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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020001537 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickie P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001537 Agency No. 2004-0659-2018104871 DECISION On December 11, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 15, 2019, 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. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0679-06 Medical Support Assistant at the Agency’s Charlotte VA Health Care Center (HCC) in Charlotte, North Carolina. Complainant’s first-line supervisor was a Supervisory Medical Support Assistant (S1). 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. 2020001537 2 Complainant stated that she worked in Eligibility and was responsible for registering veterans before they received healthcare. According to Complainant, if a veteran used a wheelchair, she sometimes would be responsible for pushing the veteran’s wheelchair into her office. Complainant averred that, starting in December 2017, she was having headaches, dizzy spells, and a loss of balance. According to Complainant, it was difficult for her to walk and to drive. Complainant stated that one of her physicians suggested that he might contact the DMV to have her driver’s license taken away because he was concerned that it was not safe for her to drive long distances. Complainant lived in Salisbury, North Carolina, which she said was a long drive away from her job at the Charlotte HCC. Complainant averred that she and the doctor agreed that, instead of having her driver’s license taken away, she should request a reasonable accommodation at work. The record contains a letter dated January 22, 2018, from Complainant’s physician, which stated that Complainant was experiencing moderate dizziness, lightheadedness, and loss of balance for the past two to three weeks, causing difficulty driving long distances and occasional difficulty walking. In the letter, the doctor stated that Complainant “expressed interest in requesting a job transfer from the Charlotte office to the Salisbury VA office which is closer to her home. I believe this is a reasonable request and would be helpful for her given her periodic episodes.” Report of Investigation (ROI) at 251. The Reasonable Accommodation Coordinator (HR1) stated that, on January 26, 2018, Complainant contacted her and asked her about the reasonable accommodation process. On January 29, 2018, Complainant submitted to S1 a reasonable accommodation request, asking for a permanent transfer to the Salisbury VA Medical Center (VAMC). Complainant also requested that she be transferred to a position that did not require direct contact with veterans, “due to the risk of safety issues for veterans and for myself.” ROI at 277. S1 forwarded Complainant’s reasonable accommodation request to HR1 by email on January 29, 2018. HR1, Complainant, and S1 discussed Complainant’s reasonable accommodation request on January 31, 2018. HR1 averred that Complainant said that her doctor told her that she should not be driving long distances and also said that, one time, she felt like she might pass out while she was in her office with a veteran. HR1 stated that the January 22, 2018, doctor’s note did not clearly explain Complainant’s limitations and did not identify any safety risks to Complainant or to veterans. According to HR1, during their discussion, she asked Complainant to provide additional medical documentation by February 6, 2018, and she provided a letter dated January 31, for Complainant to take to her physician. HR1 stated that, as an interim accommodation, Complainant was authorized to take “liberal leave” starting on February 1, until she could provide the requested medical documentation. According to HR1, on February 1, 2018, S1 mailed Complainant a document explaining the interim accommodation of liberal leave. The record contains a form signed on February 1, 2018, stating that Complainant would be accommodated with interim liberal leave until a decision was made regarding reasonable accommodation request. ROI at 263. 2020001537 3 The form indicated that the interim accommodation would expire if Complainant did not provide updated medical documentation by February 6, 2018. According to Complainant, S1 denied her request for reasonable accommodation. Complainant alleged that S1 did not want to find a way to accommodate her, despite Complainant working for the Agency for almost 20 years. HR1 denied that Complainant’s request for accommodation was denied. According to HR1, Complainant never provided any additional medical documentation, and Complainant never returned to work or contacted HR1 or S1 to discuss her status. On February 9 and 27, 2018, S1 mailed Complainant letters ordering her to return to duty. On March 29, 2018, HR1 mailed Complainant a letter by first class and by certified mail requesting that Complainant provide the additional medical documentation no later than April 13, 2018. According to HR1, the certified mailing was returned as unclaimed, but the letter sent by first class mail was not returned to sender. HR1 stated that, on May 1, 2018, she mailed Complainant a letter stating that she was administratively closing Complainant’s reasonable accommodation request because she had not received the medical documentation. On May 17, 2018, the Acting Medical Center Director (S2) issued Complainant a letter of proposed removal from federal service for unauthorized absences and for failure to follow proper leave request procedures, effective June 19, 2018. On June 8, 2018, S2 decided to remove Complainant, finding that the charges of unauthorized absences and failure to follow proper leave request procedures were both sustained. On August 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when: 1. On May 17, 2018, S2 issued Complainant a letter of proposed removal from federal service for unauthorized absences and for failure to follow proper leave request procedures, effective June 19, 2018; and 2. From January 2018 through June 19, 2018, S1 and HR1 denied Complainant a reasonable accommodation. 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).2 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB) on claim (1) and appeal rights to the EEOC on claim (2). 2 Claim (1) was processed by the Agency as a mixed case. The notice was not included in the record, and it is not clear whether the Agency gave Complainant notice of the right to request a hearing before an EEOC AJ on claim (1) in addition to claim (2), her non-mixed case claim. 2020001537 4 Complainant appealed claim (1) to the MSPB. On June 2, 2020, an MSPB Administrative Judge (MSPB AJ) issued an initial decision upholding Complainant’s removal. The MSPB AJ found that Complainant failed to establish that her removal was based on disability or that the Agency’s alleged failure to accommodate her disability caused her removal. Complainant appealed claim (2) to the Commission. Neither Complainant nor the Agency submitted any contentions on appeal to the Commission. 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”). Complainant alleged that she was denied a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual 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). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000). Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See Enforcement Guidance on Reasonable Accommodation at Question 6. 2020001537 5 Complainant requested a reasonable accommodation consisting of a transfer from the Charlotte HCC to the Salisbury VAMC and a transfer to a position that did not include face-to-face contact with veterans. Complainant supported her request with the January 22, 2018, letter from her physician, which stated that Complainant was having difficulty driving long distances and that a transfer to Salisbury, which would shorten her commute, would help. However, the letter did not define “long distance,” and the doctor did not discuss any safety risks caused by Complainant having face-to-face contact with veterans. On January 31, 2018, HR1 requested additional medical documentation, and she provided Complainant with a letter for her physician explaining what needed to be clarified. Upon review, we find that this request for additional medical documentation to clarify Complainant’s limitations and need for accommodation was appropriate. The preponderance of the evidence in the record establishes that Complainant did not provide the requested medical documentation and that HR1 administratively closed out the reasonable accommodation request. Accordingly, Complainant has not established that she was denied a reasonable accommodation for her disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that preponderant evidence does not establish that Complainant was denied a reasonable accommodation. 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 2020001537 6 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. 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. 2020001537 7 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 July 19, 2021 Date