[Redacted], Sheila O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020002088 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheila O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002088 Hearing No. 550-2019-00427X Agency No. 200P-0010-2015101592 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 5, 2019, final order concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. We AFFIRM the Agency’s final order. BACKGROUND During the period at issue, Complainant was employed as a GS-13, Contract Specialist at the Agency’s Network Contracting Office in McClellan, California. Complainant filed a formal complaint on February 25, 2015, which was subsequently amended on July 20, 2015. She alleged that she was subjected to discrimination and a hostile work environment based on disability (respiratory impairment and depression) and in reprisal for prior EEO activity when: 1. From December 31, 2014 to May 30, 2015, management failed to provide her preferred accommodation of 100% telework for alleged environmental irritants in the workplace; 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. 2020002088 2 2. From July 24, 2014 to May 30, 2015, her request for leave without pay was denied and she was charged with being absent without leave (AWOL); 3. From April 2014, through December 31, 2014, management failed to properly process her Workers’ Compensation claim, resulting in the denial of her claim by the Department of Labor; 4. On March 23, 2015, S1, Deputy Contracting Director, issued her a letter of proposed removal; and 5. Effective May 30, 2015, she was constructively discharged when she sought disability retirement in lieu of termination.2 After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant did not provide an affidavit for the Agency’s investigation. In her complaint, Complainant lists December 31, 2014, as the initial date of discrimination because she received a letter from S1, dated December 31, 2014, rejecting her request to work at home more than one day a week. Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing.3 The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The AJ found that, beginning in December 2012, Complainant began seeking telework, a self- paced workload, and a reduction in work, to accommodate her medical condition that she alleged was caused by exposure to chemicals and toxins in the office environment. The Agency began conducting tests of the environment within six days of Complainant’s request. Around late December 2012, the tests revealed no evidence of toxins or irritants; and found that everything was within the normal ranges. Notwithstanding the test results, Complainant continued seeking the requested accommodations - especially telework. Because the Agency believed that Complainant was requesting accommodations that would remove several essential functions from her position, the Agency proposed various alternatives that it believed would be effective. The parties engaged in discussions over a period of months involving the procurement of an air purification system, which was ordered, remodeling and relocating Complainant to a new building, allowing her to telework one day per week, and allowing her to work a compressed schedule. Complainant ultimately refused the alternative accommodations. 2 Complainant’s initial appeal to the Merit Systems Protection Board on this claim was dismissed for lack of jurisdiction. 3 In its motion, the Agency correctly noted that the Commission has found that allegations such as claim 3 fail to state a claim because they are collateral attacks on the workers’ compensation process. 2020002088 3 Complainant did not return to work after April 8, 2014. On April 10, 2014, she requested a six- month medical leave of absence through October 13, 2014. The record indicates that Complainant was approved for Family Medical Leave Act (FMLA) leave from May 1, 2014, through July 23, 2014, at which time she exhausted her entitlement of 12 weeks of FMLA leave. Complainant was then provided leave without pay. On October 15, 2014, S1 issued her a return to work order informing her that her FMLA leave was exhausted, and that if she failed to submit a proper leave request or return to work, she would be charged AWOL as of October 11, 2014. After receiving the return to work order from management, Complainant’s medical provider wrote on November 20, 2014, that she was now completely disabled from performing any work with or without accommodation and was not expected to return in the near future. Complainant requested continued medical leave, i.e., Leave Without Pay (LWOP) until April 2015, when Complainant would be reevaluated. The Agency began the process of separating Complainant from employment in January 2015. Complainant subsequently sought retirement. Complainant’s retirement was effective May 30, 2015. The AJ found that the record revealed no factual evidence of unlawful Agency conduct towards Complainant due to her disability, prior EEO activity, or any other discriminatory factor, and that, in the absence of any genuine dispute of material fact or issue as to credibility, summary disposition in favor of the Agency was appropriate. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. Like the AJ, we find that Complainant did not demonstrate that the alternate accommodations she was offered would not have been effective. 2020002088 4 We also agree with the AJ’s determination that in the absence of any evidence of discrimination, the Agency was within its broad discretion in charging Complainant AWOL, proposing to remove her from service and finally, accepting her own voluntary resignation. Finally, we also agree that claim 3 fails to state a claim and therefore is properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). See Mana H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000368 (Apr. 28, 2021). CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, the Agency’s final order is AFFIRMED. 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. 2020002088 5 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. 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 June 7, 2021 Date