Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-1679-0500 (E.E.O.C. May. 28, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120131679

Agency No. 200I-0317-2012100701

DECISION
On March 21, 2013, Complainant filed an appeal from the Agency’s February 28, 2013, final
decision concerning her 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. 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 Rating Veterans
Service Representative (RVSR), GS-12, at the Agency’s Regional Office in St. Petersburg,
Florida.

On February 23, 2012, Complainant filed an EEO complaint, which was subsequently
amended. Complainant claimed the Agency discriminated against her when:

A. Complainant was discriminated against on the bases of race (African-American) and
in reprisal for protected EEO activity when on November 10, 2011, Person A
instructed her to take annual leave for the time she was late arriving to her office.
B. Complainant was subjected to hostile environment harassment based on race
(African American), sex (female)1
1. In June 2011, an Assistant Service Center Manager (Person B) inquired about
the status of Complainant’s EEO complaint.
, and in reprisal for protected EEO activity when
from June 2011 through May 2, 2012, the following occurred:

1 Complainant alleged the basis of sex only with regard to incident 20.
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2. In July 2011, Complainant was given the “alternate reasonable accommodation”
of battery-operated fishing socks, which mocked her condition because
peripheral neuropathy with poor circulation already compromised the movement
of her feet and adding the extra weight of the required “huge D-sized batteries”
would not help.
3. In September 2011, after Complainant informed the Chief of Human Resources
(HR)/HR Manager, that the space heater she was issued was “emitting horrible
fumes,” the HR Manager replied that the heater was “safe” and Complainant
had “nothing to worry about.”
4. In September 2011, management removed Complainant’s space heater “without
her permission” because, according to the HR Manager she was concerned
about Complainant’s health.
5. On October 13, 2011, Complainant was issued a letter of proposed removal and
placed on administrative leave for alleged “false reporting,” and she was not
given the opportunity to have union representation present.
6. On October 14, 2011, after Complainant told her previous supervisor (Person
C) that she received a proposed removal, he looked “shocked,” told her the
proposed action could be changed, and when she asked him why he did not
come to her directly to address the issues, he replied, “I am so sorry.”
7. On October 14, 2011, the EEO Manager told Complainant that the Director did
not want to fire her but that she did want her to admit her error in duplicating
numbers in the data base.
8. On November 3, 2011, HR Specialist 1 told Complainant that if she could not
meet at the time HR scheduled, she would have to take annual leave even
though she had been placed on administrative leave.
9. In a memorandum dated November 9, 2011, the HR Manager falsely stated that
Complainant tried to complicate matters on November 7, 2011, by informing
HR that Person D was her designated representative.
10. In another memorandum dated November 9, 2011, HR added a new charge of
“deliberately failing to follow supervisory instruction,” which had not been
identified as an issue in the proposed removal letter dated October 14, 2011.
11. On November 10, 2011, when Complainant and Person D arrived at the
Assistant Service Center Manager's (Person A) office to review evidence,
Person A informed Complainant that because she was not on time to the
meeting, she needed to make arrangements to take annual leave for the amount
of time she was late.
12. On November 10, 2011, Person A only allowed Complainant to print evidence
and issues pertaining to her proposed removal letter and along with several other
management officials, “humiliated and embarrassed” Complainant during the
process by watching over her in “close proximity.”
13. On November 10, 2011, when Complainant went to her car to retrieve an
evidence folder she was told by security that Person A had them on the lookout
for her as if she was a criminal.
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14. On November 30, 2011, Complainant was removed from a new team roster and
the Agency directory prior to her meeting with the Director and HR which was
scheduled for December 1, 2011.
15. During the meeting on December 1, 2011, the Director told Complainant her
name was on another roster; however, she was not able to produce the roster on
which Complainant was listed.
16. During the meeting on December 1, 2011, the Director stated that she
personally felt Complainant’s actions were malicious and, despite what the
evidence showed, felt she “intended to harm the veteran.”
17. During the meeting on December 1, 2011, the Director refused to provide
Complainant’s attorney a spread sheet of other employees whose work had been
reviewed 100% and were not on a Performance Improvement Plan (PIP), stating
that “would be a violation of privacy.”
18. On December 1, 2011, although Complainant’s attorney was told by HR staff to
use Complainant’s badge to secure an area on the third floor, when Complainant
arrived and attempted to swipe her badge it had already been deactivated.
19. On February 7, 2012, Complainant received her removal letter in which she was
instructed to make an appointment with Person C to pack up her personal
belongings, a requirement she felt was another strategy by management to
humiliate, embarrass, and ridicule her image because, with her desk being
located in the middle of the Service Center, it would allow the other employees
to see her walking out the door.
20. On February 9, 2012, in response to Complainant’s question as to why she had
to make an appointment to retrieve any personal belongings while “all other”
employees’ personal belongings simply get mailed, HR Specialist 2 explained
that “they had been getting an error when they previously tried to send some
things” to her; however, he had no response when Complainant pointed out that
other documents (including the removal letter) had actually been sent to the
same address (sex was added to this event only).
21. On February 9, 2012, HR Specialist 2 asked Complainant “off the record” if
she would rather resign in lieu of termination, adding that it would help her “get
(her) benefits easier.”
22. On February 17, 2012, after Complainant’s husband retrieved her belongings
from HR Specialist 2, she noticed there were many things in the box that did not
belong to her, such as “filthy, dirty socks, maxi-pads, a government clock, dirty
McDonald’s restaurant receipts, athlete’s feet fungus foot spray, and Personal
Identifiable Information (PII) pertaining to a veteran.”
23. On April 25, 2012, and May 1, 2012, Complainant learned that management
had inordinately delayed the processing and submission of her disability
retirement forms to the Office of Personnel Management (OPM).
24. On May 2, 2012, Complainant learned that management had accessed her
medical records/documentation without her authorization.
25. On June 23, 2011, during an electronic mail discussion with an attorney with the
attorney from the Office of General Counsel in which Complainant asked about
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the status of her space heater, the attorney replied that the space heater was
never discussed and added that Complainant had not personally given medical
documentation (which the attorney had since 2010) to HR.

The Agency issued a Notice of Partial Acceptance in which it accepted claims (A) and (B)(1) –
(24). The Agency dismissed claim (B)(25) for failure to state a claim and determined it was a
collateral attack on the Agency's defense. The Agency noted that the attorney was responding
to Complainant’s electronic mail message/request while serving in her capacity as an Agency
representative. The Agency dismissed that event pursuant to 29 CFR §1614.107(a)(1) for
failure to state a claim.

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
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

On appeal, Complainant claims the Agency made several errors.2

With regard to claim (A),
Complainant claims the Agency incorrectly stated that Person A was unaware of Complainant’s
prior EEO activity. Complainant also claims that Person D submitted a statement saying
Complainant was on time for the meeting and management was late. Complainant claims
Person D confirmed that management had Complainant’s badge deactivated in an effort to
make sure Complainant could not get into the room as scheduled. Complainant notes the
Agency had rescheduled her appointment date to review documents several times.
Complainant states that once the Agency finally scheduled the appointment to review
documents, it conflicted with her attorney’s schedule. Complainant states she asked to have
the time adjusted by a couple of hours. Complainant states she never told the Agency that she
could not come into the office because she had other appointments.
With regard to claim (B)(1), Complainant claims the Agency never addressed the basis of
reprisal. Complainant notes that the Agency decision stated Person B was not aware of her
protected EEO activity.

With regard to claims (B)(2) – (4), Complainant states the Agency failed to address that she
had a finding of disability discrimination for denial of reasonable accommodation.
Complainant states the removal of her space heater without her knowledge or permission and
allowing her to sit for a “long period of time” without her reasonable accommodation or an
alternative accommodation was acting in bad faith and violated the Rehabilitation Act.

2 While Complainant states the AJ made several errors, we note this case did not proceed to a
hearing before an AJ. Thus, we re-characterize Complainant’s claims of AJ error as claims
the Agency committed the alleged errors.
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With regard to claims (B)(5) – (7), Complainant alleges that the Agency never acknowledged
that Coworker 1, Coworker 2, and Coworker 3 were named as comparatives who were treated
differently. Complainant cites the Merit Systems Protection Board (MSPB) decision dated
March 15, 2013, where the MSPB found the Agency failed to prove its charge of falsification
and reversed the Agency’s removal of Complainant.

With regard to claims (B)(14) – (17), Complainant claims the evidence showed that her name
was removed prematurely from the Agency’s directory and her team roster. Complainant also
alleges that the Agency failed to produce documents showing all the employees who were
under 100% review. Complainant notes that the supervisor of the VBIT 1C (Person E) Team
stated Complainant was never assigned to his team. Complainant cites a memorandum from
Person F stating Complainant was assigned to the VBIT 1C Team on November 23, 2011.
Complainant argues the Agency was being dishonest by falsifying a document stating she had
been transferred to another team when they had already decided to terminate her.

With regard to claims (B)(19) – (22), Complainant disputes that HR Specialist 2’s behavior of
boxing up and sending Complainant her alleged belongings was ordinary office conduct.
Complainant notes the box included tampons, maxi-pads, dirty restaurant receipts, balled-up
scratch paper, dirty sneakers, athlete’s foot powder, dirty socks, and discharge documents
belonging to another veteran. Complainant states she had already told HR Specialist 2 that she
had removed all of her personal items from the building as instructed following her proposed
termination letter on October 14, 2011.

With regard to claims (B)(23) – (24), Complainant states the Agency failed to consider that she
had been terminated from the Agency for more than two months prior to these incidents.
Complainant states she submitted her application for Disability Retirement benefits directly to
the Workload Management Center for OPM. Complainant denies having interaction with the
St. Petersburg Regional Office. Complainant states as she was no longer a part of the Agency,
the Agency had no reason to pull her medical documentation without her consent.
Complainant states that she contacted OPM and she says that they told her that her file should
be routed to the workforce office in Topeka, Kansas who handled disability retirement.

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. (November 9, 1999) (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”).
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At the outset, we note that Complainant does not challenge the Agency's dismissal of claim
(B)(25). The Commission has the discretion to review only those issues specifically raised in
an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
9-10 (November 9, 1999). Accordingly, we will not address the dismissal of claim (B)(25).
Moreover, we note Complainant does not challenge the Agency’s definition of the issues in her
complaint.

With regard to claim (A), Complainant claims that on November 10, 2011, Person A informed
her that she had to take annual leave for the time she was late arriving to her office. In its
final decision, the Agency determined that Person A was not aware of Complainant’s protected
EEO activity. The Agency concluded that Complainant failed to establish a prima facie case of
reprisal.

On appeal, Complainant claims the Agency incorrectly stated that Person A was unaware of
Complainant’s prior EEO activity. We note the record reveals that Person A stated she was
aware of Complainant’s EEO activity; however, she stated that she did not recall when she
learned of Complainant’s EEO activity.

For purposes of this decision, we assume Complainant established a prima facie case of
reprisal. The Agency stated that Complainant arrived late for the meeting on November 10,
2011, and that Person A informed Complainant to request annual leave for the amount of time
she was late to the meeting. The Agency explained that Complainant was on paid
administrative leave and that when she reported to the meeting late, she was tardy and thus she
had to request leave to cover the absence.

A review of Person D’s statement reveals that Complainant’s characterization of the statement
differed from what the statement actually said. Specifically, Person D confirmed that
management had Complainant’s badge deactivated and that she instructed Complainant to meet
her in the union office so she could escort Complainant to the meeting on the third floor.
Person D explained that upon Complainant’s arrival to the union office, Complainant had
several questions regarding the proposed removal action and “[t]his consequently delayed the
start time by approximately 10-15 minutes.” Thus, we find the record supported the Agency’s
contention that Complainant arrived late for the meeting on November 10, 2011. As
Complainant was on paid administrative leave, Person A requested she take paid leave for the
time she was late. In her affidavit, Complainant states she never put in for leave related to this
incident.

With regard to claim (B)(1), Complainant stated that shortly after a settlement hearing in June
2011, Person B inquired about the status of her EEO complaint. In his affidavit, Person B
stated he did not inquire about the status of Complainant’s EEO complaint. We find
Complainant failed to show by a preponderance of evidence that this incident occurred.

We note that claims (B)(2) – (4) relate to Complainant’s previously requested reasonable
accommodation of a space heater. With regard to claim (B)(2), Complainant claimed that in
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July 2011, she was given the “alternate reasonable accommodation” of battery-operated fishing
socks which she claimed mocked her condition of peripheral neuropathy with poor circulation.
Complainant stated the socks were heavy and that she could not wear them with shoes and they
altered her balance while walking around the building. The HR Manager explained that while
the Safety Department researched heaters, the Agency provided Complainant the battery
operated socks which provided heat for the lower extremities as a “temporary option.” The
HR Manager stated that when Complainant told her that the battery operated socks were not
approved by Complainant’s doctor, they went “back to the drawing board” to look for other
options. We find no indication the Agency offered the battery operated socks in bad faith or in
an attempt to mock Complainant’s condition.

We note that claims (B)(3) and (B)(4) both relate to Complainant’s receipt of a space heater as
a reasonable accommodation. With regard to (B)(3), Complainant stated that in September
2011, after she informed the HR Manager that the space heater she was issued was “emitting
horrible fumes,” The HR Manager replied that the heater was “safe” and Complainant had
“nothing to worry about.” With regard to claim (B)(4), Complainant stated that late in
September 2011, management removed her space heater without her permission because the
HR Manager stated she was concerned about Complainant’s health. Complainant stated that
Coworker 4 told her that she had passed out because of the fumes from the space heater and
that as a result, the heater was removed. Complainant stated that Coworker 4 informed her
that the Regional Office had not followed the proper precautions of properly ventilating the
heaters in an open area for 24-48 hours before they were placed inside the office.

The record reveals Complainant was provided a space heater on August 31, 2011. The HR
Manager stated that on September 8, 2011, Complainant sent an electronic mail message to HR
stating that her heater was “emitting horrible fumes.” The HR Manager noted that HR alerted
the Support Services Division (SSD) who purchased the heater. The HR Manager explained
that Person G of SSD and HR Specialist 3 went to check on the heater. The HR Manager
noted that Complainant was not in the office on this day because she worked from home and
reported to the office once per week. The HR Manager stated that when they checked the
heater, they did not smell anything. The HR Manager noted they were later informed by
Safety that the type of heater that was provided to Complainant had a completely sealed inner-
system, therefore, no oil could be leaking out and that the fumes referenced must be the smell
of “heat” itself. The HR Manager stated she told Complainant this information but stated if it
was bothering her, they could remove it and look for other options. The HR Manager stated
that Complainant questioned the safety of the heater again and the HR Manager told her that
the heaters were not HR Manager’s area of expertise. The HR Manager explained that she
told Complainant that the safety of Complainant and others around Complainant was her first
concern. As a result, the HR Manager stated she recommended that they pull Complainant’s
heater and ask Safety to examine it over a period of a few days. Complainant acknowledged
her heater was returned and “that was the end of the heater situation.” The issue of disability
discrimination regarding the space heater is not at issue in this complaint but is at issue in
another complaint filed by Complainant.

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We note that claims (B)(5)-(10) relate to issues occurring while Complainant’s proposed
removal was pending. The record reveals Complainant was ultimately issued a Notice of
Removal on February 7, 2012, with an effective date of February 15, 2012. Complainant
appealed the removal to the MSPB which reversed the Agency’s decision removing
Complainant and ordered the Agency to restore Complainant effective February 15, 2012. We
note the Agency’s decision to issue the Notice of Proposed Removal and the subsequent Notice
of Removal are not at issue in this case.

With regard to claim (B)(5), Complainant stated that on October 13, 2011, she was issued a
letter of proposed removal and placed on administrative leave for alleged “false reporting,”
and was not given the opportunity to have union representation present. Person F noted that
she met with Complainant at 3:45 p.m. on the day at issue and stated she does not know if
Complainant attempted to contact or obtain a union representative. Person F stated that an
employee is not entitled, as a matter of right, to union representation for notification of a
proposed action.

With regard to claim (B)(6), Complainant asserted that on October 14, 2011, she had a
conversation with Person C regarding the proposed removal and he looked “shocked,” and told
her the proposed removal could be changed. Complainant stated that when she asked him why
he did not come to her to address the issues, he replied that he was sorry. Person C noted that
on October 14, 2011, Complainant approached his desk to drop-off some rating documents.
Person C stated that he asked Complainant what happened, and she told him that Person F was
proposing to fire her. Person C stated that he responded saying, “That’s pretty serious.”
Person C denied expressing “shock” by the news of his information. Person C noted that he
received an electronic mail message from Complainant on October 13, 2011, in which she
informed him that she received a proposal for the removal. Thus, Person C knew the general
situation prior to October 14, 2011. Person C stated that Complainant then asked him why he
had not discussed the matter with her. Person C stated he reminded Complainant that several
months earlier he confronted her about the duplicate work credits he found in the ASPEN log
and that she told him she had been suspended previously for making duplicate entries. Person
C stated he never told Complainant that the pending action could be changed.

With regard to claim (B)(7), Complainant claimed that on October 14, 2011, the EEO Manager
told Complainant that the Director did not want to fire her but did want her to admit her
duplicating numbers in the data base. The EEO Manager denied making the statement alleged
to Complainant. The EEO Manager stated that she did not have any knowledge of the
proposed removal until Complainant mentioned it to her. The EEO Manager stated that during
her meeting with Complainant she suggested that when Complainant meets with the Director
she tell the Director she was sorry “if she mistakenly entered cases more than once in the
database” and state that it would never happen again. The EEO Manager stated she also
suggested that Complainant “show remorse” and “take ownership” for anything she may have
done that was inappropriate. Although Complainant cites the MSPB decision dated March 15,
2013, where the MSPB found the Agency failed to prove its charge of falsification and
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reversed the Agency’s removal of Complainant, we reiterate that the actual removal issue is
not before the Commission.

With regard to claim (B)(8), Complainant stated that after she receiving the proposed removal,
she and her union representative were working with HR Specialist 1 to set up a time for
Complainant to review the evidence upon which her proposed termination was based.
Complainant contended that she was trying to schedule a meeting with her attorney during the
same time period and HR Specialist 1 changed the date of the appointment several times.
Complainant stated that on November 3, 2011, HR Specialist 1 told her that if she could not
meet at the scheduled time she would have to take annual leave even though she had been
placed on administrative leave. Complainant noted that she never requested annual leave. She
stated that she cancelled her appointment with her attorney and went into the office on the day
at issue.

HR Specialist 1 explained that Complainant was on paid administrative leave and she was
required to report to work any time during the normal business hours if requested by
management. HR Specialist 1 noted that if Complainant could not report as requested by
management, she was expected to request leave for any period of time she would be
unavailable, just as one would normally do if they were in a paid duty status and could not
report to work. HR Specialist stated that on November 3, 2011, she was scheduling a time for
Complainant to report to the Regional Office, but Complainant informed her that she could not
make it at the appointed time because she had a prior appointment. HR Specialist 1 stated that
she informed Complainant that if she could not report to work because of a personal or medical
appointment, then she would be required to request annual leave for her appointment.

With regard to claim (B)(9), Complainant stated that the HR Manager falsely stated she was
trying to complicate matters in a memorandum dated November 9, 2011. The record contains
a November 9, 2011 memorandum from Human Resources to the American Federation of
Government Employees (AFGE), in which the HR Manager informed the AFGE that in a
November 4, 2011 memorandum Person H indicated that she was the designated representative
for Complainant. The HR Manager noted that at the time, a signed designation of
representation form was requested; however, no designation form was received. The HR
Manager stated that “To complicate matters, on November 7, 2011, [Complainant] informed
HR that [Person D] is her designated representative.” The memorandum noted that on
November 8, 2011, Person H requested additional information related to Complainant’s case.
The memorandum noted that management is still unclear who Complainant has identified as
her designated representative. The memorandum noted this information was needed in order
to determine who is authorized to receive case related information.

In her affidavit, the HR Manager confirmed that the memorandum informed AFGE that
Complainant appeared to have two representatives. The HR Manager stated that bargaining
unit employees are entitled to one representative, not two. The HR Manager explained that
management was unclear who Complainant had identified as her designated representative.
The HR Manager stated the information was necessary in order to determine who was
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authorized to receive case related information. The HR Manager noted that the sentence “To
complicate matters” did not state or imply that Complainant was complicating matters, but
rather that having two representatives was complicating the situation.

With regard to claim (B)(10), Complainant stated that in a November 9, 2011 memorandum,
management added a new charge of “deliberately failing to follow supervisory instruction” to
her proposed removal. Complainant claimed that management removed the additional charge
from the proposed removal when her attorney addressed the matter. The HR Manager stated
that there was another memorandum issued but it did not include a charge of “deliberately
failing to follow supervisor instruction.” The HR Manager stated that Complainant took the
statement in the memorandum out of context. The HR Manager explained that HR was
responding to AFGE regarding a union request for information. The HR Manager noted that
section 2b was a request from AFGE for the Agency to cite the specific charges in the Table of
Penalties relied upon in management’s proposal to remove Complainant. The HR Manager
noted the Agency’s response explained the Table of Penalties and was not a list of all possible
types of misconduct and punishments. The HR Manager stated that the Agency cited two
entries from the Table of Penalties that were analogous in terms of severity to the
Complainant’s proposed removal: #25 Falsifying official government records or documents
and #17 Deliberate refusal to carry out any proper order.

We note that claim (B)(11) is the same as claim (A) discussed above.

With regard to claim (B)(12), Complainant claimed that she was harassed on November 10,
2011, when she was in the process of reviewing the evidence in Person A’s office.
Complainant stated that several managers, IT specialists, and security personnel were present
during the meeting. Complainant stated that she was treated “like a criminal.” Complainant
claimed she was embarrassed and humiliated that she was not allowed to get evidence to
support her case.

In response, the HR Manager stated there were only a few people (HR Staff, Person A,
Complainant and her representative) present when she examined the evidence. The HR
Manager stated that it was conducted in a private area, so humiliation and embarrassment were
unlikely. The HR Manager noted that as a matter of practice, confidential documents
containing PII are protected from disclosure. Thus, the HR Manager stated the Agency would
not permit an employee on authorized absence to be alone with veteran records, and the
Agency would watch closely to ensure that no information was taken from the room or
recorded inappropriately. The HR Manager stated that although the Agency does not believe
Complainant would engage in identity theft, the Agency has an affirmative obligation to protect
veteran information. The HR Manager explained that the information to which Complainant
had access could have resulted in a breach of veteran information if she were permitted to take
information from the room. Thus, the HR Manager stated that they routinely “watch over”
employees examining documents to ensure that none of the information is compromised.

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Additionally, Person A noted that Complainant was allowed to print every document that she
identified as necessary for her defense. Person A stated Complainant was given access to all
the programs she requested. Person A noted Complainant reviewed records in Outlook,
ASPEN, CAPRI, and hard copy files. Person A stated Complainant did not request access to
any other programs or documents. Person A acknowledged that there were some documents
Complainant attempted to locate but did not find. Person A noted that Complainant stated she
had hard copies of electronic mail messages from RVSRs that she needed in her possession and
these hard copies would suffice. Person A noted that Complainant attempted to find electronic
mail stating that work at home RVSRs were to print ratings only the day before coming into
the office. Person A attempted to locate this as well but she was unsuccessful. However,
Person A conceded that this was Veterans Service Center (VSC) policy and noted that
Complainant’s AFGE representative was present when Person A conceded this. Moreover,
Person A noted that Complainant had difficulty accessing ASPEN. Person A stated she logged
in under her own password and allowed Complainant to access her own records. Person A
explained that whenever difficulties with access arose, she, along with the NSC representative
and the ISO attempted to assist Complainant.

With regard to claim (B)(13), Complainant stated that on November 10, 2011, when she went
to her car to retrieve an evidence folder she was told by security that Person A had them on the
lookout for her as if she was a criminal. The HR Manager confirmed that it was the Agency’s
practice to notify the VA Police at the front entrance of the building anytime someone has been
placed on authorized absence or has been issued a letter restricting access to the building. The
HR Manager explained that the notice given to the VA Police does not specify the reason the
employee is out and does not provide derogatory information, but that it provides security
information relevant to the security status of the employee.

Complainant stated that claims (B)(14) and (B)(15) go together. Complainant stated that she
received her proposed termination letter and was scheduled for a hearing on December 1,
2011. Complainant stated that prior to the hearing she was allowed to gather all her evidence
and write her statement and a rebuttal of her proposed termination. Complainant stated that
prior to the December 1, 2011 hearing her representative mentioned to the Director that it
looked like discrimination that Complainant’s name would be removed from the Agency
directory prior to her due process hearing. Complainant stated her representative asked if the
Director could present a copy of the roster because the Director said Complainant was not
removed but was transferred to another team. Complainant stated that the Director could not
produce the roster. Complainant stated her representative also questioned why neither he nor
Complainant were informed if Complainant was transferred to another team. Complainant
stated that then a new backdated roster appeared which transferred her to V-BIT 1 team,
effective November 14, 2011. Complainant noted that Person E was the supervisor of that
team and he was not aware of the transfer.

The Director stated she could not produce the roster that contained Complainant’s name during
the meeting because she did not have it with her. The Director stated that after the meeting
she confirmed with the division chief that there was a roster with Complainant’s name on it.
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Person F stated that Complainant was not removed from the VSC roster prior to her oral reply
meeting with the Director. Person F stated Complainant was not removed from the roster until
the Director made the decision to remove her from federal service. Person F explained that on
November 17, 2011, an internal memorandum was drafted to move Complainant from
Decision 4 to VBIT 1C effective November 23, 2011. Person F noted Complainant remained
on that team until the removal decision was effected on February 15, 2012. Person F noted
that employee movement within the VSC was very common. Person F stated employees are
often moved between teams to meet changing workloads, so this move in no way related to her
pending disciplinary action.

The file contains a spreadsheet showing that effective November 23, 2011, Complainant was
assigned to VBIT 1C to coach Person E. Person E stated that Complainant was never assigned
to his team; however, he stated they were both assigned to the same Stream. Person E stated
he was never Complainant’s direct supervisor. He noted at the time Complainant was assigned
to a Decision team, he was the Assistant Coach of a Pre Team.

With regard to claim (B)(16), Complainant stated that during the meeting on December 1,
2011, the Director stated she personally felt Complainant’s actions were malicious and despite
what the evidence showed, she felt Complainant “intended to harm the veteran.” The Director
explained that during the meeting, based on the evidence reviewed, it appeared that the actions
Complainant took did harm veterans in that she reported and took credit for working claims for
veterans that she did not help through completion of their claim. The Director explained that
she did not say that Complainant intended to harm veterans since she had no insight into
Complainant’s intentions.

With regard to claim (B)(17), Complainant stated that during the meeting on December 1,
2011, the Director refused to provide Complainant’s attorney a spread sheet of other
employees whose work had been reviewed 100% and were not on a PIP, stating that “would
be a violation of privacy.” Complainant claimed her work was subjected to a 100% review
prior to the first incident charged in the proposed removal letter.

HR Specialist 2, stated that he was the note taker at the December 1, 2011 meetings. HR
Specialist 2 stated that he attended this meeting and was note taker for Complainant’s oral
reply at the meeting; however, he did not recall this specific request. HR Specialist 2 noted
that a review of the Summary of Oral Response did not indicate this specific request was made
or refused. Nevertheless, HR Specialist 2 stated there is no discovery process in disciplinary
actions. HR Specialist 2 noted the Agency is required to provide a copy of the evidence relied
upon when requested by the employee. HR Specialist 2 stated the Agency complied with
Complainant’s request for evidence. HR Specialist 2 stated when Complainant requested
access to other records she felt necessary to formulate her defense, the Agency granted access.

On appeal, Complainant asserts that the Agency failed to produce documents showing all
employees who were under a 100% review. Complainant stated that the Agency only
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produced documents showing the employees that were on a PIP and under 100% review.
Complainant states she was not on a PIP when the Agency placed her under 100% review.

We note that the record indicates that at the VSC there were two situations where employees
are placed on 100% review of their work products: (1) employee is on a PIP; and (2) employee
has completed formal Challenge training for a Claims Assistant, VSR, or RVSR position but is
not yet proficient enough in their job to perform their job independently. Complainant
concedes the Agency produced the information showing the employees that were on a PIP and
under 100% review. The record reveals that the Agency also produced a list of employees
who were in training and were under 100% review.

With regard to claim (B)(18), Complainant stated that on December 1, 2011, although her
attorney was told by HR staff to use Complainant’s badge to access a secure area on the third
floor, when Complainant arrived and attempted to swipe her badge, it had already been
deactivated. The HR Manager stated that as a matter of practice for employee access to the
building is shut off when an employee is placed on authorized absence pending proposed
disciplinary action. The HR Manager noted that access is shut off by deactivating the
employee’s badge. The HR Manager stated it was unlikely that her staff would have told
Complainant’s attorney to use the badge to gain access to the secure third floor, especially
when they routinely go down and escort the employees to the third floor. The HR Manager
stated she questioned all her staff regarding this claim and no one had a recollection of these
events. The HR Manager stated that the office uses the same practice with all employees on
authorized absence.

We find claims (B)(19), (B)(20) and (B)(22) are related in that they had to do with
Complainant retrieving her personal items from the Agency following her removal. With
regard to claim (B)(19), Complainant stated that on February 7, 2012, she received her
removal letter, in which she was instructed to make an appointment with Person C to pack up
her personal belongings, a requirement she felt was another strategy by management to
humiliate, embarrass, and ridicule her image because, with her desk being located in the
middle of the Service Center, it would allow other employees to see her walking out the door.
With regard to claim (B)(20), Complainant also stated that on February 9, 2012, in response to
Complainant’s question as to why she had to retrieve her personal belongings while “all other”
employees’ personal belongings simply get mailed, an HR Specialist 2 explained that “they had
been getting an error when they previously tried to send some things” to her; however, he had
no response when Complainant pointed out that other documents (including the removal letter)
had actually been sent to the same address. With regard to claim (B)(22), Complainant stated
that on February 17, 2012, after Complainant’s husband retrieved the belongings from HR
Specialist 2, she noticed there were many things in the box that did not belong to her.

HR Specialist 2 stated there was no intent to harass or humiliate Complainant, but that the
instruction in the removal letter is standard language used to ensure that employees are aware
of how to retrieve their personal belongings. Furthermore, HR Specialist 2 stated the
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paragraph does not otherwise limit what arrangements can be made with the supervisor, only
that the employee is to contact the supervisor to make arrangements.

Complainant’s husband retrieved her personal belongings from HR Specialist 2 on February
17, 2012. According to Complainant, there were many things contained in her box of
belongings that did not belong to her such as “filthy dirty socks, maxi-pads, a government
clock, dirty McDonald restaurant receipts, athlete’s foot fungus spray, and PII pertaining to a
veteran.” HR Specialist 2 stated that he gave the box to Complainant’s husband. HR
Specialist 2 stated the exact contents of the box were not known to him beyond what was
readily visible. He stated the box of material had been provided by Complainant’s supervisor
and was represented as the personal contents of Complainant’s work area. HR Specialist 2
stated Complainant returned the items she identified as not belonging to her.

With regard to claim (B)(21), Complainant stated that on February 9, 2012, HR Specialist 2
asked Complainant “off the record” if she would rather resign in lieu of termination, adding
that it would help her “get (her) benefits easier.” HR Specialist 2 stated that he does recall
asking Complainant if she would prefer to resign without the removal appearing on her record
as a possible resolution of the then-pending removal. HR Specialist 2 did not recall telling
Complainant that it would make getting her benefits easier or what benefits might have been
referred to at that time.

With regard to claim (B)(23), Complainant claimed that on April 25, 2012, and May 1, 2012,
Complainant learned that management had inordinately delayed the processing and submission
of her disability retirement forms to OPM. Complainant stated she was told by OPM that she
had to wait 31 days after being separated from the VA Regional Office St. Petersburg, Florida
before she could apply for disability retirement through OPM without going through the VA
Regional Office. Complainant stated she sent her disability retirement paperwork to OPM
Topeka, Kansas on the 31st

day. Complainant also stated that OPM told her that the VA
Regional Office was delaying sending back two forms they needed to process her disability
retirement request. Complainant stated that OPM told her that HR Specialist 4 was working
on her retirement paperwork and that HR Specialist 4 stated she could not send the forms
because the VA Regional Office was trying to mediate a settlement that would incorporate
Complainant being removed for disability retirement.
The HR Manager stated that OPM is not located in Topeka, Kansas. Rather, The HR Manager
stated that OPM retirements are processed in Boyers, Pennsylvania. The HR Manager noted
that Topeka handled all VBA retirements at the time Complainant submitted her disability
retirement paperwork. The HR Manager noted the 31-day rule states that after an employee
has been separated for 31 days, it is the employee’s responsibility to submit the retirement
package directly to OPM within one-year of separation. The HR Manager stated that
Complainant submitted her retirement package through VBA Topeka instead of OPM. The
HR Manager noted that Topeka assisted Complainant as a courtesy, but they had no obligation
to process her application for retirement. Further, the HR Manager noted there is a portion of
the application that must be completed by the local HR office. The HR Manager does not
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dispute that Topeka was working with HR Specialist 4. The HR Manager noted that HR
Specialist 4 works on all the retirements from their office. The HR Manager acknowledged
that the Agency was in settlement talks with Complainant. The HR Manager stated the Agency
offered Complainant a settlement agreement that would change Complainant’s removal action
from misconduct and that would have benefited Complainant in her disability retirement
request. The HR Manager stated that it also would have changed the information the Agency
submitted on the certification portion of the retirement application, so they held off on sending
the information until they knew Complainant did not accept the settlement offer. Upon review,
we find no indication the Agency’s handling of Complainant’s retirement application to be a
pretext for discrimination.

Upon review, we find Complainant failed to prove by a preponderance of evidence that the
Agency subjected her to a hostile work environment as alleged. We find the Agency provided
legitimate, nondiscriminatory reasons for a number of the incidents alleged. Complainant
failed to show that the articulated reasons were a pretext for discrimination or retaliation.
Even if claims B(14), B(15), and B(22), occurred as alleged, we find that they do not rise to
the level of a hostile work environment even if discriminatory.

Finally, we note in claim (B)(24) Complainant claimed that the Agency accessed her medical
records/documentation without her authorization. The Agency concluded that the act of
accessing Complainant’s medical records in order to process her disability retirement
application was a medical inquiry within the meaning of the Americans with Disabilities Act
and the Rehabilitation Act.

EEOC regulations provide for the confidentiality of medical records, and make it clear that
information obtained regarding the medical condition or history of any employee shall be
treated as a confidential medical record, except that supervisors and managers may be
informed regarding necessary restriction on the work or duties of the employee and necessary
accommodation. 29 C.F.R. § 1630.14(c); see Valle v. U.S. Postal Service, EEOC Request
No. 05960585 (September 5, 1997), Short v. Dep’t of the Air Force, EEOC Appeal No.
01980456 (October 7, 1999). By its terms, this requirement applies to confidential medical
information obtained concerning “any employee,” and is not limited to an individual with
disabilities. See Hampton v. U.S. Postal Service

, EEOC Appeal No. 01A00132 (April 13,
2000). Employers have the burden of showing that disability-related inquiries and requests for
examinations are job-related and consistent with business necessity. EEOC Notice No.
915.002, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (July 27, 2000).
Upon review, we find the Agency demonstrated its access to Complainant’s medical
documentation regarding her disability was job-related and consistent with business necessity.
The HR Manager stated that her office requested a copy of Complainant’s medical
documentation because HR is required to certify to OPM whether reasonable accommodation
was granted related to the medical condition at issue in Complainant’s disability retirement
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application. In the present case, we find Complainant failed to show that the Agency’s action
to access her medical documentation violated the Rehabilitation Act.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 28, 2015