Felicidad S.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 14, 2016

0120140363 (E.E.O.C. Jan. 14, 2016)

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

Felicidad S.,1
Complainant,

v.

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

Appeal No. 0120140363

Agency No. 200H-0693-2013101025

DECISION

Complainant filed an appeal from the Agency’s September 27, 2013 final decision concerning
her 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, the Commission AFFIRMS the Agency’s
final decision finding no discrimination.

BACKGROUND

Effective August 12, 2012, Complainant was appointed as a finalist Fellow through the
Presidential Management Fellows (PMF) Program. At the time of events giving rise to this
complaint, Complainant worked as a Health Systems Specialist, GS-11, at the Wilkes-Barre
VA Medical Center in Wilkes-Barre, Pennsylvania. During the relevant time, Complainant
was a probationary employee on a two-year excepted service appointment. Complainant’s first
level supervisor was the Chief of Staff. Complainant’s second level supervisor was the
Medical Center Director.

Complainant stated that her disabilities included thyroid cancer which was diagnosed in 1998,
thyrotoxic myopathy, and neurogenic cysts on her thoracic spine with a resultant chronic pain
condition which was diagnosed in 2012. Complainant also stated that she has had a panic
disorder since childhood. Complainant stated she suffered from a depressive disorder which

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.
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she stated developed as a result of the pain condition and the impairments in the spring of
2012. Complainant explained that as a result she experienced unexpected episodes of severe
fatigue which make it difficult to drive due to impaired alertness and which made it difficult to
concentrate and complete tasks at work and at home. Complainant stated her eyesight was
diminished. Further, Complainant stated she experienced impaired concentration and
attention, difficulty reading and using a computer, and difficulty driving.

On October 3, 2012, Complainant submitted a reasonable accommodation request to the
Employee/Labor Relations Specialist, Human Resources. Complainant asked to telework from
home one day per week. Complainant explained that she had to commute one hour each way
from home and stated the commute and sitting upright in an office chair all day was
exhausting. Complainant stated that her request was not time sensitive, that she can wait while
different options are explored, and she is open to other alternatives.

On October 31, 2012, the Chief of Staff gave Complainant a Notice of Termination During
Probationary/Trial Period signed by the Director. The Notice stated the following:

1. Under 5 CFR 362.203(a)(5)(i), an agency may not appoint a Presidential
Management Fellowship Finalist as a Fellow unless and until the Finalist has met all
graduate degree requirements by August 31st of the year in which the person is selected
as a finalist. If a Fellow does not complete all degree requirements by August 31st

of
the year in which the Fellow or Senior Fellow was selected as a finalist, the Fellow's
finalist status is terminated. 5 CFR 362.203(a)(5)(ii).
The Notice stated that the Chief of Staff recommended Complainant be terminated for failure
to comply with 5 CFR 362.203(a)(5)(i). The Notice stated that Complainant had received an
incomplete grade for her last semester of graduate school, and, therefore, she had not fulfilled
her graduate degree requirements as of August 31, 2012.

On March 8, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability when:

On October 31, 2012, the Director issued Complainant a Notice of Termination During
Probationary/Trial Period from her excepted service appointment, effective November
3, 2012.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, 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 her to discrimination as
alleged.

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On appeal, Complainant states that she believes she was terminated due to the Agency’s anger
about her absenteeism and her illness. Complainant states that “while it cannot be proven
beyond a doubt that discrimination occurred, the facts of the matter support my assertion.”

In response to Complainant’s appeal, the Agency notes it articulated legitimate,
nondiscriminatory reasons for its actions. The Agency states Complainant failed to submit any
evidence showing that she graduated and/or received her degree prior to the August 31, 2012
deadline making her eligible to continue her employment in the PMF program.

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. (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”).

At the outset, we note Complainant does not challenge the Agency’s definition of the issue in
her complaint. Thus, we find the only issue before us concerns Complainant’s termination.
For purposes of this decision, we assume Complainant was a qualified individual with a
disability. We find the Agency articulated a legitimate, nondiscriminatory reason for
terminating Complainant. Specifically, the Agency stated Complainant was terminated for
failure to comply with 5 C.F.R. 362.203(a)(5)(i).

In the present case, Complainant argued that she met the requirements to maintain her
employment with the Agency. Complainant claimed that she had completed all coursework for
the degree, and she had completed the internship and defended her internship research paper
by August 31, 2012. Complainant explained that she did not have her grade for the internship
at the time because the Director of the Master of Public Health (MPH) program did not have
time to review her final paper. Complainant acknowledged receiving an incomplete grade for
her last semester. Complainant noted that she graduated on December 15, 2012, and she
stated she informed management of her expected graduation date at the time she received the
Notice of Termination.

The Director noted that the Chief of Staff recommended Complainant’s termination and she
concurred with the recommendation and signed the termination letter. The Director stated she
consulted with the Human Resources (HR) PMF Program Official and the Office of Personnel
Management (OPM) PMF Program Official prior to terminating Complainant. The Director
also verified with the National Student Clearinghouse that as of October 25, 2012, a degree
had not been conferred to Complainant. The Director maintained that Complainant was
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terminated because she had not completed the regulatory requirements by August 31, 2012,
and she did not request a waiver.

The Chief of Staff stated the main reason an individual is hired through the PMF program is
the expectation that management is hiring someone who already has an advanced degree. The
Chief of Staff stated that if the individual does not possess the advanced degree, that person has
until August 31 of that year to complete the degree requirements. The Chief of Staff stated
that after August 31, 2012, he noticed Complainant was signing her electronic mail messages
with a signature block indicating she was a “MPH candidate.” The Chief of Staff stated he
then spoke with HR and HR checked Complainant’s status and it was determined Complainant
had not been awarded a degree by August 31, 2012. The Chief of Staff stated that HR
informed him that since Complainant had not met all the requirements of her degree by August
31, 2012, she could not continue her employment in the PMF program. The Chief of Staff
explained it was Complainant’s responsibility to report that she had not met the requirements
by the deadline and ask for a waiver if she believed a waiver was necessary. The Chief of Staff
noted Complainant failed to do either.

The record also contains an affidavit from the Employee/Labor Relations Specialist in HR
Services who served as the technical advisor to the Chief of Staff and the Director in terms of
the PMF program regulations and termination actions. The Employee/Labor Relations
Specialist stated that Complainant misunderstood the regulations. He noted that she can indeed
graduate after August 31, 2012; however, she needed to have all degree requirements
completed by August 31, which included accumulation of the requisite number of credit hours
to graduate. The Employee/Labor Relations Specialist stated Complainant did not have this
requirement completed when she was terminated.

With regard to Complainant’s assertion on appeal that her termination was due to
management’s anger about her absenteeism and illness, we note that the Director
acknowledged that the Chief of Staff expressed his concern about Complainant’s absences.
The Director stated that the Chief of Staff told her that Complainant frequently called in for
leave on days when she had a major assignment due. The Director also stated that she was
concerned with Complainant’s poor work habits and disregard for completing assignments on
time.

Additionally, the Chief of Staff acknowledged that Complainant called in sick on many
occasions even when she had not accrued enough sick leave. The Chief of Staff stated he
always approved Complainant’s leave requests, and he told her that he would advance her as
much leave as she needed because her health was her first priority.

The record also contains an affidavit from the Employee/Labor Relations Specialist, HR
Service who stated that he was aware that the Chief of Staff had concerns about Complainant’s
absence due to illness. The Employee/Labor Relations Specialist stated that the Chief of Staff
was concerned about Complainant coming to work two – three days per week and essentially
getting no work done.
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Upon review, we find Complainant failed to establish by a preponderance of the evidence that
her disability, rather than her failure to satisfy all graduate degree requirements by August 31,
2012, motivated the Agency’s decision to remove her. Complainant has not shown that
similarly situated individuals were treated differently. With regard to her contention that the
Agency’s actions were based on her absenteeism, we note that Complainant herself stated that
she “missed many days of work.” We find it a legitimate concern for Complainant’s
supervisor to inquire into her absenteeism. There is no indication in the present case that the
comments and inquiry into Complainant’s absenteeism were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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).

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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

January 14, 2016
Date