Dixie B.,v.Dep’t of Veterans Affairs

Equal Employment Opportunity Commission

Mar 26, 2019

EEOC Appeal No. 0120170175 (E.E.O.C. Mar. 26, 2019)

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

Dixie B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120170175

Hearing No. 560-2014-00291X

Agency Nos. 2003-0657-2012104828,
2003-0657-2014102137

DECISION

On September 27, 2016, 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
August 24, 2016, final decision concerning her consolidated equal employment opportunity (EEO)
complaints 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. For the following reasons, the
Commission AFFIRMS in part and REVERSES and REMANDS in part the Agency’s final
decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency failed to protect Complainant’s confidential
medical records in violation of the Rehabilitation Act; (2) whether the Agency made an
impermissible medical inquiry in violation of the Rehabilitation Act; (3) whether the
preponderance of the evidence in the record establishes that Complainant was subjected to
disparate treatment or a hostile work environment based on race, disability, and/or reprisal; and

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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(4) whether the preponderance of the evidence establishes that Complainant was denied a
reasonable accommodation for her disability.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a Medical
Technician/Phlebotomist, GS-0645-04, at the Agency’s St. Louis, Missouri VA Medical Center
(VAMC) facility. Through November 2012, Complainant’s first-line supervisor was a Health
Technician Supervisor (S1). In November 2012, a new Health Technician Supervisor (S2) became
her first-line supervisor. The Chief of the Pathology and Laboratory Service (S3) was
Complainant’s second-line supervisor.

Complainant is Caucasian, and she stated that she had engaged in prior protected EEO activity
prior to the time of events giving rise to these two complaints. According to Complainant, she has
chronic back pain with degenerative disc disease and major depression and anxiety with frequent
panic attacks. Because Complainant is a veteran, she was treated at the St. Louis VAMC for these
conditions. Complainant stated that her back condition causes urinary retention, so she requires
catheterization. Complainant averred that sometimes she was admitted to the hospital for IV pain
medication.

According to Complainant, she was not properly paid from March 2012 through May 2012.
Specifically, Complainant alleged that she was incorrectly told that she could receive overtime pay
or night differential and weekend premium pay, but not all three. Complainant stated that in June
2012 she was paid a portion of the back pay that she was due but that she was told that the
remaining back pay would not be forthcoming because the schedules for those dates had been
destroyed.

Complainant averred that from March 2012 through January 2013, S1 would not allow her to work
overtime. According to Complainant, S1 reserved all available overtime for her friends and her
sister. S1 stated that she posted overtime as it became available and that overtime was reserved on
a first come, first served basis. According to S1, Complainant did work some overtime during the
period in question.

Complainant alleged that in April 2012 S1 wrote her up for her sick leave usage. Complainant
averred that she had been admitted to the hospital multiple times and that she provided medical
documentation to substantiate her need for sick leave. According to S1, she issued Complainant a
written warning because she observed a pattern of Complainant calling out sick on the Friday
before a weekend off or on the Monday after a weekend off.

Complainant stated that from June 2012 through September 2012, she was frequently required to
work alone and that S1 ignored her requests for assistance. S1 denied ignoring Complainant’s
requests. According to S1, Complainant requested to work on the night shift, and all phlebotomists
on the night shift worked by themselves at times.

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Complainant alleged that in September 2012 she told S1 that a coworker (C1) intimidated and
threatened her, but that S1 took no action. According to the record, S1 investigated and verbally
counseled C1 based on her finding that C1 had not intimidated or threatened her but had acted
rudely toward Complainant.

Complainant averred that in or around September 2012 her coworkers accessed her medical
records and discussed her medical information. According to Complainant, on September 26,
2012, she heard coworkers joking about her medical condition and that she was a disabled veteran
treated at the VAMC. S1 denied knowledge of coworkers joking about Complainant’s medical
condition. The record contains a May 27, 2014, letter to Complainant from the St. Louis VAMC
Privacy Officer (PO1), which states that, after an investigation, he determined that S1 and four of
Complainant’s coworkers viewed Complainant’s VAMC medical records without proper
authorization for doing so.

According to Complainant, in October 2012 her request to change the holiday rotation schedule
was ignored by S1. S1 denied ignoring Complainant and stated that she told her that it was her
responsibility to find coverage if she wanted additional days off during the holiday season.

Complainant stated that in November 2012 S1 sent an email falsely accusing Complainant of being
late for work. According to S1, Complainant was in fact late for work on the date in question.
Complainant averred that in November 2012 S1 accused her of making defamatory statements
about S2. S1 denied accusing Complainant of making defamatory statements about S2.

Complainant alleged that in November 2012 and on January 3, 2013, S2 verbally counseled her.
S2 denied counseling Complainant in November 2012 or on January 3, 2013. According to S2, the
only time he verbally counseled Complainant was in July 2013.

Complainant stated that in February 2013, her father-in-law died but that the funeral arrangements
were not announced and that her coworkers did not send her a card. According to Complainant,
when her African-American coworkers lost a loved one, they received cards, and announcements
would be made about the funeral services.

In March 2013, Complainant requested to be placed in a higher-graded Medical Lab Technician
position under the special Veterans’ Recruitment Appointment (VRA) authority. According to S3,
the position in question required a bachelor’s degree, which Complainant did not possess. The
record indicates that Complainant has two associate’s degrees but does not have a bachelor’s
degree.

According to Complainant, in April 2013 she noticed that a negative comment regarding her
performance had been added to her fiscal year (FY) 2012 performance appraisal by S1 after
Complainant had signed it. The Human Resources Manager (HR1) stated that S1 did add a
comment to Complainant’s appraisal after Complainant had signed it. S1 stated that she added the
comment because she had discussed it with Complainant at the meeting where Complainant signed
the appraisal.
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According to HR1, the document was removed from Complainant’s personnel file because she
had not been given the opportunity to initial the change after having signed the appraisal.

Complainant alleged that in April 2013 a coworker approached S2 about donating leave to
Complainant but was turned away. HR1 stated that Complainant was accepted into the leave
donation program and denied that donors were turned away.

Complainant stated that in May 2013 she was denied the opportunity to work an alternate tour of
duty, the day shift. According to S1 and S3, there was a shortage of phlebotomists on the day shift
at this time. S1 and S3 stated that they did not allow Complainant to switch to the day shift because
she was frequently absent.

Complainant averred that in May 2013 she contacted the VAMC’s Executive Office Action Line
but that she did not receive a response. The record contains copies of Executive Office Action Line
records, which do not indicate that a call was received from Complainant during May 2013.

According to Complainant, in May 2013, she requested advanced sick leave, and her request was
denied. HR1 stated that Complainant’s request was denied because she appeared to plan to use the
advanced sick leave for vacation purposes, which is not a reason for granting advanced sick leave.

Complainant alleged that in June 2013 she requested to move to the day shift as a reasonable
accommodation, which was never approved. The record contains a June 19, 2013, memorandum
from HR1, which requests additional medical documentation to substantiate her need for
accommodation. The record contains a July 19, 2013, letter from Complainant to HR1, which
states that the needed information could be found on her previously submitted Family and Medical
Leave Act (FMLA) leave application. Complainant’s May 1, 2013, FMLA application indicated
that Complainant would need time off work to attend therapy and other medical appointments, but
it did not discuss her need for a shift change. There is no evidence in the record that Complainant
provided additional medical documentation with respect to her reasonable accommodation
request.

According to Complainant, in 2013 she requested FMLA leave, but the Agency failed to timely
approve her request. The record contains a May 7, 2013, memorandum approving Complainant to
use FMLA leave from May 2013 through November 2013.

Complainant stated that in August 2013 a coworker (C2) yelled at her and intimidated her.
According to Complainant, she reported the incident to management, but no action was taken. S3
stated that he investigated Complainant’s allegation and counseled C2 for his rude behavior
towards Complainant. S3 averred that his investigation did not reveal that C2 yelled at
Complainant.

Complainant averred that on November 19, 2013, she left work early because she was not feeling
well. According to Complainant, S2 gave her permission to leave early, but S2 later counseled her
for leaving early.
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According to S3, he investigated this allegation and determined that Complainant told a coworker
that she was not feeling well but did not get permission from S2 to leave early. S3 stated that
because Complainant was sick she was not counseled regarding her early departure.

The Pathology and Laboratory Service has a call-in line for employees to report any unscheduled
absences. Complainant stated that on November 22, 2013, she left a confidential message on the
call-in line, but a coworker retrieved the message. S3 stated that it is common knowledge that
many employees have the code to retrieve messages on the call-in line. According to S3, there is
no requirement to leave personal information in messages on the call-in line.

On November 26, 2013, S2 issued Complainant a performance evaluation for FY 2013 with a
Fully Successful rating. S2 indicated that Complainant had trouble getting along with team
members and identified communication as an area for improvement. According to Complainant,
she had received Exceptional ratings in the past, and her performance had not declined. S3 stated
that he concurred with S2’s rating of Complainant as an accurate reflection of her performance.
Complainant stated that she refused to sign the appraisal because she disagreed with the rating.
According to Complainant, because she did not sign the appraisal, it was not submitted to HR, and
she was therefore not eligible for monetary awards. S3 stated that he submitted Complainant’s
performance appraisal to HR. According to S3, he was not aware whether Complainant was
eligible for a performance award.

According to Complainant, in November 2013, S3 accused her of misusing sick leave and told her
that she needed to recertify her FMLA condition every 30 days. S3 stated that he believed that
there had been a sick-out by employees on a particular day, so he requested medical documentation
from all employees who called in sick that day. S3 averred that he subsequently discussed the
situation with HR and decided not to follow through with the request for medical documentation
from Complainant or to make her recertify her FMLA condition because she was approved for
FMLA leave on the date in question.

Complainant stated that on December 13, 2013, she requested FMLA leave but was charged leave
without pay (LWOP). S3 stated that Complainant did not have sufficient paid leave to cover her
absence that day, so she was granted FMLA LWOP.

Complainant averred that on December 20, 2013, coworkers accused her of using the internet
instead of collecting blood from patients and reported this allegation to S3. S3 stated that he did
not remember this incident.

Complainant stated that in December 2013 S3 gave several coworkers gift certificates to the
cafeteria as a reward for perfect attendance. According to Complainant, she was ineligible to
receive a gift certificate because of her disability and her use of FMLA leave. S3 stated that he
gave out small gift certificates to employees as a reward for “doing something good.” According
to S3, he did not give out any gift certificates in December 2013.

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Procedural Background

On January 8, 2013, Complainant filed an EEO complaint (Agency No. 2003-0657-2012104828),
which she subsequently amended, alleging that the Agency discriminated against her on the bases
of race (Caucasian), disability (chronic back pain with degenerative disc disease and major
depression and anxiety with frequent panic attacks), and reprisal for prior protected EEO activity
when:

1. From March 26, 2012, through May 26, 2012, she was not compensated with back pay for
missing wages;
2. In April 2012, she was written up for sick leave usage;
3. Beginning in May 2012, she was denied the opportunity to work overtime;
4. From June 2012 through September 2012, her requests for help were ignored, and she had
to work her shift alone;
5. In September 2012, her supervisor took no action when she reported that she had been
intimidated and threatened with assault by a coworker;
6. In or around September 2012, her coworkers accessed her medical records and discussed
her medical information with other coworkers;
7. On September 26, 2012, she heard coworkers joking about her medical condition and that
she was a disabled veteran;
8. In October 2012, her request to change the holiday rotation schedule was ignored;
9. In November 2012, her supervisor sent an email falsely accusing her of being late;
10. In November 2012, she was accused of making defaming statements regarding her
supervisor;
11. In November 2012, Complainant was given a verbal counseling because coworkers
accused her of being idle in the lab during morning lab collection time;
12. On January 3, 2013, she was issued a verbal counseling;
13. In February 2013, she did not receive a sympathy email from personnel to announce funeral
services for her father-in-law;
14. In March 2013, she was denied acceptance into the Core Lab to work as a Lab Technician
under the VRA;
15. In April 2013, she made a verbal complaint of harassment and submitted documents to HR
managers, who took no action;
16. On April 12, 2013, she noted that negative comments and a new date had been added to
her annual performance appraisal;
17. In April 2013, she was denied the opportunity to receive leave from a coworker;
18. In May 2013, she was denied the opportunity to work an alternate tour of duty;
19. In May 2013, her request for assistance from the Executive Office Action Line was
ignored;
20. In May 2013, her request for advanced sick leave was denied;
21. In June 2013, her reasonable accommodation request to be transferred to the day shift was
denied;
22. Beginning on July 19, 2013, the Agency has failed to approve her requested FMLA leave;
and
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23. In August 2013, she reported that a coworker confronted her in a threatening manner with
his fist and yelled, “The specimen was not collected. How is that my fault?”, and
management took no action.

On April 9, 2014, Complainant filed an EEO complaint (Agency No. 2003-0657-2014102137)
alleging that the Agency discriminated against her on the bases of race (Caucasian), disability
(chronic back pain with degenerative disc disease and major depression and anxiety with frequent
panic attacks), and reprisal for prior protected EEO activity when:

1. On November 19, 2013, she was accused of leaving the work area without notifying the
Phlebotomist Team Leader first;
2. On November 22, 2013, her confidential leave request was breached by her supervisor,
who assigned access codes to retrieve call-offs to a coworker;
3. On November 26, 2013, she was given a lower annual performance rating of Fully
Successful;
4. In November 2013, S3 accused her of misusing her leave and required her to recertify her
FMLA leave every 30 days;
5. On December 15, 2013, she requested FMLA leave but was charged LWOP;
6. On December 20, 2013, she was accused of refusing to collect blood from two patients and
given a verbal counseling by her supervisor;
7. In December 2013, she was not considered for a performance bonus because her evaluation
was not sent to HR; and
8. In December 2013, she did not qualify to receive a gift certificate from S3 because of her
use of FMLA leave.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing for both complaints, and the AJ assigned to
the matters consolidated them. Complainant subsequently withdrew her hearing request.
Consequently, 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. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her complaints were poorly investigated. According to
Complainant, the EEO Investigator failed to interview relevant witnesses. Complainant argues that
the Agency’s final decision placed undue weight on S3’s testimony, accepting it as true even for
allegations regarding actions that occurred prior to him being hired by the Agency. Complainant
contends that the final decision disregarded her testimony. Complainant requests a thorough
review of the Agency’s final decision.

In response to Complainant’s appeal, the Agency contends that its final decision properly found
that Complainant was not subjected to discrimination as alleged.
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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”).

As a preliminary matter, we address Complainant’s contention on appeal that the Agency failed to
conduct an adequate investigation. EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia,
that the agency develop an impartial and appropriate factual record upon which to make findings
on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which
a reasonable fact finder may draw conclusions as to whether a violation of the discrimination
statutes has occurred. Id.; EEO MD-110, at Chap. 6, § IV.B. An investigation must include “a
thorough review of the circumstances under which the alleged discrimination occurred; the
treatment of members of the Complainant’s group as compared with the treatment of similarly
situated employees...and any policies and/or practices that may constitute or appear to constitute
discrimination, even though they have not been expressly cited by the complainant.” Id. at § IV.C.
Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of
how it may affect the outcome.” Id. at § VI.D. Upon review, the Commission finds that the
investigation was adequate because it was impartial and, although not every potential witness was
interviewed, the investigation was sufficiently thorough for the fact finder to address the ultimate
issue of whether discrimination occurred.

We additionally note that Complainant withdrew her hearing request. A complainant is provided
an opportunity to cure defects in an investigation, after reviewing the report of investigation by
notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting
a hearing before an EEOC AJ. See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By choosing to
withdraw her hearing request before an AJ, Complainant waived the opportunity to develop the
record through discovery and to cross examine witnesses. See Tommy O. v. United States Postal
Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017).

Accessing Confidential Medical Records

Complainant alleged that her coworkers accessed her VAMC patient medical records without a
valid business-related reason for doing so. It is a per se violation of the Rehabilitation Act to access
confidential employee medical records when the access is not shown to be job-related and
consistent with business necessity. Specifically, 29 C.F.R. § 1630.14(c)(1) provides, in pertinent
part, that: “Information obtained . . . regarding the medical condition or history of any employee
shall . . . be treated as a confidential medical record.”
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By its terms, this requirement applies to confidential medical information obtained from “any
employee,” and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv.,
EEOC Appeal No. 01A00132 (April 13, 2000). The record clearly establishes, without dispute,
that S1 and four of her coworkers accessed Complainant’s confidential medical records and that
PO1’s investigation determined that the access was neither job-related nor consistent with business
necessity. See Melani F. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120142156 (June 23,
2016). Accordingly, we find that the Agency has violated the Rehabilitation Act and reverse the
Agency’s final decision with respect to this claim.

Impermissible Medical Inquiry

In November 2013, S3 asked Complainant to provide medical documentation to substantiate her
need for FMLA sick leave on the date of the alleged sick-out and to recertify her need for FMLA
leave for her disabilities every month. Upon review, we find that the Agency should not have asked
Complainant to provide additional medical documentation regarding these matters. The
Commission has stated that there are situations when an employer cannot ask for documentation
in response to a request for reasonable accommodation. It is when: (1) both the disability and the
need for the reasonable accommodation are obvious; or (2) the individual has already provided the
employer sufficient information to substantiate that she has a disability and needs the reasonable
accommodation requested. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 8, (Oct. 17,
2002) (Reasonable Accommodation Enforcement Guidance).

In the case at hand, the record clearly shows that Complainant had provided sufficient information
to substantiate her disabilities and need for leave as a reasonable accommodation for disability-
related flare ups. The medical documentation previously provided to the Agency indicated that
Complainant’s conditions were chronic and likely permanent. Under the circumstances of this
case, there was a history of Complainant’s communication with the Agency regarding her medical
condition and restrictions, and the Agency was fully apprised of the permanent nature of the
disability and restrictions. Accordingly, it was incorrect to seek more documentation to continue
accommodating Complainant’s restrictions. See, e.g., Natalie S. v. Dep’t of Veterans Affairs,
EEOC Appeal No. 0120140815 (Jan. 26, 2018) (finding agency made impermissible medical
inquiry where agency requested additional documentation despite knowledge of chronic and
permanent nature of complainant’s disability); Heard v. Dep't of Treasury, EEOC Appeal No.
0120110751 (Apr. 19, 2013) (finding that complainant did not have to submit additional medical
documentation for accommodation of a parking spot when complainant’s doctor had informed the
agency that complainant’s disability and restrictions were permanent). Therefore, we will reverse
the Agency’s finding that Complainant was not subjected to an unlawful disability inquiry when
the Agency requested additional medical documentation in November 2013.

However, in the instant case, S3 consulted HR after making the initial impermissible inquiry and
subsequently informed Complainant that she did not need to provide the medical documentation
for the day of the alleged sick-out or recertify her need for FMLA leave on a monthly basis.
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S3 also made the inquiry because he suspected that Complainant and her coworkers had engaged
in a sick-out. Although we note that S3 should have consulted HR before making the impermissible
medical inquiry instead of afterwards, we decline to order the Agency to consider disciplinary
action against S3 for making this impermissible inquiry because he reversed course and because
Complainant was not required to provide the additional medical documentation.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct.
2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant alleged that she was subjected to discrimination when she was denied the opportunity
to work overtime. The prima facie inquiry may be dispensed with in this case, however, since the
Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The Agency’s legitimate,
nondiscriminatory explanation is that S1 posted overtime opportunities on a first come, first served
basis. Moreover, there is evidence in the record that Complainant worked some overtime during
the period in question. Although Complainant contends that she was assigned minimal overtime
compared to her coworkers, we find that Complainant has failed to establish by the preponderance
of the evidence that the Agency’s legitimate, nondiscriminatory reason is a pretext for
discrimination.

Complainant alleged that she was discriminated against when she was required to work alone and
her requests for assistance were ignored. According to S1, all phlebotomists periodically work
alone, especially on the night shift, and the record indicates that Complainant requested to be
reassigned to the night shift. Here, Complainant alleged that she was forced to work alone more
than her coworkers. However, this does not refute the Agency’s legitimate, nondiscriminatory
explanation that Complainant requested to work on the night shift, and we find that she has not
otherwise established that the Agency’s legitimate, nondiscriminatory reason is pretextual.

Complainant alleged discrimination with respect to S1 not shifting the holiday schedule. The
Agency’s legitimate, nondiscriminatory reason for not shifting the holiday schedule is that
Complainant was responsible for finding someone to cover her shift if she wanted additional
holidays off.
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Although Complainant contends that the holiday rotation schedule was unfair, we find that the
preponderance of the evidence in the record does not establish that the Agency’s proffered reason
is a pretext designed to mask discriminatory or retaliatory animus.

Complainant alleged that she was subjected to discrimination when S1 reported that she arrived
late to work. S1’s legitimate, nondiscriminatory reason for doing so is that Complainant was late
to work on the date in question. According to Complainant, she was not scheduled to work on this
date. However, we find that Complainant has failed to establish by the preponderance of the
evidence in the record that this legitimate, nondiscriminatory reason is pretext for discrimination
or retaliation.

According to Complainant, she was discriminated against when she was not appointed to a higher-
graded position under the VRA. The Agency’s legitimate, nondiscriminatory reason for not
moving Complainant to this position was that she did not possess the required educational
credentials, a bachelor’s degree. Complainant argued that she had two degrees, but the
preponderance of the evidence in the record does not establish that she had the necessary
bachelor’s degree, Complainant has not otherwise established by the preponderance of the
evidence in the record that the Agency’s legitimate, nondiscriminatory reason is pretextual.

Complainant alleged that she was subjected to discrimination when a coworker was not permitted
to donate leave to Complainant. We find that Complainant has failed to establish a prima facie
case of disparate treatment with respect to this claim, as the preponderance of the evidence in the
record does not establish that a coworker was not permitted to donate leave. The preponderance of
the evidence establishes that Complainant was approved for the leave donation program and
received some donated leave.

Complainant alleged that she was discriminated against when her request to change shifts was
denied. The Agency’s legitimate, nondiscriminatory reason for denying Complainant’s request
was that the day shift was understaffed at the time and that Complainant’s frequent medical
absences would have exacerbated the problem. Although Complainant contended that the night
shift was also understaffed at this time, we find that Complainant has failed to establish that this
legitimate, nondiscriminatory reason is pretextual. Because Complainant subsequently requested
to change shifts as a reasonable accommodation, we will separately analyze her reasonable
accommodation request below.

Complainant alleged discrimination when her request for advanced sick leave was denied. HR1
explained that Complainant’s request for advanced sick leave was denied because she indicated
that she planned to use the leave for vacation purposes, which is not a valid reason for requesting
advanced sick leave. Here, Complainant has failed to establish by the preponderance of the record
that the Agency’s legitimate, nondiscriminatory reason is a pretext for discrimination based on
race, disability, and/or reprisal.

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Complainant alleged that she was subjected to discrimination when her FMLA request was not
promptly approved. However, we find that Complainant has failed to establish a prima facie case
of discrimination with respect to this claim because the preponderance of the evidence in the record
establishes that her FMLA request was approved in May 2013.

Complainant alleged that she was discriminated against when she was issued a Fully Successful
performance evaluation. The Agency’s legitimate, nondiscriminatory reasons were that
Complainant had difficulty getting along with all of her teammates and that her communication
skills were an area for improvement. Although Complainant contends that her performance
merited a higher rating, we find that the preponderance of the evidence in the record does not
establish that these legitimate, nondiscriminatory reasons were pretextual.

Complainant alleged that she was subjected to discrimination when she requested FMLA leave but
was charged LWOP. The Agency’s legitimate, nondiscriminatory reason for charging
Complainant LWOP is that she did not have sufficient paid leave to cover her absence.
Complainant contends that a leave audit likely would show that she did have enough paid leave to
cover her absence, but we find that she has not established by the preponderance of the evidence
in the record that the Agency’s proffered reason is a pretext for discrimination.

Complainant alleged that she was discriminated against when her performance evaluation was not
forwarded to HR after she refused to sign it. We find that Complainant has failed to establish a
prima facie case with respect to this claim because the preponderance of the evidence in the record
establishes that her performance evaluation was sent to HR in accordance with Agency policy.

Finally, Complainant alleged that she was subjected to discrimination when she was not eligible
for a gift certificate from S3 based on perfect attendance because of her use of FMLA leave. S3
stated that he occasionally gave out $5 gift certificates to the canteen as a morale booster, including
for perfect attendance. Complainant contends that S3 never gave her a gift certificate for perfect
attendance because of her use of FMLA and that he never gave her a gift certificate for exceptional
contributions because he did not like her. Upon review, although Complainant argues that she was
discriminated against because she did not receive gift certificates for perfect attendance when she
missed work due to her disability, it appears that S3 measured perfect attendance as accruing no
absences, including the use of annual leave, sick leave, and/or FMLA leave. Therefore,
Complainant has not established that she was denied a gift certificate based on her disability
because employees without disabilities who used any type of leave were similarly not given gift
certificates. We further find that the preponderance of the evidence in the record does not otherwise
establish that the Agency’s legitimate, nondiscriminatory reason is pretextual.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
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had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

With the exception of the circumstances surrounding Complainant’s coworkers accessing her
confidential medical records and the impermissible medical inquiry, there is no evident connection
between the majority of the alleged instances of harassment and Complainant’s race, disability, or
prior protected EEO activity. Many of the instances of harassment appear to constitute minor
slights, such as not receiving a sympathy card from her coworkers when her father-in-law died.
Regarding the alleged harassment by C1 and C2, the record reflects that Complainant’s supervisors
investigated and determined that C1 and C2 had not intimidated or yelled at Complainant but had
been rude to Complainant, which they dealt with by counseling the individuals. Other instances of
harassment appear to constitute the ordinary exercise of supervisory authority, such as counseling
Complainant for suspected sick leave abuse or reporting that Complainant arrived late. We
therefore find that the alleged harassment was insufficiently severe or pervasive to constitute a
hostile work environment. Accordingly, Complainant has failed to establish a prima facie case of
harassment by the preponderance of the evidence in the record.

Denial of 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 Reasonable
Accommodation Enforcement Guidance. 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).

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 Reasonable Accommodation Enforcement Guidance at
Question 6. 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.
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See Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000).

Here, the Agency asked Complainant for additional medical documentation to substantiate her
need to switch to the day shift as a reasonable accommodation. Complainant contended that the
Agency already had medical documentation that justified her need to switch shifts because she had
provided the Agency with medical documentation with her FMLA request. However, a May 1,
2013 FMLA application signed by Complainant’s physician indicated that she would need time
off work to attend therapy and doctor’s appointments, but it did not address her need to switch
shifts. Unlike Complainant’s need for leave as a reasonable accommodation for flare ups of her
disabilities, we find that her need for a shift change as a reasonable accommodation was not known
or obvious. Therefore, the Agency’s request for additional medical documentation was reasonable
under the circumstances, and the preponderance of the evidence in the record does not establish
that the Agency failed to reasonably accommodate Complainant.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM in part and REVERSE and REMAND in part the
Agency’s final decision because the preponderance of the evidence in the record establishes that
the Agency failed to protect Complainant’s confidential medical records and made an
impermissible medical inquiry. We find that the preponderance of the evidence in the record does
not otherwise establish that discrimination occurred.

ORDER

The Agency is ORDERED to take the following remedial actions:

1. Within ninety (90) calendar days of the date this decision is issued the Agency shall
conduct a supplemental investigation concerning Complainant’s entitlement to
compensatory damages and determine the amount of compensatory damages due
Complainant. Within thirty (30) calendar days of determining the amount of compensatory
damages due Complainant, the Agency shall pay that amount to Complainant.

2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide a minimum of four hours of in-person or interactive EEO training regarding the
confidentiality of medical information under the Rehabilitation Act and impermissible
medical inquiries, to S3, and to S1 and the four additional coworkers found by PO1 to have
accessed Complainant’s medical records.

3. Within sixty (60) calendar days of the date this decision is issued, the Agency shall consider
disciplinary action against all Agency employees found to have discriminated against
Complainant by accessing her confidential medical records, including S1. The Agency
shall report its decision to the Commission. If the Agency decides to take disciplinary
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action, then it shall identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose discipline.

4. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a
notice in accordance with the statement entitled “Posting Order.”

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation, including evidence that the corrective action has been implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its St. Louis, Missouri VA Medical Center (VAMC) facility
copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney's fees in accordance
with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g).
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The Agency’s final report must contain supporting documentation when previously not uploaded,
and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

March 26, 2019
Date