Venetta S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019002462 (E.E.O.C. Dec. 26, 2019)

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

Venetta S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 2019002462

Hearing No. 550201400210X

Agency No. HHSHIS03532013

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, the Agency’s Final Action
concerning an 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Clinical Nurse (ER), GS-10, at the Agency’s Indian Health Center, Northern Cheyenne Service
Unit (“NCSU”) in Lame Deer, Montana.

On September 12, 2013, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination and harassment on the bases of race (Caucasian), national origin
(American), color (white), disability, and reprisal (prior protected EEO activity) when:

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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1. Starting on May 17, 2013, and continuing until her termination during her
probationary period on June 22, 2013, she was subjected to demeaning comments,
given poor evaluations, verbally reprimanded, denied reasonable accommodation,
and denied overtime work,

2. On June 24, 2013, after her termination, her former management contacted the
Montana Board of Nursing and other private and government facilities to restrict
her employment options, and,

3. On August 22, 2013, and on June 22, 2013, she was denied retirement benefits.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) 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. Over Complainant’s objection, the AJ issued a decision by summary judgment
in favor of the Agency on November 9, 2018.

The record includes, but is not limited to the following undisputed facts:

The ER Nurse position description states that the positions primary responsibility is performing
“specialized, professional nursing duties in the case of critically ill, severely injured and/or
traumatized emergency patients.” The position requires the ability to assess and triage incoming
patients, initiate treatment, medication, resuscitative measures, and utilize protocols such as
Advanced Cardiovascular Life Support (“ACLS”). Other requirements included, but were not
limited to: “advanced knowledge of professional, emergency room nursing theories, principles,
practice, concepts and procedures as applies to the care of emergent/urgent care
patients….specialized skill in maintaining, operating and monitoring complex equipment such as
mechanical ventilators, cardiac monitors, EKG machines, pacemakers, defibrillators, etc… [and]
specialized knowledge in nursing treatment of …cardiac dysrhythmia… hypo/hypertensive
crisis, and cardio-pulmonary arrest.” Because NCSU facility’s remote location, ER Nurses had to
be able to perform these competencies without assistance.

Complainant’s resume reflected continuous employment as a nurse since earning her nursing
license in 1991. However, her ER experience, including placing cardiac catheters, interpreting
EKG printouts and identifying cardiac arrhythmias, was from June 1994 through July 2008.
From 2008 through her application to the ER Nurse position in the instant complaint,
Complainant worked in the OB/GYN field and long term care. The resume indicates that she
monitored surgical patients using specialized telemetry equipment, but makes no mention of
using specific codes, EKGs, defibrillators, or assessing and monitoring urgent care patients.

Complainant’s first level supervisor (“S1”) was the Acting Director of Nursing (Caucasian,
white, American). S1 interviewed and selected Complainant for the position of Clinical ER
Nurse, GS-10.
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Based on Complainant’s resume and interview, S1 believed Complainant had the necessary
experience, including “interpreting EKGs, identifying lethal cardiac arrhythmias and inserting
central catheter (“PICC”) lines in patients.” S1 recalled that Complainant informed her during
the interview that she took ACLS training 3 years earlier, and had administered cardiac
medications, and responded to “many” code situations as a member of cardiac catheterization
PICC teams.

On May 16, 2013, Complainant reported to work, for a three-day orientation, led by her
coworker (“C1”), an ER Nurse Specialist (Caucasian, American). When they entered the trauma
room, Complainant stated she did not know how to use the EKG machine, and also demonstrated
that she did not know how to turn on or properly apply the defibrillator machine. Complainant
explained that she had never run a code before. Another coworker (“C2”), an ER Nurse
Specialist, GS-10, (American Indian) witnessed the exchange, and later reported similar lack of
basic ER knowledge when she assisted with her orientation. Complainant alleges that C2 was
impatient with her, mocked her for her lack of knowledge rather than taught her. C1 and C2
informed S1 of their concerns based on Complainant’s apparent lack experience and knowledge.

On May 17, 2013, while on the job, Complainant herself was taken to the emergency room on
site due to what was later determined to be an adverse reaction to her prescribed medications for
epilepsy and ADHD. However, at the time, Complainant’s new colleagues were unaware of her
medical conditions, and believed she was under the influence of drugs or alcohol, as she had
slurred speech, and, after laying down on the break room couch, was unable to get up or walk on
her own. While being treated in the ER, Complainant became “verbally abusive” and
“combative” and it took multiple staff to place her in arm and leg restraints. Complainant was
ultimately transported to St. Vincent’s hospital in Billings, Montana, where she was evaluated
and stayed overnight for observation.

On May 18, 2013, Complainant returned home and found she received a voicemail from S1,
asking her to call back to discuss “safety issues.” The treating physician at NCSU took it upon
herself to contact S1, who was not there that day, and describe Complainant’s medical incident
to her. Complainant alleges that the physician falsely conveyed that she had abused prescription
drugs and that she was beaten by her boyfriend. Complainant left multiple voice messages for S1
to dispel the physician’s statements, disclosing that she had epilepsy, and emphasizing that she
wanted to keep her job. Complainant followed up by sending S1 a copy of a “return to work”
note from her doctor stating she was able to work on May 19, 2013. Text messages in the record
from May 19 and 20, 2013 reveal Complainant’s continued attempts to reach S1. On May 20,
2013 Complainant texted again, requesting to return on May 28, 2013. S1 responded that she
could. Complainant responded, “so I still have a job” and S1 stated, “for now, yes, but I have a
lot of concerns that area office and I will be discussing.”

Over the week of May 20, 2013, Complainant had two days of unscheduled leave without pay
(“LWOP”) because of S1’s delayed response about returning to work. Complainant also took
previously approved leave to attend her daughter’s graduation. During Complainant’s absence,
S1 inquired with Human Resources (“HR”) regarding whether she could terminate
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Complainant’s probationary employment because, in her opinion, Complainant’s medical
incident on May 17, 2013 represented a “huge patient safety issue.” HR advised that
Complainant had been treated as a patient rather than an employee on May 17, 2013, therefore,
basing a termination on Complainant’s actions as a patient could violate privacy laws. S1
refrained from terminating Complainant’s employment on these grounds.

On May 28, 2013, Complainant returned to work, and provided S1 with medical documentation
and a list of proscribed medications, explaining how the prescription medications caused the
medical incident on May 17, 2013. S1 found Complainant’s explanation believable. That day,
Complainant resumed her orientation. However, rather than totaling three days, as was standard
for the facility, S1 extended Complainant’s orientation to last 8 days. S1, C1, and C2 all agreed
that this was more than any other ER Nurse required. Yet, C1 also testified that S1 “was a new
supervisor, and she was trying to give all the ER nurses more training and orientation than we
had ever received before.”

On June 12, 2013, S1 consulted with HR about terminating Complainant’s probationary
employment for performance deficiencies. According to S1, three different co-workers reported
that, during orientation, Complainant demonstrated that she lacked medical knowledge and
experience critical to the position. In one instance, Complainant allegedly failed to accurately
assess a patient with chest pain and elevated blood pressure, resulting in S1 issuing Complainant
written counseling. S1 issued written counseling again when Complainant failed an ACLS
competency test, and a mock coding competency test. HR confirmed that these performance
deficiencies were an acceptable reason to terminate, but stated that S1 could place Complainant
on a performance improvement plan instead. S1 decided to terminate Complainant’s
employment. Complainant’s second level supervisor (“S2”), the CEO, (Native American, color
not specified) was the concurring official. Prior to Complainant’s official last day of
employment with the Agency on June 22, 2013, Complainant was hired to work as a nurse at a
nursing home facility in another county.

On June 24, 2013, S1 contacted the Montana State Board of Nursing, alleging that Complainant
misrepresented herself on her resume and during the job interview. S1 had already called two of
Complainant’s prior employers and notified Complainant’s new supervisor of Complainant’s
alleged incompetence as an ER Nurse. S1 explained, among other things, “[i]t is critical that a
nurse working in our ER be able to handle, recognize and intervene in an emergent situation and
it is apparent that [Complainant] is not able to do this. I feel she poses a huge risk to patient and
staff safety.” C1 and C2, submitted statements to the Board supporting S1’s assessment. None of
the statements from S1, C1, or C2 referenced Complainant’s May 17, 2013 medical incident or
Complainant’s disabilities.

In testimony for the instant complaint, Complainant’s new supervisor at the nursing home
facility (“S3”), confirmed that S1 warned her not to hire Complainant, that Complainant was
“incompetent” as an ER Nurse, and her resume did not accurately represent her abilities. S3
responded, “we had already hired her, and [S1] said it was possible she would make a good nurse
for the nursing home.”
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Among other things, S1 also told S3 that she reported Complainant to the Montana Board of
Nursing and “she was going to try and have the Complainant's nursing license pulled with the
state.”

Ultimately, Complainant and S1 testified before a panel, the matter was dismissed, and
Complainant kept her license. The panel transcripts indicate that S3 was satisfied with
Complainant’s work, and would hire her again. S3 acknowledges in the record that
Complainant’s nursing responsibilities in her facility were different than those of an ER Nurse.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged became the Agency’s Final Action pursuant to 29 C.F.R. § 1614.109(i).
The instant appeal followed.

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).

In order 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.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency, as the employer, has broad discretion to set policies and carry out personnel
decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the
Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer
has the discretion to determine how best to manage its operations and may make decisions on
any basis except a basis that is unlawful under the discrimination statutes.) In other words, this
Commission "does not second-guess the business judgment of Agency officials regarding
personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice,
EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No.
0520120603 (Jan. 31. 2013).

Claim 1

As an initial matter, we emphasize that Claim 1 does not allege, and this Decision will not
address, whether Complainant’s termination during her probationary period was motivated by
discrimination or retaliation for prior EEO activity. Rather, claim 1 contains two allegations of
disparate treatment, the two negative evaluations (“Reports of Conduct/Performance”) S1 issued
to Complainant, and an instance where Complainant was denied overtime pay for working
during Memorial Day. The Agency’s legitimate non-discriminatory explanation for its actions
were that the evaluations accurately reflected Complainant’s performance, and, that Complainant
was not eligible for overtime on that date.

The first “Report of Conduct/Performance” completed by S1 states that Complainant “failed”
two competencies (Cardiac Rhythms and ACLS Megacode), which she and another ER Nurse
Specialist (“C4”), both ACLS instructors, administered to Complainant on June 7, 2013. S1
contends that “Complainant had over 15 years of experience in ER/ICO departments. She had
difficulty recognizing common and serious cardiac rhythms… she was not familiar with the
cardiac drugs and their dosages.”
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Complainant commented on the Report that she took the ACLS training three years earlier but
hadn’t had to use it. The record reflects that Complainant obtained the required ACLS
Certification on June 20, 2013. Both C1 and C2 testified that all of the ER Nurses were required
to take the competencies annually, and that as a rural facility, the ER Nurses had to be able to
implement the competencies, as they lacked support staff.

The second “Report of Conduct/Performance,” also completed by S1, was based on information
provided by C2, about an event on June 4, 2013. Complainant was assigned to triage for ER and
Walk-In Clinic (“WI”) patients. A patient arrived complaining of chest pains and tightness. He
was on dialysis, and his blood pressure was “very elevated.” Complainant erroneously assigned
the patient to the WI. C2 testified that she found the patient in the waiting room, “hurting” and
breathing heavily. She felt “appalled” that Complainant did not take the patient to the emergency
room. S1 confirmed that “patients complaining of chest discomfort should be taken to the ER, or
have their case discussed with the provider working in the ER.” Complainant signed the Report
but offered no comment. S1 commented on the Report that “Triage is a critical component of the
nursing assessment. It needs to be done correctly in order for the patient to receive appropriate
care.”

Complainant does not dispute the actions in either Report of Conduct/Performance, nor does she
raise a question of material fact that would contradict the Agency’s explanation. For instance,
she offers no evidence that by issuing the Reports, S1 treated her more harshly than she did other
probationary employees on their orientation period. As they directly related to Complainant’s
qualifications and abilities as an ER Nurse we find S1 exercised business judgment, and acted
within the scope of her authority as Complainant’s first level supervisor when she issued these
Reports of Conduct/Performance.

As for the denial of overtime hours, the Agency provided evidence in the form of emails between
S1, the Head Timekeeper, and the Area Office Payroll Technician, which explain that
Complainant did not receive Holiday Pay or Overtime on Memorial Day 2013 because she had
LWOP earlier that week, and ultimately worked fewer than 80 hours that pay period. The ER
Nurses worked 12 hour shifts, amounting to a total of 80 hours per bi-weekly pay period.
Overtime was only payed after the 80 hours were met. Moreover, Complainant was still in the
midst of her orientation period, and individuals who had not completed their orientation period
were not provided overtime opportunities.

Complainant does not dispute any of this, but rather, blames the two LWOP days on S1
effectively “enforcing a suspension” against her because of the medical incident on May 17,
2013. By not returning Complainant’s calls, Complainant was prevented from working, and thus
had two LWOP days for that pay period, causing her to have worked less than 80 hours and
resulting in denied overtime or holiday pay for Memorial Day, which was during the same pay
period. Complainant presents no evidence to support her assertions that S1 intentionally dodged
her phone calls. S1 called and left a voicemail for Complainant first on May 18, 2013, and the
record demonstrates that she and S1 communicated by text on May 20, 2013.
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While S1 acknowledges that she was concerned about safety because of Complainant’s medical
incident, there is no evidence of discriminatory motivation or intent to deprive Complainant of
holiday pay. Rather, we find S1 was acting within the scope of her authority as a supervisor.

For both instances of alleged disparate treatment, we find no evidence on appeal or in the record
to give rise to a question of material fact warranting a hearing.

Claim 2

The Agency’s legitimate, nondiscriminatory reason for S1 contacting two of Complainant’s
former employers, and her current employer, as well as the Montana State Board of Nursing
about Complainant’s competence as a nurse was patient safety. As a result of S1’s report to the
Board, she and Complainant testified before a panel over the matter of whether Complainant
“misrepresented her qualifications submitted on her resume that she submitted and that given the
facilities of [Complainant’s] skills and her abilities when she began working there.” Nothing
from the panel discussion would indicate that this is an inappropriate or pretextual reason for S1
to contact it or the other facilities.

The panel asked S1, “why would you think that 3 days of orientation would be enough for an
individual for ER experience whose never been in your ER before?” S1 explained that
“historically” staff is “generally” given 3 days of orientation, then the individual is “put with
another RN on day shift and they partner together and work together.” When asked by the panel
if there was a “framework or something that you fill out to verify whether or not someone is
competent before they start on the floor by themselves,” S1 stated that Complainant was
provided with a was a “2-3 page” pathway or orientation check list on her first day of
employment, which instructed on equipment and where to find things, and which Complainant
completed. The Panel asked S1 whether the orientation pathway or checklist went beyond
checking equipment competencies, to include “scenarios… to be able to know whether or not
they’re able to critically think through the process [in regard to assessing and treating ER
patients] during orientation.”

S1 responded that the pathway checklist or orientation included cardiac rhythms and ACLS
codes, as well as instructions on how to assess triage, but that it was “a lot of equipment” and
“basic things like how to assess triage.” The Panel confirmed with S1 that she became
concerned because Complainant was given scenarios for ACLS and cardiac rhythms, which she
was not meeting, and asked what S1’s “plan of action” was after that. S1 explained that because
of “other things” namely concerns brought by other nurses conducting Complainant’s orientation
on triage issues “and some other basic things” that at the end of orientation “it was just deemed
that she wasn’t a good fit for our ER.” The Panel asked S1 if she changed her hiring practices,
and S1 confirmed that she interviewed differently, but stated “people can put a lot of things on
their resume or say what they want to in interviews, again I guess that's why we have the
orientation process and the probationary period, but yes I would definitely maybe do things
differently in the interview process.” The Panel agreed that sometimes an employee was “not a
good fit.”
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Although Complainant was able to keep her nursing license, and the case was dismissed, S1’s
testimony, her stated reasons in the letter to the Board, and the detailed supporting statements
from C1 and C2 present legitimate nondiscriminatory reasons for reporting Complainant. In
other words, the Panel’s questions and S1’s responses did not give rise to a question of material
fact over her motivation for reporting Complainant to the Board.

Claim 3

The Agency’s legitimate nondiscriminatory reason for Complainant’s allegation that on August
22, 2013, and on June 22, 2013, she was denied retirement benefits, is that Complainant had
changed employers prior to the dates in question. Complainant offers no evidence or argument in
the record or in her statement on appeal addressing the Agency’s explanation. Nothing in the
record gives rise to a question of material fact regarding the allegation in Claim 3.

Harassment/Hostile Work Environment

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of her prior EEO activity. Only if Complainant establishes both
hostility and motive, will the question of Agency liability present itself. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).

We find a fair reading of Claim 1 also requires a harassment analysis as the allegations that
Complainant was subjected to demeaning comments and verbal reprimands do not describe
concrete employment actions. We have previously found similar allegations to be "common
workplace occurrences," that while unpleasant, did not constitute harassment. Further, even if
done in a confrontational manner, a supervisor questioning an employee about work duties is
also a "common workplace occurrence." See Carver v. United States Postal Serv., EEOC Appeal
No. 01980522 (Feb. 18, 2000), Salvadore K. v. Dep’t of the Air Force, 0120150104 (Dec. 2,
2016).

The “verbal reprimands” are either related to the two Report of Conduct/Performances, which
concern Complainant’s work duties, and are supported by the record, or refer to C1, C2 and S1’s
repeated reaction of surprise over Complainant’s apparent lack of ER experience and knowledge.
Such statements are common workplace occurrences that do not rise to the level of severity to
constitute harassment, particularly given the legitimate nondiscriminatory explanation regarding
Complainant’s competencies as an ER Nurse.

The comments S1 and C2 allegedly made to Complainant included nitpicking, putdowns
indicating she lacked competence as a nurse, and repeatedly stating that that doctors and staff did
not want to work with her.
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Complainant also alleged that the staff gossiped about her disability and perceived prescription
drug abuse. Complainant no supporting evidence of the alleged comments. Assuming arguendo
her allegations to be correct, she offers no evidence or argument to give rise to a question of
material fact regarding the level of severity and pervasiveness of the alleged comments. Even
considering these allegations within the context of Claim 1 and the complaint as a whole, we find
that they are not so severe and pervasive as to constitute harassment. Moreover, the record
supports the legitimate nondiscriminatory reason provided by S1, that safety concerns arising
from Complainant’s apparent lack of competence, not her disability, resulted in the write ups and
verbal reprimands.

Reasonable Accommodation

Under the Rehabilitation Act and the Commission's regulations, an agency is required to make
reasonable accommodation of 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), 1630.2(p). A reasonable accommodation is an
adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United
States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). Reasonable accommodation includes
job restructuring and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii). Here,
Complainant testifies that her request to retain employment following the medical incident on
May 17, 2013 constituted a request for a reasonable accommodation.

Complainant established that she is an individual with physical, mental and perceived mental
disabilities. It is undisputed that Complainant disclosed her mental disability (ADHD) and
physical disability (epilepsy), to S1, and informed both C1 and C2 that she had a seizure
disorder. Although S1, S2, C1, and C2 all testify that they did not perceive Complainant to have
a mental disability, we note that Complainant’s May 17, 2013 medical incident, which required
her to be physically restrained on the premises due to verbal outbursts, would be difficult for a
colleague or supervisor to “un-see” or “unlearn.” Documents in the record reflect that S1
specifically inquired about terminating Complainant’s employment because the incident caused
her to believe Complainant posed a safety risk.

Complainant has not established that she is a “qualified individual.” As previously discussed, the
record evidence supports that Complainant was not able to perform the essential functions of her
position with or without accommodation.

Even if Complainant could establish that she was “qualified,” we see no evidence that she
requested, or appeared to require a reasonable accommodation, triggering the Agency’s
obligation to provide her with one. Despite S1’s knowledge of Complainant’s perceived
disability and diagnoses, the need for an accommodation was not obvious. She states in the
record that her disability “does not interfere with my ability to perform any of those duties, as
long as I am not in a state of seizure.
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There is no accommodation that would allow me to perform my duties when I am having a
seizure. I have a seizure approximately once per year, so it would not generally affect my
performance.” Moreover, Complainant simply asked to remain employed; there is no evidence
that she requested a specific adjustment or change to her position in relation to her disabilities.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Action adopting the AJ’s decision that the
preponderance of the evidence did not establish that Complainant was discriminated against by
the Agency as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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

December 26, 2019
Date