[Redacted], Charles O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2022004016 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2022004016 Agency No. 2003-0350-2021105793 DECISION On July 20, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), concerning his 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, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist, GS-0901-10, at the Agency’s Veterans Service Center in Little Rock, Arkansas. On October 13, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On September 15, 2021, Complainant’s supervisor caused Complainant’s retirement application to be delayed when he omitted the amount of time off Complainant had taken because of a medical condition from Complainant’s form SF-3112B 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. 2022004016 2 (Supervisor’s Statement), and falsely stated that Complainant refused a reasonable accommodation. 2. On September 16, 2021, the Human Resource Specialist (HRS-1) requested that Complainant submit his medical information to him, and he completed the SF-3112D (Agency Certification of Reassignment and Accommodation Efforts). 3. On September 20, 2021, Complainant’s supervisor failed to correct the personal opinion information that he put on Complainant’s retirement disability form. 4. On September 20, 2021, the District Reasonable Accommodation Coordinator (DRAC) delayed processing of Complainant’s retirement packet by failing to correct the information on Form 3112D. 5. On September 21, 2021, the Director of Human Capital Services (HCS Director), and the DRAC, refused to look for a reassignment for Complainant. 6. On September 21, 2021, HRS-2 failed to act after Complainant reported the actions of the HCS Director and the DRAC and the needed corrections on the form. 7. On September 22, 2021, the Privacy Officer refused to investigate Complainant’s claim of a Health Insurance Portability and Accountability Act (HIPAA) violation committed by HRS-1. 8. On September 22, 2021, the Human Resource Center (HRC) Director denied Complainant’s request for her to contact the HCS Director to request that he make corrections to Complainant’s retirement packet. 9. As of October 1, 2021, Complainant was not provided the name of the Privacy Officer’s supervisor. Though Complainant did not initially allege discrimination based on disability (fibromyalgia and posttraumatic stress disorder (PTSD)), he subsequently raised disability as a basis during the EEO investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On May 9, 2022, Complainant notified the Agency in writing that he wanted the Agency to issue a final decision on the merits of his complaint. The Agency received Complainant’s election form on May 10, 2022. Approximately 133 days later, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2022004016 3 In issuing the decision, the Agency initially reframed Complainant’s nine separate claims into a single claim alleging discrimination when from September 15 to October 1, 2021, Complainant was subjected to harassment based on disability (physical)2 and reprisal with respect to the processing of his disability retirement paperwork. The Agency ultimately found that Complainant could not prevail on his claim regarding the processing of his disability retirement paperwork because it failed to state an EEO claim and constituted a collateral attack on the disability retirement process. Additionally, the Agency concluded that even if Complainant’s allegation stated a claim of discrimination, Complainant failed to establish that the “Agency’s actions were taken due to retaliatory motivation.” This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant vehemently disputes the Agency’s finding of no discrimination and requests that the Commission sanction the Agency for its failure to issue a final decision within the requisite 60-day time frame. Complainant also contends that the final decision contains numerous unspecified discrepancies and that he is unsure whether the Agency reviewed all the evidence contained in the approximately 610-page ROI, as the Agency failed to upload the correct ROI on appeal. As for the merits of his complaint, Complainant maintains that contrary to the Agency’s finding that it did not have jurisdiction over the processing of Complainant’s disability retirement paperwork, “[t]he basis of [his] claims were how [the] agency retaliated against [him] for filing the original EEO [complaint].” He maintains that “[e]ach party took [part] in prolonging or providing false information to affect [his] disability retirement process.” Complainant denies that he refused the reasonable accommodations that the Agency had provided him. He further contends that the Agency should have considered whether he could be reassigned to a different position. Finally, Complainant maintains that the HRS-1 had no right to request his medical information, as that responsibility rested with the DRAC and not HRS. He also maintains that the Privacy Officer failed to investigate his allegation that HRS-1 violated the Privacy Act and HIPAA by requesting his medical records. Complainant asserts that the Executive Director refused to provide him with the name of the Privacy Officer’s supervisor. Complainant largely reiterates the same contentions in his subsequent statements. The Agency requests that the Commission affirm its final decision. 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). 2 The Agency only indicated that Complainant has a physical disability and made no mention of Complainant’s PTSD. 2022004016 4 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 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”). ANALYSIS AND FINDINGS Procedural Matters Initially, we will address Complainant’s request for sanctions against the Agency for its failure to issue a final decision within the requisite 60-day time limit. The Commission’s regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency, or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional. As the Commission stated in Royal v. Dep’t of Vet. Aff., EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must ensure that agencies, as well as complainants, abide by its regulations.” Because of the length of time to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a final decision in this case, we decline to do so. Although the Agency failed to issue a timely decision as required by regulation, issuing a decision approximately 73 days beyond the regulatory time frame, we find that the Agency did not act in a manner to warrant a sanction. See, e.g., April T. v. Dep’t of the Army, EEOC Appeal No. 2021002762 (Aug. 3, 2022) (finding that the Agency's 446-day delay in issuing the decision did not justify the imposition of sanctions); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days); Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den., EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing the decision did not warrant sanctions); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016), citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after 371 days)). 2022004016 5 While we will not impose a sanction in the present case since the delay in issuance of the Agency decision did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency's failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. Beatrice B. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019001641 (Sept. 17, 2020) (the Commission declined to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP), which monitors the federal agencies’ EEO programs, of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decisions. We shall also refer the Agency to FSP for its failure to provide the Commission with a complete copy of the ROI. Under our regulations, agencies are obligated to provide a complete record to the Commission. See Crysta T. v. Dep’t of Agric., EEOC Appeal No. 0120151930 (May 17, 2017), citing 29 C.F.R. § 1614.403(e). Our review of the record here shows that following its investigation, the Agency complied a 610-page ROI, but only uploaded 259 pages of the ROI for the Commission’s review. Though Complainant promptly informed the Agency that the uploaded ROI was incomplete, the Agency never provided the Commission with the complete ROI. Ultimately, Complainant provided the full ROI to the Commission. As the record clearly shows that Agency failed to meet its legal obligation under 29 C.F.R. § 1614.403(e), we find that referral to FSP is warranted. Lastly, we address the Agency’s decision to reframe Complainant’s nine separate claims into a single claim of discrimination alleging discrimination with respect to the processing of his disability retirement paperwork. Having reviewed the record, we find that the claims should be addressed separately, as not all of Complainant’s claims relate to the processing of his disability retirement paperwork. We discuss further below. Claims 1, 3-4, 6, and 8 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. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as 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 (Apr. 21, 1994). In claims 1, 3-4, 6, and 8, Complainant challenges the Agency’s actions, or inaction, in the processing of his disability retirement application. While we are mindful of Complainant’s underlying allegations, we note that the Commission has long held that an employee cannot use the EEO complaint process to collaterally attack the disability retirement process. 2022004016 6 See Tyrone D. v. Smithsonian Inst., EEOC Appeal No. 2020003601 (Aug. 17, 2020) citing Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998) and Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994). As we have no jurisdiction over Complainant’ claims regarding the way the Agency processed his disability retirement paperwork, we conclude that the Agency properly dismissed claims 1, 3-4, 6, and 8, for failure to state a claim. Claims 2, 7, and 9 Next, we address claims 2, 7, and 9, concerning Complainant’s allegation that Agency officials improperly requested his protected medical information and failed to investigate said violations. Having reviewed the record, we initially concur with the Agency’s decision to dismiss claims 7 and 9 for failure to state a claim because our review of the record shows that the allegations in claims 7 and 9 directly relate to whether the Agency complied with the Privacy Act and/or HIPAA regulations. As the Commission has long held that such violations are not within the purview of the EEO process, we conclude that these claims were properly dismissed. See Osborne v. U.S. Postal Serv., EEOC Request No. 05950654 (Feb. 15, 1996). In claim 2, Complainant alleges that HRS-1 violated his right to medical privacy by improperly requesting his medical information and completing the SF-3112D form on his behalf. While the Commission does not have jurisdiction over alleged violations of the Privacy Act and/or HIPAA, we note that Section 102(d) of the Americans with Disabilities Act, and by extension Section 501(g) the Rehabilitation Act, specifically prohibits the disclosure of medical information, except in certain limited situations. See Tyrone D., supra, citing Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, (Oct. 17, 2002) (describing the limited exceptions to the medical confidentiality requirements). Furthermore, we note that the Rehabilitation Act also limits an agency’s authority to undertake disability-related inquires or require medical examinations of employees unless the agency’s rationale for doing so is job related and consistent with business necessity. See Herman P. v. U.S. Postal Serv., EEOC Appeal No. 2020000312 (May 19, 2021). As our reading of the record persuasively shows that the underlying allegation in claim 2 is based, in part, on Complainant’s allegation that HRS-1 violated his right to medical privacy in violation of the Rehabilitation Act, we disagree with the Agency’s decision to reframe claim 2 as part of Complainant’s disability paperwork processing claim. We shall therefore consider the merits of claim 2. By Complainant’s own admission, he contacted HRS-1 because the Agency’s Retirement Center specifically advised him to contact his local HR liaison for assistance in completing the requisite disability retirement paperwork, including the SF-3112D form. ROI at 000328. The record shows that while HRS-1 was assisting Complainant in his capacity as the local HR liaison, the DRAC informed HRS-1 that the responsibility for completing Complainant’s disability paperwork fell within the DRAC’s jurisdiction. Id. at 000135. In response, HRS-1 stopped his work and referred Complainant to the DRAC. Id. at 000134. 2022004016 7 While we understand Complainant’s concerns, we are disinclined to find HRS-1’s actions to be discriminatory because the record clearly shows that HRS-1 requested Complainant’s protected medical information because Complainant specifically asked HRS-1 to assist him with filling out the requisite disability retirement paperwork. As HRS-1 took the alleged actions in his capacity as the local HR liaison and at the direction of the Agency’s Retirement Center, we find his actions to be job related and wholly consistent with business necessity. As such, we conclude that Complainant cannot prevail on this claim. Claim 5 Finally, we turn to claim 5, concerning Complainant’s allegation that on September 21, 2021, the HCS Director and the DRAC refused to look for a reassignment for him. Complainant had sought reassignment as an accommodation for his fibromyalgia and PTSD. Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). To prevail on his denial of reasonable accommodation claim, Complainant must show that: (1) he was an individual with a disability; (2) he was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). We note that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable a complainant to perform the essential functions of his or her current position or all other reasonable accommodations would impose an undue hardship. King W. v. U.S. Postal Serv., EEOC Appeal No. 2019001070 (Mar. 20, 2019); and Zachary K. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120130795 (Nov. 19, 2015). As our review of the record clearly shows that Complainant’s healthcare provider opined that Complainant was unfit to work and unemployable in his position or any other position, we find that Complainant has not shown that he is a qualified individual with a disability. ROI at 000064. We therefore conclude that the Agency has not violated the Rehabilitation Act as alleged in claim 5. See Jarvis M. v. U.S. Postal Serv., Appeal No. 2021002934 (Mar. 23, 2022) (finding that complainant was not a qualified individual with a disability because he failed to show that he had been “cleared to work in any capacity due to his medical condition and could not establish that he could perform the essential functions of his job with or without reasonable accommodation”). 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 final decision. 2022004016 8 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). 2022004016 9 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 8, 2023 Date