to be exempt from regular pathology duties that he had previously performed without limit. Specifically, Complainant requested to cease performing frozen services and the tumor board. Complainant also requested not to have to perform overlapping surgical pathology services and cytopathology services scheduled during the same workday. Additionally, Complainant requested his surgical duties and cytology duties be reduced so that he would not have to cover either assignment continuously over a workweek. 4 2022001530 Notwithstanding the Agency’s functional position description document, we find that the Agency had a reasonable expectation that Complainant and similarly situated pathologists perform those same duties however scheduled. We further find that the comparators whom Complainant had identified as having received reduced workloads and exemption from certain regular pathology duties were improper comparators. For example, one pathologist, unlike Complainant, worked only part-time and the other alleged comparator was the Chief Pathologist, who performed supervisory duties in addition to clinical pathology duties. The Chief Pathologist had Complainant scheduled to perform a week of tumor board and a week of frozen service. At the time of his initial request, Complainant was also scheduled to cover a week of cytology that was non-consecutive with surgical pathology duties. Rather than reject Complainant’s request outright, the Chief Pathologist had continued the interactive process required under the Rehabilitation Act and made Complainant a counter-offer of a slightly adjusted schedule where the Chief Pathologist would help cover on surgical pathology, while cytology duties that would otherwise be performed for a week would be rotated among Complainant and the other pathologists with cytology certification. Complainant explained his reasoning behind rejecting the Chief Pathologist’s proposed scheduling adjustment. He understood that the Agency’s proffered interim accommodation still required that he fully perform his duties albeit on reduced working hours. Complainant challenged the Agency’s efforts to accommodate him, arguing they were disingenuous and an aggravation of his mental health conditions. We disagree. The Agency has born the burden of establishing, through case-specific evidence, that the requested reasonable accommodation would cause it an undue hardship. U.S. Airways, Inc. v. Barnett, 535 U.S. 535 U.S. 391 (2002); Enforcement Guidance on Reasonable Accommodation. The Reasonable Accommodation Coordinator explained that Complainant’s desired accommodation would remove him from performing cytology, where he was needed as one of only three pathologists certified in that specialty. It was estimated that if Complainant were exempted from cytology duties as he requested, this would reduce provision of cytology services to the veterans and patients by thirty-three percent and thereby force the Agency to recruit and hire another cytology-certified pathologist to cover Complainant’s regular cytology duties. Factors to be considered in assessing undue hardship include the overall size of the Agency’s program, the type of the Agency operation and the nature and cost of the accommodation. 29 C.F.R. §1614.203(c)(3). Given the small number of pathologists on staff at the facility who were able to cover cytology and the difficulty of finding another certified specialist to cover Complainant’s cytology workload, we concur with the AJ’s finding that the Agency did not violate the Rehabilitation Act in handling Complainant’s request because he eventually rejected the Agency’s alternative offers and insisted that he was unable to otherwise perform essential duty functions of his position as an Anatomic and Clinical Pathologist. In closing, we remind Complainant that the Rehabilitation Act does not guarantee Complainant receive the accommodation of his choice, only that he receives an effective accommodation. 5 2022001530 Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); Enforcement Guidance on Reasonable Accommodation at Question 9. Complainant has failed to prove that the alternative accommodations proffered by Agency management would not have been effective. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s summary judgment 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). 6 2022001530 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). 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 29, 2023 Date