[Redacted], Vanessa W., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Feb 28, 2022

Appeal No. 2021002197 (E.E.O.C. Feb. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vanessa W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021002197 Hearing No. 550-2018-00080X Agency No. DOI-BIA-17-0378 DECISION On February 25, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 26, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of 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 as a Correctional Officer, Grade GL-7, at the Agency’s Office of Justice Services detention center in Owyhee, Nevada. On June 13, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability (narcolepsy, severe adrenal chronic fatigue, altered mental state, Anxiety Disorder) when: 1. From January 2016 and ongoing, the Agency failed to accommodate Complainant’s disabilities. 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 2021002197 2. On May 4, 2017, Complainant’s supervisor who was the facility’s Supervisory Special Agent, presented Complainant with a letter from the facility’s Supervisory Human Resources Specialist which stated that Complainant was no longer fit for duty and therefore not qualified for her position as a Correctional Officer. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment, finding no discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. 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 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. 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, at Ch. 9, § VI.B. (as revised, Aug. 5, 2015)(providing that an AJ’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 fact-finder could not find in Complainant’s favor. A brief summary of the factual record is necessary to discuss the AJ’s analysis. On two occasions in 2016, Complainant lost consciousness while on-duty, and emergency medical services were required to revive her. Thereafter, the Agency initiated a fitness-for-duty examination of Complainant. In September 2016, Complainant applied for disability retirement through Office of Personnel Management (OPM). The AJ noted that Complainant did not request a reasonable accommodation to continue working as a Corrections Officer. Instead, Complainant requested that the Agency place her on administrative leave until OPM processed her disability retirement application. In October 2016, the Agency’s determined that 3 2021002197 Complainant was unfit to continue duty as a Corrections Officer. In June 2017, the Agency began to search for an alternative position for Complainant within the Agency. In August 2017, Complainant declined to accept the Agency’s alternative position offer of an administrative clerk at the Agency’s correction facility in Elko, Nevada, which is more than one-hour’s driving distance from the facility in Owyhee. Effective October 17, 2017, Complainant was removed from federal service. In accordance with the Rehabilitation Act, the Agency was only required to provide an accommodation that was reasonable and did not cause it undue hardship. Complainant offered no evidence of comparators who the Agency had permitted to remain on administrative leave for more than 30 days while awaiting OPM’s retirement decision. Under these circumstances, Agency management engaged in an interactive process with Complainant. As a result, the Agency offered the alternative clerk position was a reasonable accommodation for her disability. We concur with the AJ’s conclusion, in that Complainant was not entitled to placement on unlimited administrative leave pending the processing of her disability retirement application. In reaching this conclusion, we find that Complainant’s requested accommodation was not related to her performing the essential functions of any position with the Agency and thus outside the Agency’s duty to provide reasonable accommodation. Based on the evidence of record, we find, as did the AJ, that the Agency met all of its obligations under the Rehabilitation Act and did not discriminate against Complainant based on her disabilities. 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, we AFFIRM the Agency’s final order adopting the AJ’s 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 4 2021002197 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit her request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files 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. 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 5 2021002197 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 February 28, 2022 Date