[Redacted], Audrea L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Sep 30, 2022

Appeal No. 2022001092 (E.E.O.C. Sep. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Audrea L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2022001092 Agency No. 200J-VI15-2021102631 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 4, 2021, dismissing her equal employment opportunity (EEO) complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-12, in Employee and Labor Relations at the Veterans Integrated Services Network (VISN) 15 facility in Kansas City, Missouri. On April 30, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability (filing for disability retirement) and reprisal for prior protected EEO activity (reporting discrimination) when, “the Agency failed to provide [Complainant] with a CORRECT SF-502 depicting [her] removal from the VA on 8/17/20, as well as has repeatedly lied about [its] work on completing it.” 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. 2 A Standard Form 50 (SF 50) is a Notification of Personnel Action. 2022001092 2 Notably, on July 28, 2020, Complainant and the Agency had entered into a settlement agreement because the parties agreed “there is substantial evidence that [Complainant’s] medical conditions prevent her from performing one or more of the essential functions of her position.” In pertinent part, the July 28 agreement provides: 1. [Complainant] agrees to waive her advanced notice period for a Medical Separation. 2. [Complainant] agrees to submit a completed Disability Retirement application to the Office of Personnel Management (OPM). 3. [Complainant] agrees to accept OPM’s decision if the Disability Retirement application is approved. 4. [Complainant] agrees there are no other full-time positions at the same or similar grade available to her at the [Kansas City] VA for which she is qualified. 5. The agency agrees to issue a decision to separate the employee for Medical Inability no later than August 25th, 2020. On June 4, 2021, the Agency issued a final decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency stated that the issue Complainant raised should be interpreted as a potential breach of settlement claim, rather than the basis for a new complaint. The Agency stated that it would forward the matter to its Office of Policy and Compliance for review to determine if the settlement agreement had been breached. The instant appeal from Complainant followed. On appeal, Complainant stated, “This is NOT related to the settlement agreement.” Complainant stated that her immediate supervisor (S1) and a Human Resources Officer would not provide her with a proper SF-50 to apply for disability retirement, and S1 blamed Complainant for leaving him at the Agency with incompetent staff. Complainant stated, on August 24, 2020, she received a removal letter dated August 11, 2020 and effective August 17, 2020.3 Complainant added that she received an SF-50 on November 23, 2020 and it was inaccurate, improperly noting lump sum severance pay. Complainant stated that she received a revised SF-50 on May 7, 2021, and it was still incorrect. Complainant alleged that the Agency knowingly delayed her applying for disability retirement. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age disabling condition, or reprisal. 29 C.F.R. §§ 1614.103, 106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as 3 The record contains a Separation for Medical Inability notice, dated August 11, 2020 and effective August 17, 2020. The Notice cites the July 28 settlement agreement and Complainant’s inability to perform the essential functions of her position and the undue hardship on the Agency. 2022001092 3 one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Here, Complainant claims that the Agency failed to provide her a correct SF-50 in a timely manner and delayed her applying for disability retirement. Complainant stated that she received an SF-50 on November 23, 2020 and May 7, 2021, and both versions were incorrect. The record also contains a July 28, 2020 settlement in which Complainant agreed to waive an advance notice period and apply for and then accept disability retirement with OPM, and the Agency agreed to issue a removal notice by August 25, 2020. The record reveals that the Agency issued Complainant a Separation for Medical Inability Notice, dated August 11, 2020 and effective August 17, 2020, which Complainant acknowledged receiving on August 24, 2020. Complainant specifically states that this complaint is not an allegation of settlement breach. Here, there is nothing in the record supporting a claim that Complainant was adversely affected by receiving her SF-50 in an untimely manner. The record does not support that Complainant’s ability to file for disability retirement with OPM was contingent upon her receipt of the SF-50. See Rafaela B. v. Dep’t of the Navy, EEOC Appeal No. 2019003843 (September 19, 2019). The Separation for Medical Inability notice Complainant acknowledged receiving on August 24 and the July 28 settlement agreement contain information about Complainant’s medical inability to perform the essential functions of her position and that there were no other positions available for which she was qualified. Notably, there are other Agency forms required by OPM when applying for disability retirement, but those are not at issue here. Thus, there is no indication that Complainant suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Moreover, Complainant’s issues concerning the processing of her disability retirement claim are more properly presented to OPM, which has the ability to correct any processing errors. In addition, to the extent there may be errors in the SF- 50s issued by the Agency in effectuating the settlement agreement with Complainant, the Agency is already processing those allegations properly as breach claims. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 2022001092 4 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. 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). 2022001092 5 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 September 30, 2022 Date