[Redacted], Breanne H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2021000044 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000044 Hearing Nos. 530-2019-00456X; 530-2019-00519X Agency Nos. 200H-0646-2018103883 and 200H-0646-2019202438 DECISION On October 1, 2020, 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 October 1, 2020, final action concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 action. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency’s VA Pittsburgh-Heinz Medical Center in Pittsburgh, Pennsylvania. On June 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) and denied her a reasonable accommodation 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. 2021000044 2 1. On March 27, 2018, her light duty status was violated when her request for authorized absence to acquire a mandated CA-17 form to be completed by her physician, was not approved, and 2. On April 3, 2018, her light duty status was violated when despite her medical restrictions, she was compelled to perform CPR recertification due to her concern of discipline related to a fact-finding investigation into her refusal.2 On March 1, 2019, Complainant filed a second EEO complaint (Agency Number: 200H- 064602019101438) alleging that the Agency discriminated against her on the basis of disability (physical) when: 1. From October 1, 2018 to at least March 26, 2019, Complainant was charged Absent Without Leave (AWOL); 2. On January 4, 2018, Complainant’s November 20, 2018 accommodation request for Leave Without Pay (LWOP), made by the Complainant’s representative on Complainant’s behalf, was denied; 3. On April 15, 2019, Complainant was removed from Federal service.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on both complaints and the AJ consolidated the complaints. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s August 4, 2020, motion for a decision without a hearing and issued a decision without a hearing on October 1, 2020. 2 The Agency initially dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim stating that a violation of her light duty restrictions constituted a collateral attack on the Office of Workers’ Compensation’s (OWCP) determinations of what constituted her work-related restrictions. The Commission reversed in part the Agency’s dismissal of the complaint, finding that the alleged violation of her light duty restrictions constituted an allegation that the Agency had failed to provide a reasonable accommodation, and remanded the complaint to the Agency. See Breanne H. v. Dep’t of Vet. Aff., EEOC Appeal No. 2018000033 (Mar. 8, 2019). 3 On June 16, 2020, an Equal Employment Opportunity Commission Administrative Judge (AJ) remanded claim 3 of this complaint regarding the removal action, to the Agency for a final Agency decision, noting that the Agency had not properly informed Complainant of her right to appeal the removal with the Merit Systems Protection Board (MSPB). The Agency issued a final decision regarding Complainant’s removal on September 11, 2020, providing appeal rights to MSPB, not EEOC. We will therefore not address Complainant’s removal claim, as the MSPB has jurisdiction over the removal action. See Cooley v. Dep’t of Homeland Sec., EEOC Appeal No. 0120102212 (May 24, 2012). 2021000044 3 The AJ found that Complainant did not establish a violation of the Rehabilitation Act because the evidence in the record showed that Complainant’s restrictions no longer permitted her to perform the essential functions of her position and when the Agency offered her a reassignment, Complainant rejected the offer. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). We find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Complainant’s argument on appeal that the AJ erred by accepting the Agency’s version of the facts is unavailing as Complainant did not identify any material facts which the AJ did not consider nor is there any evidence in the record to support her challenges to the AJ’s recounting of the material facts. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We therefore find that the AJ’s issuance of a decision without a hearing was proper. We find that the AJ’s decision correctly identified the legal standards for Complainant to establish that the Agency violated the Rehabilitation Act by denying her a reasonable accommodation under the Rehabilitation Act. The AJ correctly determined that the evidence in the record does not support Complainant’s assertion that she was denied a reasonable accommodation. The evidence in the record indicates that when Complainant first returned to work after suffering an injury to her right shoulder, Complainant provided a letter from her doctor stating Complainant’s restrictions including lifting above her shoulders and carrying more than 10 pounds, but the restrictions did not specifically mention CPR. See Report of Investigation (ROI) 1 at 153; 158-159. Complainant’s supervisor, the Nurse Manager (NM), stated that performing CPR was an essential function of Complainant’s position. See ROI 1 at 97-98. The NM further stated that Complainant never requested an authorized absence but that even if Complainant had, she does not have the authority to grant or deny authorized absences. See ROI 1 at 93. Complainant’s initial request to telework as a reasonable accommodation was denied because the essential functions of her position required being on site to provide medical care to patients. See ROI 1 at 119. 2021000044 4 As an alternative, the Agency offered reassignment to a different position which could accommodate Complainant’s restrictions; however, Complainant refused the reassignment. See ROI 1 at 120-121; 147. Thereafter, Complainant requested LWOP as a form of reasonable accommodation until after her surgery; however, she did not provide any time frame for the length of her LWOP. See ROI 1 at 121-122; ROI 2 at 72. We find that the AJ correctly concluded that Complainant did not establish a violation of the Rehabilitation Act. To the extent Complainant challenges the Agency’s statement that performing CPR or providing in person patient care is not an essential function of her position, that is contradicted by the functional statement for her position which specifically includes the ability to initiate and/or assist with providing CPR and other appropriate patient care.4 See ROI 1 at 113-114. The Rehabilitation Act does not require agencies to reallocate essential functions of a position or to create a make work assignment for a complainant solely to accommodate complainant’s restrictions. See Testa v. U.S. Postal Serv., EEOC Appeal No. 05A30280 (Jan. 28, 2003). Moreover, an agency is not required to provide indefinite leave as a form of reasonable accommodation nor is Complainant entitled to the accommodation of her choice.5 See e.g., Calacsan v. Dep’t of the Navy, EEOC Appeal No. 0120110592 (Jan. 4, 2013); Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994). Under the circumstances of this case, we find that the Agency fulfilled its obligations under the Rehabilitation Act by providing Complainant with liberal leave, permitting her to be paid for several months even though she was not able to perform the functions of her position, and finally offering Complainant reassignment to a different position. See Yolanda S. v. Soc. Sec. Admin., EEOC Appeal No. 2020002457 (Sept. 9, 2021). Upon a careful review of the record, as well as the parties’ arguments on appeal, we find that the AJ correctly determined that the preponderance of the record did not establish that Complainant was discriminated against as alleged. Accordingly, we AFFIRM the Agency’s final action. 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 4 Moreover, we note that in requesting a reasonable accommodation, Complainant acknowledged that she could not perform the essential functions of her position. See ROI 2 at 112. 5 Complainant’s argument on appeal that she was not requesting indefinite LWOP as she intended to return to work after her surgery is without merit as Complainant herself told the Agency that she was unable to provide even an estimate of how long she expected her requested LWOP would last. See ROI 1 at 122. Contrary to Complainant’s argument, the Agency was not required to change its policies regarding leave in order to accommodate Complainant. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No.0120133009 (May 21, 2015). 2021000044 5 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). 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. 2021000044 6 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 8, 2022 Date