0120120050
01-03-2013
Kimberly Holmes-Hunter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kimberly Holmes-Hunter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120050
Agency No. 2004-0558-2010104229
DECISION
On September 20, 2011, Complainant filed an appeal from the Agency's August 24, 2011, final decision concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency discriminated against Complainant on the basis of disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Manager of the Acute Psychiatric Unit at the Agency's VA Medical Center in Durham, North Carolina. On September 2, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (physical and mental) and reprisal for prior protected EEO activity when:
1. On November 17, 2009, she received a "fully successful" rating on her annual performance evaluation;
2. On June 5, 2010, a former patient who previously assaulted her was readmitted to her unit;
3. On June 17, 2010 and July 8, 2010, she was notified that she was being reassigned to light duty as a secretary in the Supply Purchasing Department, which conflicted with her medical restrictions;
4. On July 21, 2010, she received a letter ordering her to report for duty or be carried in an absence without leave (AWOL) status effective July 17, 2010, and on August 8 and 13, 2010, she was notified that she was considered AWOL.
Regarding her physical disability, Complainant averred that it developed in March 2009 when a patient assaulted her. In addition, Complainant averred that she has medical restrictions related to her physical disability. Regarding her mental disability, Complainant averred that it developed in June 2010 when she saw the patient who had previously assaulted her. In addition, Complainant averred that she has not been released to work yet due to her mental disability and has not returned to work since June 7, 2010. Further, Complainant averred that she submitted SF-71s (Requests for Leave or Approved Absence) to S1, but S1 denied them and considered her AWOL instead.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. 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 discriminated against her as alleged.
Among other things, the decision found that Complainant failed to show that she is an individual with a disability because she did not provide medical evidence to corroborate her testimony about her disabilities. Moreover, the decision found that Complainant did not show that the Agency failed to reasonably accommodate her.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, � VI.A. (Nov. 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").
Adequacy of the Record
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Upon review, we find the record to be insufficiently developed for us to determine if the Agency discriminated against Complainant on the basis of disability. Specifically, we find that the record contains no medical documentation pertaining to claims 3 and 4, despite evidence that Complainant previously provided such documentation to her First Level Supervisor (S1).
For example, the record contains the following references to medical documentation provided by Complainant and/or received by S1:
* In an email to Complainant dated June 16, 2010, S1 wrote, "At this point I haven't received any medical documentation from you directly however OWCP has provided me with a doctor's note which placed you off until 6/23/10." ROI, Ex. C2, at 2.
* In an email to S1 dated June 17, 2010, Complainant wrote, "[Y]ou had a copy of a providers note telling you how long I was to be out of work." Id. at 1.
* In an attachment to a letter to Complainant dated June 17, 2010, S1 wrote, "Medical documentation from your physician indicates that you have been released for light duty work." ROI, Ex. A3, at 8.
* In an email to Complainant dated June 18, 2010, S1 wrote, "You do not have leave requested for 6/17, 6/18, 6/21, or 6/23 and these dates are a reflection of your last MD note." ROI, Ex. C2, at 1.
* In an email to S1 dated June 23, 2010, Complainant wrote, "My doctor's office faxed a letter to you already today ..." Id. at 5.
* In a letter to S1 dated June 30, 2010, Complainant's attorney wrote, "I have enclosed a copy of the most recent correspondence from Triangle Orthopaedic Associates, P.A. containing the medical restrictions for [Complainant]." ROI, Ex. C8, at 2.
* In a letter to Complainant dated July 8, 2010, S1 wrote, "Please find attachments with a recommended light duty work assignment written in accordance with your most current medical documentation in which you have provided to your supervisor." ROI, Ex. A3, at 10.
* In a letter to Complainant dated July 21, 2010, S1 wrote, "The medical documentation faxed to me on July 16, 2010 is insufficient because it does not meet the criteria as outlined below." ROI, Ex. C3, at 1.
The medical documentation referenced above, however, is missing from the record. While it is unclear how much documentation Complainant provided to S1 or what exactly the documentation consisted of, it appears that the documentation was related to Complainant's physical/mental disabilities and functional limitations.
Given that Complainant is alleging that the Agency discriminated against her on the basis of disability (claims 1- 4), that the Agency gave her a light duty assignment that conflicted with her medical restrictions (claim 3), and that the Agency charged her with AWOL despite her doctor not having released her to return to work (claim 4), we find that such medical documentation is essential for us to make a determination on Complainant's complaint.
Moreover, regarding claim 4, it appears that Complainant requested leave by submitting SF-71s to S1. For example, in an email to Complainant dated June 24, 2010, S1 wrote, "I received your SF-71 via fax today." ROI, Ex. C2, at 8. The record, however, does not contain any of Complainant's SF-71s.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this matter back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.1
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's complaint. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. A sworn affidavit from S1 explaining in detail what medical documentation she received from Complainant and when she received such documentation;
b. Any medical documentation provided by Complainant and/or received by S1 pertaining to Complainant's physical disability, mental disability, and functional limitations;
c. Any SF-71s (Requests for Leave or Approved Absence) submitted by Complainant to S1 pertaining to claim 4; and
d. A rebuttal statement from Complainant after she has had an opportunity to review the requested documents and sworn affidavit.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
___1/3/13_______________
Date
1 In order to avoid fragmentation, we will not address the merits of Complainant's remaining claims at this time.
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0120120050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120050