Karen P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181875 (E.E.O.C. Sep. 20, 2019)

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

Karen P.,1
Complainant,

v.

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

Appeal No. 0120181875

Agency No. 200I-0010-2017102155

DECISION

On May 12, 2018, 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
April 13, 2018, 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. 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 the Agency’s final decision.

ISSUES PRESENTED

The issues presented are whether Complainant established that the Agency subjected her to a
hostile work environment and discrimination based on her disability (mental and physical) and
reprisal; and whether she was denied a reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contracting
Specialist/Construction Team 2, GS-12, at the Agency’s Service Area Offices, East Region in
Tampa, Florida.

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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Complainant averred that she has the conditions of thoracic coronary artery aneurysm, angina
pectoris, major depressive disorder, panic disorder, and other conditions related to her heart
conditions, which were diagnosed on various dates beginning in September 2000. Report of
Investigation (ROI), at 65.

Complainant learned of her aneurysm in October 2016 and shortly thereafter, Complainant
requested information about the Agency’s Reasonable Accommodation Program. ROI, at 534.
On October 20, 2016, the Agency’s Local Reasonable Accommodation Coordinator (LRAC)
emailed Complainant to introduce himself as the point of contact for reasonable accommodations
and attached the forms that Complainant would need to submit with her reasonable
accommodation request. Id. at 532-533. S1 highlighted that the VA Form 0857e should be
completed by Complainant’s medical provider indicating the nature, severity, and duration of the
impairments, and the duties Complainant would be unable to perform. Id. at 533.

On October 21, 2016, Complainant emailed her first-level supervisor (S1) stating that as indicated
in an October 18, 2016 text, she would use formal channels to process her reasonable
accommodation request. ROI, at 493. Complainant noted that she had received the documentation
that she and her treatment provider needed to complete her request. Id.

On October 25, 2016, Complainant informed S1 that her primary care provider had issued a
prescription restricting Complainant’s return to work until she received clearance from her
cardiologist. ROI, at 388-389, 427-428. On October 27, 2016, Complainant informed LRAC that
she was not cleared to return to work and would submit the required paperwork. Id. at 192, 393,
432.

On November 14, 2016, S1 requested a status update from Complainant. ROI, at 391, 430, 504.
Complainant reported that she was still undergoing tests and assessment for chest pains. Id. at
503. Complainant stated that her physician was open to her teleworking until a diagnosis could be
made and Complainant asserted that she would submit her request to LRAC. Id. S1 responded by
informing Complainant that the reasonable accommodation request is subject to his approval and
once approved, it is forwarded to the Coordinator. Id. On November 14, 2016, Complainant
informed LRAC of her physician’s stance on Complainant teleworking. Id. at 191, 392, 431.

On November 28, 2016, S1 noted that Complainant was originally approved to telework on an “ad
hoc” basis and Complainant had been teleworking since early October. ROI, at 397-398, 436-437,
494-496. In his email, S1 stated that he gave Complainant verbal approval to telework on a more
frequent basis, but it was his understanding that Complainant would submit a “Request for
Accommodation” form either verbally or in writing within a reasonable time. Id. S1 provided
Complainant with VA Form 0857e “Request for Medical Documentation” and requested that
Complainant submit her request no later than December 2, 2016. Id. S1 stressed that it was his
expectation that Complainant would provide the requested information or report back to her duty
station on December 5, 2016. Id. S1 concluded by stating that help was needed in many areas that
could limit Complainant’s exposure to the daily challenges of contract administration. Id.
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Complainant responded by reiterating that her chest pain remained under evaluation and once her
diagnosis was complete, she would complete the formal request for accommodation. Id. at 495.

On December 6, 2016, Complainant’s treatment provider requested that Complainant be allowed
to work from home until further workup was completed, which Complainant provided to S1 on
December 7, 2016. ROI, at 170-171, 434, 627.

In an email dated December 14, 2016, Complainant reported that she would be unable to
participate in a scheduled interactive meeting. ROI, at 542. Complainant averred that her
physician would complete the request for accommodation. Id. As such, LRAC informed
Complainant that he would cancel the interactive meeting and requested Complainant’s
availability to reschedule the meeting. Id. at 541. LRAC noted that Complainant’s supervisor had
approved ad-hoc telework, but that Complainant need to complete the VA Form 0857e, which
LRAC attached. Id. LRAC’s email stated that the medical documentation needed to include the
nature, severity, and duration of the impairment, and the duties Complainant was unable to
perform. Id. Complainant responded to LRAC’s email by asserting that she had not submitted a
formal written request for accommodation, but that she should be authorized to telework pursuant
to Agency policy and her physician’s note. Id. at 540.

On December 21, 2016, S1 removed some of Complainant’s work assignments. ROI, at 101. On
December 22 and 27, 2016, S1 advised Complainant to immediately start reporting to her official
duty station or submit a leave request. ROI, at 400, 439, 502. S1 explained that he approved
Complainant’s telework on a temporary basis with the expectation that Complainant would submit
her request, however, 67 days had passed since Complainant first indicated that she was submitting
a formal request and Complainant was not authorized to telework indefinitely. Id.

On January 12, 2017, S1 issued Complainant an “Order to Return to Duty” notice. ROI, at 456,
510, 643, 645. The notice stated that Complainant was directed to return to her duty station on
January 17, 2017. Id. The notice went on to direct Complainant to submit medical documentation
to support her continued absences. Id. Complainant was advised that her failure to be in an
approved leave status, and failure to receive approval to continue telework, could result in absence
without leave (AWOL) status or disciplinary action. Id.

On January 13, 2017, LRAC stated that he would schedule another interactive meeting to discuss
Complainant’s requested accommodation and her functional limitations due to her medical
conditions. ROI, at 404. On January 19, 2017, Complainant informed LRAC that she still had
no diagnosis and that she had complied with S1’s request for a physician’s note to telework as an
interim option. Id. at 403. Complainant asserted that she would not engage with her chain of
command for any formal reasonable accommodation request. Id.

On January 25, 2017, LRAC notified Complainant that he was closing her request for reasonable
accommodation to telework. ROI, at 405. LRAC noted that he had scheduled two interactive
meetings, which Complainant did not attend. Id. Additionally, LRAC stated that he did not receive
a completed VA Form 0857e. Id. On January 27, 2017, LRAC informed Complainant’s chain of
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command that he had closed Complainant’s reasonable accommodation request, however, he
would reopen the case if Complainant submitted medical documentation outlining her limitations.
Id. at 517, 647.

On February 21, 2017, S1 issued Complainant a proposed Letter of Reprimand (LOR) for failure
to follow instructions. ROI, at 409, 451, 512, 577. Specifically, S1 stated that Complainant failed
to return to her duty station and continued to telework. Id. at 512. On March 23, 2017, S1
informed Complainant that the decision was made to reprimand Complainant as outlined in the
February 21, 2017 notice. Id. at 574. On March 23, 2017, S1 issued Complainant an “Order to
Return to Duty-Second Notice.” ROI, at 458-459, 575. The notice indicated that Complainant
had been directed and informed to return to duty on numerous occasions. Id.

On April 13, 2017, S1 emailed Complainant to reiterate the order to return to duty. ROI, at 413,
415-416, 452. The notice indicated that Complainant’s attendance would be recorded as AWOL
on April 10, April 11, and April 13, 2017 because Complainant did not return to the duty station
as directed. Id. S1 warned that if Complainant did not return to duty or have an approved leave
status, her attendance might continue to be marked as AWOL. Id. On April 17, 2017, Complainant
responded with a request for S1 to complete the Supervisor’s Statement on form SF3112, in
support of Complainant’s disability retirement application. Id.at 415, 453.

On April 28, 2017, S1 issued Complainant an “Order to Provide a Statement.” ROI, at 462, 514.
S1 stated that Complainant was notified on numerous occasions that she was not approved to
telework and that she was not operating within an official duty status until she returned to her
official duty station. Id. S1 directed Complainant to submit a statement describing the specific
dates and times that Complainant worked since January 17, 2017, along with documentary
evidence to support that she had worked on the outlined dates. Id. In a separate notice, dated April
28, 2017, S1 further informed Complainant that she had exhausted her Family Medical Leave Act
(FMLA) covered leave. Id. at 463, 515.

On March 30, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment and discriminated against her on the bases of disability (mental and
physical) and in reprisal for prior protected EEO activity arising under Title VII when:

1. On October 21 and 28, 2016, Complainant’s supervisor failed to act on her request
for an interim reasonable accommodation;

2. On December 21, 2016, Complainant’s supervisor removed some of her work
assignments;

3. On January 25, 2017, Complainant was ordered to return to duty, and told that her
reasonable accommodation request will be closed;

4. On January 25, 2017, Complainant’s reasonable accommodation request to
telework was closed;
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5. On February 21, 2017, Complainant was issued a proposed LOR, which was
finalized on March 23, 2017;

6. On April 28, 2017, Complainant’s virtual private network (VPN) was disconnected,
which prevented her from working at home;

7. On April 28, 2017, Complainant was charged with AWOL; and

8. On April 17, 2017, management failed to process Complainant’s application for
retirement.

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
(AJ). 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.

In the final agency decision (FAD), the Agency affirmed the previous dismissal of claims (2), and
(6)-(8) as independently actionable claims on the grounds of untimely EEO Counselor contact.
However, the Agency noted that during the investigation, Complainant provided dates for claims
(6)-(8), which were within the 45-day time limit for timely EEO Counselor contact, and it analyzed
these claims as independent actionable claims in the FAD.

The Agency found that assuming, arguendo, Complainant satisfied the elements of a reasonable
accommodation case, the Agency met its burden of showing that it acted reasonably in response
to Complainant’s reasonable accommodation request. Specifically, LRAC testified that
Complainant was approved for a temporary accommodation and told to submit additional medical
information to finalize the request. Two interactive meetings were scheduled, which Complainant
failed to attend, but Complainant remained on full-time telework from October 2016 through
January 2017 and did not respond to requests for additional documentation. The Agency noted
Complainant’s rebuttal that the Agency prematurely closed her reasonable accommodation request
but stated that Complainant did not explain why she had not attended the two interactive meetings.
The Agency concluded that Complainant failed to show that the Agency did not accommodate her,
as the record reflected several email communications from LRAC to Complainant informing her
that he had not received additional documentation.

Regarding Complainant’s disparate treatment claims, the Agency determined that it articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was issued the
LOR for failure to follow instructions because Complainant refused to return to her official duty
station as instructed. Management testified that Complainant’s VPN was disconnected, and she
was charged with AWOL because she remained absent from work without approved leave and
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failed to notify Human Resources about her work status. As for her retirement application, S1
testified that he completed his statement on May 9, 2017 and returned the form to Complainant.

The Agency determined that Complainant did not establish pretext with respect to claim (5)
because the record indicated that Complainant was given a reasonable amount of time to
substantiate that her continued absences were disability-related, and she failed to do so. The
Agency stated that Complainant did not establish pretext in claims (6) and (7) because
Complainant was not authorized to continue teleworking and remained out of work without
approved leave. Regarding claim (8), the Agency determined that Complainant did not establish
pretext because S1 testified that he completed his portion of the retirement application, without
delay, and returned the form to Complainant.

The Agency found that Complainant’s reprisal claims failed with respect to claims (2)-(5) because
the incidents occurred prior to Complainant’s EEO activity. As for claims (1), (6), and (8), the
Agency stated that management’s actions were based on policy and personnel rules related to
leave, discipline, and retirement process rather than retaliatory animus.

With respect to the harassment claims, the Agency determined that Complainant did not establish
that any of conduct Complainant complained of was based on membership in one or both of her
protected classes.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the evidence shows that she provided her medical reports to
the Agency. Complainant states that the Agency had knowledge of her medical history and
adequate information to confirm her diseases. Complainant maintains that the Agency violated
the Rehabilitation Act by denying her reasonable accommodation request to telework.
Complainant contends that LRAC lacked the authority to deny her reasonable accommodation
request and claims that LRAC intentionally circumvented higher-level authority review of her
request. Complainant argues that the Agency never informed her of the information that was
omitted from her reasonable accommodation request and that there was no undue hardship or threat
to the Agency in granting her telework request. Complainant asserts that the Agency used the
interactive process as pretext to deny her request and that the Agency exceeded its authority in
taking punitive actions against her.

Complainant contends that there are discrepancies between the FAD and her sworn statements.
Specifically, Complainant disputes that she received an interim reasonable accommodation and
asserts that while the Agency returned the Supervisor Statement, the Agency included erroneous
statements on the forms.

The Agency submitted a statement in response to Complainant’s appeal in which it urges the
Commission to affirm its final decision finding that Complainant was not discriminated against.

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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 (EEO MD-
110), 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”).

Reasonable Accommodation

The Commission notes that an Agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To
establish a denial of reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. For purposes of this decision, we assume that Complainant is an
individual with a disability.

An employer is permitted to seek documentation where it is necessary to determine that the
individual currently has a covered disability for which a reasonable accommodation is necessary.
Hoang v. U.S. Postal Serv., EEOC Appeal No. 0120130545 (Apr. 11, 2013) (employers are
entitled to request periodic medical updates since medical conditions can change); Ross v. Dept.
of the Treasury, EEOC Appeal No. 01982798 (Aug. 2, 2001).

Complainant failed to provide the requested medical documentation in support of her request for
telework as an accommodation. When an individual’s disability or need for reasonable
accommodation is not obvious, and she fails to provide reasonable documentation requested by
the employer, the employer will not be held liable for failure to provide the requested
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17,
2002) (Enforcement Guidance on Reasonable Accommodation). Here, the record shows that
Complainant failed to provide the Agency with the requested medical documentation in support
of her request for extended telework. The Agency’s request for additional documentation
constituted part of the interactive process, which Complainant was also obligated to participate in
following her request for a reasonable accommodation. Although Complainant communicated
with the Agency, she failed to provide the information requested. Therefore, the Commission
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finds that Complainant has not established that the Agency failed to provide her with a reasonable
accommodation.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 he
or 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 802 n. 13. 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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination and
reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, LRAC asserted that management provided Complainant with an interim
accommodation of telework from October 4, 2016 through January 2017. ROI, at 115. However,
Complainant’s reasonable accommodation request was closed for failure to engage in the
interactive meetings and failure to provide the requested reasonable accommodation medical form.
Id. at 115-118.

Regarding the remaining incidents, S1 acknowledged that contracts were removed from
Complainant’s workload because she was not performing. ROI, at 101. As for the LOR, S1
stressed that it was issued because Complainant was ordered to return to duty on January 17, 2017,
since she was not approved to continue teleworking on a full-time basis. Id. at 103. A Human
Resources representative concurred that Complainant was issued the LOR for failing to follow
instructions. Id. at 123. S1 added that Complainant continued to telework and did not return to
her official duty station as directed. Id. An employer may discipline an employee with a disability
for engaging in such misconduct if it would impose the same discipline on an employee without a
disability. See Enforcement Guidance on Reasonable Accommodation, at Question 36.
Accordingly, we conclude that the Agency was not required to excuse the misconduct of failure to
return to duty.

Regarding the disconnection of Complainant’s VPN and Complainant’s AWOL status, S1 stated
these actions occurred because Complainant failed to report to duty in January 2017 as directed.
ROI, at 104-105. S1 explained that Complainant had stopped communicating via normal
correspondence and refused to report to her duty station. Id. As for Complainant’s retirement
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application, S1 asserted that he received the form on or about May 1, 2017 and returned the form
to Complainant on May 9, 2017. Id. at 105.

The Commission finds no persuasive evidence that Complainant’s protected classes were a factor
in the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. To the contrary, Complainant admits that she did not
attend the reasonable accommodation meetings or return the requested medical documentation,
which was the catalyst for the removal of her work assignments, orders to return to duty, closure
of the reasonable accommodation request, the issuance of the LOR, the VPN disconnection, and
the charge of AWOL. Complainant’s Appeal Brief, at 7. Complainant further acknowledged that
S1 returned her retirement forms. Id. at 1. As a result, the Commission finds that Complainant
has not established that she was subjected to discrimination or reprisal as alleged.

Hostile Work Environment

Finally, to the extent that Complainant claims that the alleged incidents constitute a claim of
harassment, that Commission notes that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably 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 Agency management were
motivated by discriminatory or retaliatory animus on any of the alleged bases. See Oakley v. U.S.
Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s decision finding that Complainant was
not discriminated against, nor harassed, as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
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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.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
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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

September 20, 2019
Date