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

Equal Employment Opportunity Commission

Feb 9, 2023

Appeal No. 2021004398 (E.E.O.C. Feb. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna I.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004398 Agency No. 200P-0644-2020103148 DECISION On July 31, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 2, 2021 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN), VN 1, within the VA Health Care System in Phoenix, Arizona. On May 9, 2020, and subsequently amended, Complainant filed a formal EEO complaint alleging that Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), age (58), disability (residual effects of knee replacement and cervical spinal fusion, dislocated right thumb, hearing loss, diminished sensations in hands and feet due to frostbite, chronic low back pain and post-traumatic stress disorder), and in reprisal for prior protected EEO activity when: 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. 2021004398 2 1. On March 2, 2020, a Patient-Aligned Care Team (PACT) RN helped herself to Complainant’s chips and salsa and bumped into her; 2. On March 26, 2020, the Interim Nurse Manager informed Complainant that she would be detailed to the main hospital effective March 29, 2020; 3. On March 29, 2020, the Interim Nurse Manager ordered Complainant to remove a splint from her injured thumb; 4. On March 29, 2020, Complainant was informed that her shift work hours would be changed; 5. From March 29, 2020 through April 21, 2020, Complainant’s disability medical information was shared with staff members; 6. On March 31, 2020, Complainant was charged absence without leave (AWOL); 7. From April 1, 2020 through April 3, 2020, Complainant was charged AWOL; 8. On April 4, 2020, Complainant received an email from an Employee and Labor Relations Specialist in the Human Resources Office informing her that she had not properly completed a request for leave without pay (LWOP); 9. From April 7, 2020 through April 9, 2020, Complainant was charged AWOL; 10. On April 8, 2020, Complainant’s request for LWOP was denied; 11. On April 15, 2020, the Interim Nurse Manager sent Complainant two return-to-duty letters; 12. From April 15, 2020 through April 16, 2020, Complainant was charged AWOL; 13. On April 20, 2020, Complainant was not given a reasonable accommodation while on detail to the main hospital; 14. From April 21, 2020 through April 24, 2020, Complainant was charged AWOL; 15. From April 27, 2020 through April 29, 2020, Complainant was charged AWOL; 16. On April 29, 2020, Complainant was told to send written notification to management when she left work for the day and to do so for the next 90 days; 17. On May 28, 2020, Complainant became aware that she was not selected for a registered nurse position for which she had earlier applied; 2021004398 3 18. On August 6, 2020, Complainant was issued a reprimand; 19. On unspecified dates, Complainant was assigned to perform the duties and functions of a licensed vocational nurse; 20. On unspecified dates, the Interim Nurse Manager called Complainant while she was off duty; and 21. On unspecified dates, the Interim Nurse Manager sent Complainant an email with three letters to her private email address while Complainant was off duty. Complainant asserted that she experiences complications from several conditions, including total knee replacements, fusion of the cervical spinal column, and a dislocation of the thumb on her right hand. She also averred that she experienced decreasing sensations in her hands and feet due to service-connected frostbite. Other medical conditions she identified included a 30 percent hearing loss in her left ear, chronic lower back pain, and post-traumatic stress disorder. She reiterated that all of her conditions were connected to her military service. IR 115-16. When asked about substantial limitations in major life activities, Complainant replied that she could not lift more than five pounds or stand or sit for more than 15 minutes at a time. IR 116-17. She identified her essential job functions as charting patient data, monitoring patients’ vital signs, administering injections, and scheduling appointments. IR 117. Further, she averred that she had requested reasonable accommodations in February 2020 and had accommodations in place in her regular position. IR 117. Allegation (1): Complainant averred that the PACT RN, went into her personal bag and ate her chips and salsa. Complainant also claimed that the PACT RN laughed at her when confronted about the incident and that the PACT RN rammed into her shoulder so forcefully that her neck hurt for the next two weeks. IR 118, 162. The PACT RN stated that she did not recall eating Complainant’s food but did recall Complainant brushing arms with her inside the pod to which they were assigned. The PACT RN also averred that she did not intentionally bump into Complainant and did not think anything about the incident when it occurred. IR 348. The Interim Nurse Manager affirmed that Complainant and the PACT RN had refused to file a police report and that although they had initially agreed to participate in a mediation, Complainant had changed her mind. IR 242-43. Allegations (2), (4), and (19): A memorandum from the Interim Nurse Manager to Complainant dated March 26, 2020, indicated that she would be placed on a 90-day temporary detail as a Registered Nurse for inpatient care services. The memorandum further stated that the detail was part of the Agency’s response to the COVID-19 national emergency. It also notified Complainant that during each two-week pay period, she would be assigned to six 12-hour shifts and one eight- hour shift. Another memorandum issued that same day from the Interim Nurse Manager to the Union President stated that two other nurses, one Black, one White, were being assigned with Complainant to patient care services. IR 439. 2021004398 4 In addition, Complainant averred that she was assigned vocational nursing duties that were outside the scope of her position as a registered nurse. IR 121, 123-25, 171-73, 177-78, 260-62, 310, 438- 39, 441. The Acting Deputy Nurse Executive averred that more than 100 staff members were detailed to the inpatient nursing service during the initial surge of COVID-19, including Complainant and the PACT RN. The Interim Nurse Manager, the Acting Deputy Nurse Executive, and the Assistant Nurse Manager all stated that due to the lack of volunteers, selections for the detail were made on the basis of reverse seniority, meaning those who most recently entered on duty at the facility would be chosen first. IR 140-44, 255-58, 286-87, 332, 348. When she protested the detail due to concerns about whether her medical restrictions were violated, the Interim Director of the facility and the Chief Nurse informed her that any medical restrictions would be honored. IR 310- 11, 441. The Lead Employee and Labor Relations Specialist assigned to the facility averred that she provided technical guidance to management officials regarding overall change-of-shift notifications. IR 388. As to being assigned vocational nursing duties, the Interim Nurse Manager, the Assistant Nurse Manager and the Nursing Team Lead asserted that because her position was a floating position, her assignments to vocational nursing were within the scope of her position and were dictated by patient care needs at the time. IR 249-51, 286, 340-41. Allegation (3): Complainant alleged that on March 29, 2020, the Interim Nurse Manager ordered her to remove the splint that she had been wearing to protect her right thumb from further injury and told her to never wear the splint again notwithstanding that she had a doctor’s order recommending that she wear it. IR 119-20. The Interim Nurse Manager denied Complainant’s assertion that she had ordered Complainant to remove her splint. She pointed out that the date in question was a Sunday and that neither of them worked that day. She explained that when she saw Complainant wearing the splint, she merely asked what had happened and if Complainant was okay. IR 244-45. Complainant admitted that she never took the splint off. IR 166. Allegation (5): Complainant claimed that she became aware that the Interim Nurse Manager and the Acting Associate Director for Patient Care Services had been inquiring about her hand injuries. She further averred that the Acting Associate Director had told her that management had to know what was going on with her so that they could vouch for her injuries in connection with information presented to the Office of Workers’ Compensation Programs of the Department of Labor. IR 126, 178-81. The Interim Nurse Manager responded not only that she did not share any of Complainant’s confidential medical information with anyone, but also that she did not even have access to that information. She averred that she reported her observation that Complainant was wearing a splint to the Human Resources Office, and that she wanted to know whether there was anything she needed to do in order to keep Complainant safe from injury. IR 262-64. Allegations (6), (7), (9), (12), (14), and (15): Complainant claimed that she had requested to use LWOP under the Family and Medical Leave Act, and that she had been told to do so by the Lead Employee and Labor Relations Specialist and the Chief Nurse. IR 132, 181-83. 2021004398 5 The Interim Nurse Manager averred that the Assistant Nurse Manager was responsible for recording time and attendance and that Complaint had been marked as AWOL because she did not appear at work despite being on the schedule for the days in question. She also stated that Complainant never requested that accrued annual or sick leave be applied to cover her absences on those days. IR 264-65. The Assistant Nurse Manager asserted that in accordance with the instructions he was given from the Interim Nurse Manager, he sent Complainant an email on each day that she was absent informing her of her AWOL status. He also stated that Complainant never requested that the AWOL charges be removed. IR 264-65, 287-88, 291-300, 447-56. Allegations (8) and (10): Complainant alleged that she received an email from an Employee and Labor Relations Assistant who handled workers’ compensation matters stating that she had not completed a request for LWOP. Complainant further averred that she sent her request to several management officials, including a Human Resources Officer, the Interim Nurse Manager, the Chief Nurse, and the Acting Deputy Nurse Executive. IR 166-69, 371. The Employee and Labor Relations Assistant affirmed that Complainant’s request was incomplete due to the fact that the signatures of the Interim Nurse Manager and the Chief Nurse were missing. Complainant’s request was for extended LWOP between March 29, 2020 and July 15, 2020. The Interim Nurse Manager and the Chief Nurse refused to concur due to the operational need for registered nurses to work in patient care services because of the COVID-19 pandemic. IR 352-53, 361-68, 373-82. The Medical Center Director ultimately denied the request based upon the recommendations of the Interim Nurse Manager and the Chief Nurse that Complainant be allowed to use annual and sick leave instead of LWOP. IR 146, 265-66. 344, 468-69. Allegation (11): The Interim Nurse Manager stated that she did send Complainant the return-to- duty letters. She stated that Complainant had not been present at work and had not been calling in requesting to use vacation time or sick time. She reiterated that at the time, the facility was dealing with a national pandemic emergency and that she was needed. She notified Complainant of her options by which to justify her absence, including her mother’s health condition, the need for COVID-related quarantining, and the need for reasonable accommodation. IR 246-47, 329, 385, 436-37. Allegation (13): Complainant claimed that she had to submit her reasonable accommodation request form three times and that the Lead Employee and Labor Relations Specialist, who was also the Reasonable Accommodation Coordinator, had refused to accept the form until Complainant’s doctor wrote a letter on her behalf. She acknowledged, however, that she had submitted two requests for reasonable accommodation, and that both of those requests had been granted. Complainant was back at work by April 29, 2020, with her reasonable accommodations. IR 133- 35, 185-86, 247, 267-69, 472-73, 475-76, 479. Allegation (16): Complainant claimed that she was told to send notification that she was leaving prior to her departures at the end of her shift. IR 121, 170-71. The Interim Nurse Manager stated that this policy applied to everyone, not just Complainant because the facility had multiple employees detailed to different areas. 2021004398 6 She further stated that because the staff were engaged in clinical activities, they did not always have access to email and were told to simply send a text message at the end of their workdays. IR 247-48. Allegation (17): Complainant alleged that although she had submitted an application for the nursing position at issue and had met the qualifications, she was never contacted for an interview and was later notified that another candidate had been selected. IR 137, 186-89, 597. The Interim Nurse Manager was the selecting official and the Assistant Nurse Manager was on the interview panel. Although Complainant’s name appeared on the certificate of eligibles, Complainant did not achieve the minimum score of 9 on her application review and hence was not called in for an interview. In addition, Complainant’s most recent proficiency report was “Unsatisfactory” while those of the selectees were either “Outstanding” or “”Highly Satisfactory.” IR 288-90, 310. 314- 16, 487-88, 516-19, 521-23, 532-34, 543-47, 581-86, 593, 596. Allegation (18): Complainant admitted that she had received a reprimand from the Acting Deputy Nurse Executive for being absent without leave as described above. IR 183. 197-98. According to the Interim Nurse Manager and the Acting Deputy Nurse Executive, the reasons for the reprimand included failure to follow leave policy despite multiple counselings on the issue. Complainant was not given a proposed reprimand prior to receiving the actual reprimand because a summary review board had been convened to investigate the matter. At the conclusion of its investigation, the board recommended that Complainant be terminated, but the Nurse Manager and the Acting Deputy Nurse Executive agreed on a reprimand instead. The Chief Nurse concurred. IR 279-80, 335-36, 602-05. Allegations (20) and (21): Complainant claimed that the Interim Nurse Manager would call her and send her messages at her private email address. IR 122, 173-77. The Interim Nurse Manager averred that she needed to get in touch with Complainant to follow up on her reasonable accommodation requests and send Complainant return-to-duty letters. IR 253-54. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On December 4, 2020, Complainant requested a final agency decision. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the 2021004398 7 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”). Disparate Treatment - Allegations (2), (4), (6)-(10), (12), (14)-(15) & (17)-(19) 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, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to the detail to patient care services, the accompanying changes to her shift and work hours, and assignment to perform vocational nursing duties at issue in incidents (2), (4), and (19), the Interim Nurse Manager, the Assistant Nurse Manager, the Acting Deputy Nurse Executive, and other employees and managers averred that due to the pandemic, the facility had to deploy over 100 staff members to patient care services. They stated that due to lack of a sufficient number of volunteers, detailees were selected based on “reverse seniority,” meaning that those who entered on duty at the facility most recently were chosen ahead of more senior employees. They affirmed that shifts, hours, and work assignments were dictated by patient needs. IR 140-44, 249-51, 255- 58, 260-62, 286-87, 310-11, 340-41, 348, 388, 438-39, 441. Regarding the AWOL charges at issue in allegations (6), (7), (9), (12), (14), and (15), the Interim Nurse Manager and the Assistant Nurse Manager reiterated that Complainant was marked AWOL because she failed to appear at work when scheduled to report. They also averred that Complainant did not provide valid reasons for not showing up. IR 264-65, 287-88, 291-300. 447-51, 455-56. Concerning the LWOP request and its subsequent denial at issue in allegations (8), and (10), the Employee and Labor Relations Assistant asserted that the LWOP request when initially submitted did not have the required signatures of the Interim Nurse Manager and the Chief Nurse. The Human Resources Officer stated that when the request finally was submitted, the Nurse Manager and the Chief Nurse did not concur with Complainant’s request to be on LWOP status between March and July 2020 because of the acute need for sufficient number of patient care staff. They did, however, agree to allow Complainant to use accumulated annual and sick leave to cover any necessary absences. IR 146, 265-66, 344, 352-53, 361-68, 373-82, 468-69. With respect to the nonselection at issue in allegation (17), the Interim Nurse Manager, who was the selecting official, stated that while Complainant was listed on the certificate of eligibles, she was not selected for an interview because the cumulative score on her application package was not high enough, based upon the assessment of the review panel. 2021004398 8 Complainant had a score of five while the scores of the three eventual selectees were 13, 16, and 13 prior to their advancement to the interview stage. In addition, Complainant’s proficiency report was “Unsatisfactory” while those of the selectees were “Outstanding” or “Highly Satisfactory.” IR 269-72, 288-90, 301, 314-16, 487-88, 516-19, 521-23, 532-58, 543-47, 569-74, 581-86, 593, 596. With regard to the reprimand at issue in allegation (18), the Acting Deputy Nurse Executive averred that she had issued the reprimand upon the recommendation of the Interim Nurse Manager. According to the Interim Nurse Manager and the Acting Deputy Nurse Executive, reasons for the reprimand included: failure to properly request leave in accordance with established procedures; multiple incidents of absence without leave; and unreasonable delays in carrying out instructions during the COVID-19 emergency. The matter was presented to a summary review board in June 2020, with the Acting Deputy Nurse Executive ultimately rejecting the board’s recommendation of termination and issuing a reprimand in lieu. IR 279-80, 335-36, 602-05. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Larraine D. v. Dep’t of Defense, EEOC Appeal No. 2022002980 (Oct. 27, 2022). The same indicators of discriminatory intent used to unearth unlawful bias in hostile work environment cases will also support findings of pretext in disparate treatment cases. See Tammy S. v. Dep’t of the Army, EEOC Appeal No. 2021000578 (May 5, 2022); citing Mellissa F., supra. Several other nurses of color raised generalized allegations of discrimination within the facility. A PACT Nurse whose national origin was Kenyan averred that she had received lots of AWOL charges without warning or explanation and that the Interim Nurse Manager was known to harass Black nurses more and very harshly, but also that she was “not exactly sure of the dates.” She also averred that Complainant was picked on and that there was unfairness regarding seniority for details to patient care services. IR 219-22. A Registered Nurse from the clinic in Gilbert, Arizona and the Same Day Access Nurse claimed that White nurses were disciplined less severely than nurses of color, or perhaps not at all, after conflicts with colleagues. IR 226-27, 232-33. A White PACT Registered Nurse stated in an affidavit dated November 6, 2020, that she overheard the Interim Nurse Manager talking on the telephone stating that she had “a list [of employees] she wanted to get rid of,” and that on one day in March 2020, the Interim Nurse Manager had told her that she was excited that she had found a way to fire Complainant but warned her not to tell the Assistant Nurse Manager. IR 208. However, when the investigator asked this witness in an email dated November 16, 2020, whether she heard the Interim Nurse Manager state Complainant’s name as the one she was going to get rid of, she replied, “I did not hear [the Interim Nurse Manager] say [Complainant’s] name. IR 209. 2021004398 9 On appeal, Complainant argues that the use of reverse seniority as a basis for making detail assignments was a pretext for race discrimination. Complainant submits a table to support her contention that nurses of color with higher seniority than White nurses were detailed and not allowed to telework. The table also shows that two White Nurses with lower seniority than Complainant were also detailed. There is no indication, however, how the detail and telework information was obtained. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. After reviewing the record in its entirety in light of the particular facts and circumstances of this case, we find that the evidence is not sufficient to support her claim of discrimination. While various witnesses describe circumstances that suggest the possibility of bias, their testimony was not sufficient to contradict or undercut the legitimate, non-discriminatory explanations provided by Agency officials for the various incidents described in the complaint.2 Complainant has failed to establish that the Agency's reasons were pretext for discriminatory or retaliatory animus. 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. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Hostile Work Environment To prevail on a claim of discriminatory harassment, Complainant would have to show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. 2 In view of the number of witnesses who expressed an opinion that there was bias at the facility, we encourage the Agency to undertake a review of their policies regarding detail assignments as well as the manner in which detail assignments were issued under that policy. 2021004398 10 Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the record evidence supports that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming that the alleged conduct occurred, such incidents reflect common workplace disagreements between supervisors and subordinates that relate to managerial decisions and processes and general workplace disputes and tribulations. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as to all claims alleged. Denial of Reasonable Accommodation - Allegation (13) 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; Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to establish that he was denied a 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. Camie B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021002506 (July 21, 2022) citing Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Here we find that Complainant is a qualified individual with a disability, and that Complainant herself admitted that she had been accommodated. She has not presented any evidence tending to show that her accommodations were ignored or otherwise taken away while she was being detailed to patient care services. Furthermore, she has presented no evidence that the provided accommodations were ineffective. Accordingly, the Commission finds that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act. IR 115-17, 133-35, 185-86, 247, 267-69, 472-73, 475-76, 479. Disclosure of Medical Information - Allegation (5) The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c). 2021004398 11 Consequently, where unauthorized disclosure of medical information is at issue, it is not necessary to prove the existence of a discriminatory motivation in order to establish a violation of the Rehabilitation Act; mere disclosure of such information without justification is enough. Anna T. v. Dep’t of the Treasury, EEOC Appeal No. 2020003070 (May 24, 2021) req. for recon. den. EEOC Request No. 2021004091 (Nov. 29, 2021) citing Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for recon. den. EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). There is no evidence demonstrating that the Interim Nurse Manager had access to any of Complainant’s confidential medical information or disclosed any confidential medical information to anyone. We therefore find no violation of the Rehabilitation Act in connection with allegation (5). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021004398 12 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 9, 2023 Date