Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 20, 2015

0120120870 (E.E.O.C. Feb. 20, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120120870

Hearing Nos. 430-2009-00349X; 430-2010-00236X

Agency Nos. 2004-0565-2009100146; 2004-0565-2009103867

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
November 17, 2011 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Housekeeping
Aid at the Agency’s VA Medical Center in Fayetteville, North Carolina. Complainant was
demoted from a Prosthetics Purchasing Agent position to the Housekeeping Aid position in
January 2008. Complainant believed that the Housekeeping duties aggravated his physical
impairments and requested reassignment as a reasonable accommodation in September 2008.
Complainant was limited to lifting 40 pounds for 30 minutes; sitting for two hours per day;
standing for two hours per day; walking for one hour per day; climbing for 15 minutes per
day; kneeling for 30 minutes per day; bending and stooping for one hour per day; pulling or
pushing for one hour per day; and grasping for three hours per day. Further, Complainant
claimed that he could not work around the chemicals used by the Housekeeping staff. In
October 2008, while Complainant’s request was under review by the Reasonable
Accommodation Committee, the Chief of Environmental Management Services (Chief)
assigned Complainant temporary duties in accordance with his restrictions, including sitting at
a table in the main lobby and greeting visitors and patients. Complainant worked five hours
each day and was allowed to use any leave he may have had for the remaining time.
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Complainant subsequently learned that the Reasonable Accommodation Committee had denied
his request for a reassignment. In addition, the Reasonable Accommodation Committee
determined that Complainant could not perform the essential functions of the Housekeeping
position with or without an accommodation, and requested additional medical documentation to
determine what Complainant could and could not do at the VA Medical Center. Further,
Agency management asked Complainant whether he wanted the Agency to conduct a
nationwide search for vacant positions in which to reassign him; however, Complainant
declined stating he wanted to stay in the area. Additionally, Agency management observed
Complainant away from his assigned area at times and using his cell phone. Complainant had
also not submitted the requested updated medical documentation. As a result, Agency
management placed Complainant on Authorized Leave on November 3, 2008, while the
Agency searched for work he could perform within his restrictions based on the documentation
provided. Complainant was out on Authorized Leave until June 26, 2009. The leave was
unpaid until January 2009.

On June 29, 2009, the Agency ordered Complainant to return to work and placed him in a
light duty assignment performing a list of limited duties pending his submission of additional
documentation. On July 10, 2009, Complainant requested save-pay retention at the GS-7
level; however, the Assistant Chief of Human Resources (HR1) informed Complainant that he
was not eligible for save-pay retention based on his prior demotion. In addition, upon his
return, the Chief directed Complainant to code his time off on Authorized Absence in the
Agency’s time and attendance system as Leave Without Pay (LWOP). Complainant objected
believing that labeling his leave as LWOP would indicate that his leave was voluntary.
Complainant’s leave was coded as Authorized Absence. In addition, on July 23, 2009, the
Chief instructed Complainant to wear his housekeeping uniform while performing his light
duty assignment. Complainant did not believe it was appropriate as no other housekeeping
employee was required to wear their uniform when not performing housekeeping duties.

Sometime in August 2009, Complainant was sent to a medical facility in Pinehurst, North
Carolina for a functional capacity exam related to his reasonable accommodation request.
Complainant submitted a request for travel pay, but a decision on his request was delayed.
Complainant complained to the Chief, and the matter was escalated to the Associate Director
(AD). AD subsequently approved the travel pay, and Complainant was reimbursed.

On June 15, 2009, Complainant was indicted on charges of “possession with intent to
manufacture, sell or deliver a controlled substance (cocaine), keeping and maintaining a
vehicle that was used for keeping and selling a controlled substance (cocaine), and driving a
motor vehicle with a driver's license that was revoked and suspended.” On September 9,
2009, Complainant was placed on Authorized Absence and issued a proposed indefinite
suspension based on the indictment. On September 28, 2009, the Agency upheld the indefinite
suspension based on the alleged criminal conduct. Complainant alleged that he attempted to
log on to an Agency computer and was unable to gain access at some point in September 2009.
Complainant was informed that his computer access had been terminated since he was
suspended and a petition for his removal from Agency employment had been initiated.
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On January 23, 2009, Complainant filed an EEO complaint (Agency No. No. 2004-0565-
2009100146) alleging that the Agency discriminated against him on the bases of disability and
in reprisal for prior protected EEO activity when on October 1, 2008, management failed to
provide him with safe working conditions and denied his request for a reasonable
accommodation.

On October 13, 2009 (and subsequently amended), Complainant filed a second EEO complaint
(Agency No. No. 2004-0565-2009100146) alleging that the Agency discriminated against him
and subjected him to a hostile work environment on the bases of disability and in reprisal for
prior protected EEO activity as evidenced by multiple incidents including, inter alia,
management placed him on administrative leave; management denied his requests for
reasonable accommodation; management failed to provide him with pay retention when he
accepted a light duty Survey Clerk position; management directed him to record his
administrative leave as leave without pay (LWOP) in the computerized time and leave
database; management directed him to wear his housekeeping uniform while working in
Customer Service as a Survey Clerk; management requested termination of his computer
access; management denied him travel pay; management placed him on authorized absence;
and he did not receive a copy of his SF-50s documenting the time he worked in Customer
Service and his indefinite suspension.1

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI1 and ROI2) and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ
consolidated the two complaints but then remanded them to the Agency for a FAD after
Complainant failed to comply with the AJ's April 1, 2011 Order to respond to the Agency's
discovery requests. Consequently, the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency initially determined that Complainant failed to show that the Agency
denied him reasonable accommodation as Agency management took action to accommodate his
disability, and Complainant failed to adequately participate in the interactive process.
Complainant had been working as a Housekeeping Aid approximately nine months prior to
requesting reasonable accommodation. Complainant requested reassignment as an
accommodation and provided management with medical documentation that served as their

1 The Agency dismissed several additional claims raised in both complaints. For example, the
Agency dismissed a claim related to a January 2008 demotion as untimely brought to the
attention of an EEO counselor and a claim that Agency management “inappropriately used”
patient information in violation of the Health Insurance and Portability and Accountability Act
for failure to state a claim. Upon review of the record, the Commission finds no basis to
disturb the Agency’s dismissal and AFFIRMS their dismissal. These claims will be considered
as background evidence, however, in support of Complainant’s overall hostile work
environment claim.
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first notice that he had any kind of physical restrictions. After receiving the documentation,
management provided Complainant temporary duties in accordance with his physical
restrictions, including assigning him to an open area to greet patients. Complainant failed to
remain in his work area for extended periods of time. Meanwhile, the Reasonable
Accommodation Committee reviewed Complainant’s request for accommodation and
determined he could not perform the essential functions of his Housekeeping Aide position
with or without an accommodation. The Committee requested that Complainant provide
additional documentation to assist in finding him a position within his restrictions. The
Agency had no vacant positions at or below Complainant’s grade level at the facility, and
Complainant declined management’s offer to do a nationwide search. As a result, the Agency
placed him on Authorized Absence until it could find duties he could perform within his
restrictions.

Next, the Agency determined that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. First, as to his save pay/pay retention claim, the Agency found that
Complainant returned to work in July 2009, in a light duty assignment with duties as a Survey
Clerk. Management stated that Complainant would not have been eligible for “save pay” or
pay retention because he was assigned to a light duty assignment and not an actual vacant
position; and he received the same pay as he did when he was assigned to duties as a
Housekeeping Aid. Regardless, management confirmed that “save pay” or pay retention is
only appropriate where an employee’s description has been downgraded due to a
reclassification.

As to his leave in the Agency’s time and attendance system, management affirmed that
Complainant needed to record his leave as LWOP because Complainant’s leave was appearing
as one of the many "exceptions" in the Agency’s system and being charged to the facility by
the Defense Financial Accounting System. Management explained that it needed to clear the
exceptions and it began asking employees to code their leave according to the type of leave
they were taking. Complainant was an employee with no leave keyed in the system; therefore,
management requested that he input the correct leave.

Regarding the termination of his computer access, management maintained that Complainant
had been put on Authorized Absence due to placement on an indefinite suspension. The
Information Technology department automatically terminates the computer access of any
employees placed in an authorized absence status pending a decision on a proposed adverse
action. With respect to the delay in the reimbursement for travel pay, the Agency noted that
the facility offered to let Complainant use a government vehicle, at less cost to the
government, to travel to his evaluation, which Complainant inconveniently scheduled at a
location over an hour away from the facility. Complainant chose to request travel pay due to a
suspended license.

Finally, management confirmed that Complainant was placed on Administrative
Leave/Authorized Absence because he had been charged with and indicted for possession of
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and intent to distribute drugs sometime in December 2008. The Agency noted that
Complainant appeared to have been found guilty of these or similar charges.

The Agency concluded that Complainant failed to show that any of the alleged incidents were
based on discriminatory or retaliatory animus. As a result, the Agency found that Complainant
had not been subjected discrimination, reprisal, or a hostile work environment as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency has violated and continues to violate his
rights. In addition, Complainant raises many arguments unrelated to the instant complaint.
Complainant alleges that he has established a prima facie case of discrimination and Agency
misconduct. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
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. In order to establish entitlement to coverage under the Rehabilitation Act,
Complainant must prove that he is a qualified individual with a disability. A qualified
individual with a disability is an “individual with a disability” who satisfies the requisite skill,
experience, education and other job related requirements of the employment position such
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). For purposes of analysis, the
Commission assumes, without so finding, that Complainant is an individual with a disability
within the meaning of the Rehabilitation Act.

In the instant case, Complainant contends that the Agency denied his requests for reasonable
accommodation. The record reveals that once Complainant requested reasonable
accommodation in September 2008, the Agency assigned him temporary duties within his
restrictions, including greeting visitors and patients in the front lobby, while the Reasonable
Accommodation Committee reviewed his request. ROI1, Ex. B-2, at 14-16. The Reasonable
Accommodation Committee subsequently determined that Complainant could not perform the
essential functions of his Housekeeping position. ROI2, Ex. C-2. Management asked
Complainant if he wanted the Agency to conduct a nationwide search for a position for him
since the Agency did not have a vacant, funded position within his restrictions in which to
reassign him, and he declined. ROI1, Ex. B-2, at 12-13. As a result, the Agency placed
Complainant on Authorized Absence in November 2008, while attempting to find work for him
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within his restrictions. Id.2

Complainant was returned to work in July 2009, with a light duty
assignment performing a limited set of duties within his restrictions. ROI2, Ex. B-4, at 21-22.
As such, the record reflects that management attempted to “make work” for Complainant by
unofficially cobbling together duties that were within his restrictions in October 2008, but the
Rehabilitation Act does not require the Agency to make work for employees. See Complainant
v. U.S. Postal Serv., EEOC Appeal No. 0120111093 (Sept. 23, 2013); Genereux v. U.S.
Postal Serv.

In addition, because Complainant did not identify any accommodations that would have
enabled him to perform the essential functions of his position, the only possible
accommodation in this case would have been to reassign Complainant to another position.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (Enforcement Guidance), No. 915.002 (revised Oct. 17,
2002);
, EEOC Appeal No. 0120054254 (Jan. 30, 2007) (employer not required to create
a job for disabled employee or transform its temporary light duty assignments into permanent
jobs to accommodate an employee's disability).
see also Interpretive Guidance on Title 1 of the Americans with Disabilities Act,
Appendix, to 29 C.F.R. Pan 1630.2(o). Complainant has an evidentiary burden in such
reassignment cases to establish that it is more likely than not (a preponderance of the evidence)
that there were vacancies during the relevant time period into which he could have been
reassigned. Complainant can establish this by producing evidence of particular vacancies. See
Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). In the
alternative, Complainant need only show that: (1) he was qualified to perform a job or jobs
which existed at the agency, and (2) there were trends or patterns of turnover in the relevant
jobs so as to make a vacancy likely during the time period.

Id.
In this case, Complainant appears to only have sought a reassignment to a GS-7 or equivalent
position, which would have been a promotion from his Housekeeping Aid position. ROI1, Ex.
B-4, at 18. The Commission notes that reassignment does not include giving an employee a
promotion. See Enforcement Guidance on Reasonable Accommodation. An employee seeking
reassignment must compete for any vacant position that would be considered a promotion. Id.;
see also Guajardo v. Dep't of the Army
There is no evidence in the record that there was a vacant, funded position for which
Complainant was qualified to be reassigned during the relevant time period. Thus, the
Commission concludes that the Agency properly found that Complainant failed to show that he
was denied a reasonable accommodation.
, EEOC Appeal No. 0320120016 (July 9, 2012)
(finding that reassignment from WG-6 to GS-1712-07 constituted a promotion and
reassignment does include giving an employee a promotion pursuant to the Rehabilitation Act).

2 Complainant was placed on Authorized Absence without pay from November 2008 through
December 2008, and with pay from January 2009 through June 2009. ROI2, Ex. B-1, 22-23;
ROI, Ex. C-1, at 18-52.
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Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on his protected classes, he was subjected to a hostile
work environment. Complainant has cited several incidents where Agency management took
actions which seemed adverse or disruptive to him including, inter alia, he did not receive pay
retention during his light duty assignment; he was directed to record his Authorized Absence
leave as LWOP; he was instructed to wear his housekeeping uniform while working in
Customer Service; he was denied travel pay; and his Agency computer access was terminated.
The Commission finds that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory or retaliatory animus. For example, as discussed above, Complainant was
placed on Authorized Absence because he could not perform the essential duties of his
position, and the facility had no work within his restrictions at the time. When he returned in
July 2009 to a light duty assignment, Complainant was not eligible to receive pay
retention/saved pay because his position and pay did not change and he did not occupy a vacant
position. ROI2, Ex. B-4, at 23-25. With respect to his Authorized Absence leave, the Chief
simply directed him to code his leave in the system as he had exhausted his sick leave and was
listed as an “exception” in the system. ROI2, Ex. B-2, at 24. The Chief stated that he gave
Complainant the chance to input annual leave in the system to cover the unpaid absence and
Complainant refused. Id. at 25-27. As to the travel pay claim, the Chief noted that it was
delayed because Complainant was initially offered to take a government vehicle to his
appointment; however, he was unable to because he had issues with his driver’s license. Id. at
37. Complainant was later fully reimbursed. Regarding the uniform claim, the Chief
confirmed that he instructed all of his employees to wear their uniforms no matter where they
were working. Id. at 44. Finally, as to the September 2009 Authorized Absence and the
subsequent termination of his computer access, the Chief stated that Complainant had been
placed on (paid) Authorized Absence again pending the resolution of his criminal charges, and
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his computer access was terminated because there was no need for him to be at the facility or
work during that time. Id

. at 35.
The Commission concludes that, considering the totality of the alleged incidents and the record
evidence, the record does not show that the Agency subjected Complainant to a discriminatory
or retaliatory hostile work environment. The Commission finds that Complainant failed to
present any evidence that discriminatory or retaliatory animus motivated the incidents at issue.
Finally, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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.
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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

Date
February 20, 2015