[Redacted], Kayce L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 23, 2022Appeal No. 2020004588 (E.E.O.C. Aug. 23, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kayce L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004588 Agency No. 2004-0565-2018105026 DECISION On August 17, 2020, 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 July 15, 2020, 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. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Physician Assistant at the Agency’s Fayetteville VA Medical Center in Fayetteville, North Carolina. On October 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (fibromyalgia) when: 1. On July 19, 2018, the Associate Chief of Staff for Mental Health (ACoS) denied her request for a reasonable accommodation; 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. 2020004588 2 2. The ACoS forced her to use a combination of annual leave, sick leave, compensatory time, and leave without pay from May 9 to July 19, 2018 because she did not receive 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that Complainant did not establish that she was denied a reasonable accommodation because while Complainant did not receive the accommodation she requested, the Agency provided her with an alternative accommodation. The decision further noted that the Agency explained that the delay in making the decision on Complainant’s accommodation was due to the need to conduct research and planning to ensure that Complainant would still be able to perform the essential functions of her position. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.2 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”). We find that the Agency’s decision accurately recounted the relevant material facts and correctly identified the legal standards to prove that Complainant. We also note that the Agency does not dispute that Complainant is a qualified individual with a disability. Complainant alleges that she was denied a reasonable accommodation because the Agency did not provide her with an accommodation until August 1, 2018, although she submitted her reasonable accommodation request on March 21, 2018. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. Unnecessary delays can result in a violation. Id. 2 On appeal, Complainant acknowledges that her appeal is untimely, but she argues that her appeal should be accepted because she was on extended sick leave and therefore did not actually receive the email containing the Agency’s decision until August 4, 2020. We therefore accept Complainant’s appeal as timely as it was filed well within 30 days of Complainant’s receipt of the decision. 2020004588 3 In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. See Robyn D. v. Dep’t of the Air Force, EEOC Appeal No. 2021000644 (May 19, 2021). Under the circumstances of this case, we do not find that the Agency’s delay in responding to Complainant’s reasonable accommodation request violated the Rehabilitation Act. The record indicates that Complainant first submitted her reasonable accommodation request seeking to be allowed to telework on March 21, 2018. See Report of Investigation (ROI) at 170. The Agency requested additional documentation from Complainant on April 4, 2018, which she provided on April 16, 2018. See ROI at 211. Thereafter, on May 24, 2018, the Agency held a meeting with Complainant to discuss her accommodation request. See ROI at 210. The Agency informed Complainant on July 24, 2018 that it could not provide her requested accommodation of telework because telework would not permit her to perform some of the essential duties of her position, but it offered an alternative accommodation. See ROI at 142-143. The evidence in the record does not indicate any unnecessary delay in providing the accommodation. Rather, the evidence shows the Agency made a good faith effort to respond to the accommodation request in a timely manner and communicated with Complainant during the process. While it is unfortunate that Complainant was not satisfied with the Agency’s speed in responding to her accommodation request, we cannot find that the passage of less than five months before the Agency offered Complainant an alternative accommodation was unreasonable. See Vance C. v. Social Sec’y Admin., EEOC Appeal No. 2019004817 (Sept. 17, 2020). To the extent Complainant argues there was an undue delay because she was offered the accommodation on August 1, 2018 but was not able to move into her new office for another month because of a pest issue, while unfortunate, it is not an indication of bad faith on the part of the Agency nor do we find that the additional delay of one month is unreasonable under the circumstances. Complainant argues that the Agency denied her a reasonable accommodation because it did not grant her request to telework. We find that Complainant has not established that she was denied a reasonable accommodation. While Complainant is entitled to an effective accommodation, she is not entitled to the accommodation of her choice. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). While Complainant disputes the Agency’s conclusion that some of the essential duties of her position require in- person contact, we note that this assertion is not supported by the record. 2020004588 4 The record includes a copy of the functional statement of Complainant’s position, which indicates that Complainant is required to perform periodic physical examinations of nursing home and domiciliary residents, draw blood specimens and other comparable lab procedures, and make daily rounds to observe each patient’s medical progress.3 See ROI at 265-66. Complainant also argues that she has been denied a reasonable accommodation because she has never received some of the agreed-upon alternative accommodations, such as a fan or heater and dimmer switches for the lights.4 We find that Complainant’s assertion of a denial of reasonable accommodation is not supported by the record because there is no indication that Complainant ever informed the Agency that the accommodation she received was ineffective or that she had any issues with it. The ACoS stated that she personally met with Complainant and her husband to inspect the provided office to make sure it was acceptable, and Complainant indicated that the office was fine. See ROI at 125-27. The ACoS stated that she has never heard from Complainant that there were any issues with her accommodation. See ROI at 126-27. While we are sympathetic to Complainant’s situation, the evidence in the record does not support her assertions that the Agency has, in fact, denied her an effective accommodation nor can the Agency be held responsible for Complainant’s failure to inform anyone if her accommodations were ineffective. Finally, we find that the Agency’s decision correctly identified the legal standards for Complainant to prove that she was subjected to disparate treatment on the basis of disability. We find that the record supports the Agency’s conclusion that, even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its action and Complainant has not established that the Agency’s reasons were a pretext for discrimination. 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 Complainant did not establish that she was denied a reasonable accommodation or subjected to discrimination as alleged. 3 We further note that Complainant initialed the functional statement to acknowledge her awareness and acceptance of these duties. See ROI at 265-66. 4 As an initial matter, we note that to the extent Complainant argues the Agency denied her a reasonable accommodation by not providing dimmer switches for the lights, the alternative accommodation offered by the Agency makes no mention of dimmer switches. The agreement indicates only that some form of eye protection would be provided if needed. See ROI at 144. 2020004588 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 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). 2020004588 6 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 August 23, 2022 Date Copy with citationCopy as parenthetical citation