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

Equal Employment Opportunity Commission

Dec 7, 2022

Appeal No. 2021004063 (E.E.O.C. Dec. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004063 Agency No. 200J-0657-2020102226 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 29, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency’s St. Louis Medical Center, John Cochran Division, in St. Louis, Missouri. On December 7, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (depression, anxiety, panic attacks) and in reprisal for prior protected EEO activity when: 1. Ongoing since December 2019, her reasonable accommodation request has been denied; 2. From January 13, 2020, and ongoing, she has been charged as Absent Without Leave (AWOL) on several occasions; 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. 2021004063 2 3. From March 3, 2020, and ongoing, she has been forced to take leave; 4. She was not selected for a non-competitive transfer to a different position; and 5. She was subjected to harassment based on the above incidents. Complainant does not challenge the framing of the complaint. 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 EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. Complainant did not file a brief on appeal. Regarding claim 1, the Agency denied Complainant’s reasonable accommodation request to transfer to another position at a different facility, Jefferson Barracks. The reasons for the denial that management provided on an Accommodation Request Determination form were that the requested accommodation would not be effective, Complainant did not provide medical documentation that supported her need for a transfer, and the accommodation would require the removal of an essential function of her job. The Agency further stated in the form that the residency program for which Complainant specifically was hired-the Medical-Surgical (Telemetry) unit-was not available at the Jefferson Barracks, and therefore moving her to that facility would have removed an essential function of her position. The Agency also wrote that her medical documentation did not provide sufficient information about why the John Cochran Division was an unacceptable environment or why her requested facility would have been an effective accommodation. In its final decision, the Agency further concluded that Complainant failed to show that she was a qualified individual with a disability because she did not provide any evidence of her medical conditions or that her requested accommodation-a transfer to a position in a different facility-would accommodate a limitation from which she suffered. Regarding claim 2, Complainant was charged AWOL on several occasions between January and February 2020, because she failed to follow the Agency’s leave procedures. In her affidavit, Complainant conceded that she often did not make her leave requests until after she returned from being absent. For some of her leave requests, Complainant did not have sufficient leave time to cover her absences. On all but two occasions, Complainant’s AWOL was changed to approved leave after she contacted her direct supervisor, Practice Nurse Manager. The two instances where the AWOL charge remained unchanged were when Complainant did not come to work or contact her supervisor. Regarding claim 3, in March 2020, the Agency required Complainant to take 22 days of unpaid leave because she had symptoms consistent with COVID-19 and ordered her to quarantine. At the time Complainant was instructed to take this leave, there was no authority for the Agency to pay her leave outside of her accrued annual or sick leave. 2021004063 3 However, in May 2020, Congress passed the Family First Coronavirus Relief Act (FFCRA), which granted paid leave to employees who quarantined and were therefore absent from work. After the passage of the FFCRA, Complainant’s unpaid leave during her forced quarantine was converted to paid leave. Regarding claim 4, Complainant asked management for a transfer to a position at the Jefferson Barracks. The Agency’s explanation for denying her the transfer was that she was part of a nurse residency program that required her to work with a specific unit and did not allow residents to move between programs. Complainant’s supervisor averred that Complainant was informed at the beginning of her residency that she would be unable to change specialties from telemetry. Because Jefferson Barracks did not have openings in telemetry, the Agency did not allow her to transfer. Based on the above, the Agency concluded that management provided legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual, and, in the case of claim 1, that management had not failed to reasonably accommodate Complainant. The Agency determined that Complainant could not establish that any of the Agency’s actions were based on Complainant’s protected characteristics. Regarding claim 5, the Agency concluded that because Complainant failed to show that the incidents in claims 1 through 4 were motivated by discrimination or retaliation, they could not constitute part of her harassment claim. Therefore, the Agency reasoned that because there were no remaining incidents as part of her harassment claim, Complainant failed to prove she was subjected to a hostile work environment. 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”). Regarding her request for reasonable accommodation, we will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. After a review of the record, we find that Complainant failed to show that she was a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant did not provide any medical documentation of her disability during the investigation or on appeal, and she has failed to establish that she provided the requisite medical documentation to the Agency as part of her reasonable accommodation request or during the interactive process. 2021004063 4 Complainant also could not perform the essential functions of her Registered Nurse position with her requested reasonable accommodation because her position did not allow her to move between units and there were no telemetry positions at the Jefferson Barracks. Moreover, in her affidavit, Complainant stated that she had no restrictions related to the performance of her job duties. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for its actions were pretextual. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination or retaliation. She was charged AWOL for not following proper leave procedures, and many of her AWOL charges were later converted to approved leave. Her unpaid leave in March 2022, which was due to a COVID-19 quarantine, was converted to paid leave after the FFCRA authorized the Agency to do so. She was not selected for a position in the Jefferson Barracks because her residency program did not allow her to change programs from telemetry and her requested facility did not have telemetry positions available. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021004063 5 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). 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. 2021004063 6 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 7, 2022 Date