Robert Bourque, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 29, 2010
0120080677 (E.E.O.C. Oct. 29, 2010)

0120080677

10-29-2010

Robert Bourque, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Robert Bourque,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120080677

Agency No. 200H-0518-2007-100357

DECISION

On November 19, 2007, Complainant filed an appeal from the Agency's October 18, 2007, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUE PRESENTED

Whether Complainant established that Agency discriminated against him based on sex, age, disability and reprisal for engaging in prior EEO activity when he was reassigned to a rotating day tour and when his request for a reasonable accommodation was denied.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-6 Licensed Practice Nurse (LPN) at the Bedford, Massachusetts Medical Center.

On December 14, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability, age (born in November 1950), and in reprisal for prior protected EEO activity when on November 6, 2006, management took him off light duty status and reassigned him from a day tour to a rotating day tour, including weekends and holidays.

Complainant further alleged that the Agency subjected him to discrimination on the basis of disability when on December 13, 2006, management refused to reasonably accommodate his disability.1

In an investigative affidavit, Complainant stated that he engaged in prior EEO activity through an EEO complaint that was settled in March 2006. Complainant also stated that that he was injured (herniated disc, neck and shoulder) at work in 1998. He stated that he sought medical treatment for his injury from 1998 through 2002 and worked on light duty status from 1998 until November 2006. Complainant further stated that he was reinjured on the job in 2002 and 2006 and could not perform any heavy lifting or perform patient care duties. He stated that on February 1, 2006, his healthcare provider indicated on an Office of Workers' Compensation Programs (OWCP) form that he was restricted from reaching over his shoulder, pushing, pulling, and lifting more than twenty pounds. Complainant stated that his OWCP claim was accepted for the following conditions: shoulder sprain/strain, neck sprain, bulging discs, and degenerative disk disease.

He stated that on November 6, 2006, he had a meeting with the Assistant Chief of Nursing (Assistant Chief). He stated that the Assistant Chief did not accept his physician's medical "notes" regarding his condition and gave him a form to fill out regarding requesting a reasonable accommodation. He stated that he delivered the form to his physician's office for completion on November 8, 2006, but the physician did not complete and return the form.

Complainant further stated that the Assistant Chief informed him that she would not accept light duty notes from his medical provider. He stated that the Assistant Chief told him that if he did not submit the (completed) reasonable accommodation form, he would be removed from light duty status and returned to full duty with rotations. Complainant also stated that he worked the day tour from March 2006 until November 2006. Complainant identified a disabled female co-worker (C1) born in December 1951 as a similarly situated individual who was not taken off light duty status or required to request a reasonable accommodation to remain on light duty.

Complainant also stated that he did not request a reasonable accommodation from the Agency. "I never did [request accommodation] because I already had that modified duty that was approved through work; which I'm entitled to under the union contract." Exhibit B-1, pp. 47, 48.

The Assistant Chief stated that on November 6, 2006, Complainant was assigned to work days and rotate because he had been on restricted or light duty status for over one year, and Management asked Complainant continuously for more definitive medical documentation to determine how long Complainant's physical limitations would last. She stated that she knew that Complainant was seeing his physician, yet Complainant did not supply the requisite medical documentation. The Assistant Chief stated that Complainant's physician's notes were always too vague to be helpful in determining what Complainant's work status should be. She stated, "I've got many [doctor notes] here that just state, 'unable to lift more than ten pounds, no pulling, lifting due to shoulder pain,' that's all we got." B-2, pp. 34-36. She stated that on three or four occasions, Complainant was provided with a packet with all the forms he needed to complete and submit from his healthcare provider in order to request a reasonable accommodation.

The Assistant Chief stated that Complainant did not provide the requisite medical information that was requested of him, so she took him off light duty status and assigned him to the day tour rotation. She stated that Complainant then maintained that he was attempting to obtain the medical information from his medical provider but was having a difficult time obtaining it.

The Assistant Chief further stated that light duty is viewed as a temporary arrangement which should not last more than a few days, and if an employee's medical condition is anticipated to last more than a short period of time, management provides the employee a packet to request a reasonable accommodation. She stated that during the November 6, 2006 meeting with Complainant, he was provided with a packet to request a reasonable accommodation. She stated that the packet contained a medical form that he and his medical provider were required to complete, but Complainant never returned the packet. She stated that Complainant was never denied a reasonable accommodation; instead, he never requested a reasonable accommodation.

The Assistant Chief stated that C1 was a GS-6 LPN who provided detailed medical documentation to management regarding her medical condition. She further stated that because of the nature of C1's condition, she applied for disability retirement, which was approved just prior to her death.

The Assistant Chief stated that that she was not aware of Complainant's prior EEO activity but recalled resolving an issue with Complainant through mediation.

The Human Resources Specialist (female, born in 1949, not disabled, EEO activity) stated that the applicable guidelines were followed, and Complainant was not discriminated against when his tour of duly was changed on November 6, 2006. She stated that Complainant was provided with reasonable accommodation paperwork so that he could request a reasonable accommodation with specific medical documentation that could assist the Agency in determining whether he was a qualified individual with a disability.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the decision concluded that Complainant failed to establish a prima facie case of sex, disability, or reprisal discrimination. The decision further determined that Complainant failed to show that the Agency's articulated reasons for its actions were pretext for unlawful discrimination. Additionally, the decision concluded that the Agency did not deny Complainant a reasonable accommodation.

CONTENTIONS ON APPEAL

On appeal, Complainant argued that the Agency improperly found no discrimination. He maintained that he established a prima facie case of reprisal because he engaged in EEO activity contemporaneously with the Agency's alleged actions in this case. He further stated that the Agency retaliated against him when it failed to sign him up for CPR training and scheduled his shifts to be only eight hours apart. The Agency requested that we affirm its final decision.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

Disparate Treatment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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). For instance, to establish a prima facie case of disparate treatment on the bases of sex and age, Complainant must show that (1) he is a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009).

To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

Once complainant has established a prima facie case, the burden of production 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).

Complainant is a male born in 1950. Complainant maintained that C1 was treated more favorably than he because she was not removed from light duty. However, the record revealed that C1 provided the requisite detailed medical documentation to management regarding her medical condition, whereas Complainant did not. Thus, C1 and Complainant were not similarly situated. Moreover, C1 is only about one year younger than Complainant, which is not substantially younger than Complainant. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (holding that in age cases, the comparative need not be outside the protected group, i.e., under 40, but must be substantially younger than Complainant).2 Complainant has not provided any evidence from which an inference of age or sex discrimination can be raised. Therefore, we find that Complainant failed to establish a prima facie case of age or sex discrimination.

The record reveals that Complainant's previous EEO claim (Agency Number 200H-0518-2006100708) was initiated on December 13, 2005 and settled by a settlement agreement on March 13, 2006. Complainant contended on appeal that he engaged in EEO activity throughout the relevant time period because he told management that his removal from light duty violated his physician's notes and the EEO settlement agreement. It is clear that during the relevant time period, Complainant maintained to management that he was entitled to stay on light duty because of his medical condition and the EEO settlement agreement. Requesting a reasonable accommodation is protected EEO activity. See EEOC Compliance Manual, Section 8, "Retaliation" (May 20, 1998), at 8-6. Therefore we find that there is a temporal nexus between Complainant's EEO activity and the Agency's actions. Moreover, removing an employee from light duty is an action that would be reasonably likely to deter EEO activity. Consequently, we find that Complainant established a prima facie case of reprisal.

Nonetheless, we further find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Assistant Chief stated that Complainant was removed from light duty status and reassigned from a day tour to a rotating day tour because he failed to submit updated medical documentation showing his need to remain on light duty.

Complainant also alleged on appeal that the Agency retaliated against him when it failed to sign him up for CPR training and scheduled his shifts to be only eight hours apart. However, these matters are not accepted claims in the instant complaint. The Commission will not accept new claims raised for the first time on appeal. See EEO Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999); Kelly v. Dep't of Educ., EEOC Request No. 0120083547 (April 22, 2010).

Thus, we find that Complainant failed to prove that the Agency's articulated reasons were pretext for unlawful discrimination. Consequently, we find that Complainant failed to prove that he was subjected to disparate treatment on the bases of age, sex, or reprisal.

Reasonable Accommodation

Although Complainant inexplicably disavowed that he requested a reasonable accommodation in his affidavit statement, the gravamen of Complainant's complaint is that he was denied a reasonable accommodation. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9. As a threshold matter in a case of disability discrimination under a failure to accommodate theory, the complainant must demonstrate that he is an "individual with a disability."

For purposes of analysis, we assume arguendo that Complainant is a qualified individual with a disability. The record reveals that on November 6, 2006, Complainant submitted a very brief one-sentence note from his physician that stated that he was "unable to lift more than 10lbs, no pulling or pushing due to shoulder pain."3 C-2, p. 2. Complainant's medical documentation from 2005 is similarly scant. This medical documentation does not reveal the extent of Complainant's medical condition or its expected duration. When a complainant's medical documentation does not reveal the duration of his condition, the Agency is entitled to request updated medical documentation to verify Complainant's continuing need for accommodation after a period of time. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 at question 6 (March 1, 1999) (Guidance). Complainant argued that he was entitled to remain on light duty in perpetuity because he had been on light duty for approximately eight years, but the Agency was entitled to request updated information to reassess Complainant's current need for a reasonable accommodation.

The record reveals that Complainant failed to provide the Agency with the requested medical documentation, although the Agency provided him with the requisite medical documentation packet on at least three occasions. The Agency's Human Relations Specialist stated that if Complainant had provided the Agency with the requested information, it would have been able to assess whether Complainant needed a reasonable accommodation. In light of Complainant's failure to submit the requested information, we find that Complainant failed to show that the Agency failed to reasonably accommodate his disability.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final decision for the reasons set forth in this decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__10/29/10________________

Date

1 We note that in a letter dated January 24, 2007, the Agency dismissed two additional claims raised by Complainant. However, we decline to address these matters herein because Complainant does not contest their dismissal on appeal.

2 While there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years. See Hammersmith v. Social Security Administration, EEOC Appeal No. 01A05922 (March 6, 2002).

3 The record also contains a Disability Certificate dated August 15, 2006, in which Complainant was certified to be restricted from lifting over 20 pounds, overhead lifting, and pulling. C-2, p. 3

??

??

??

??

2

0120080677

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120080677