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

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2022003869 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leoma B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022003869 Agency No. 200J-0438-2021103133 DECISION On July 7, 2022, 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 June 17, 2022, final decision 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. 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. At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant, GS-6, at the Agency’s Sioux Falls VA Medical Center in Sioux Falls, South Dakota. On May 20, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (irritable bowel syndrome) and age (YOB: 1954) when: 1. On April 2, 2021, she was denied overtime; 2. Since April 7, 2021, she has been denied a reasonable accommodation; and 3. On April 8, 2021, she was charged as Absent Without Leave (AWOL). 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. 2022003869 2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming, arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence to support her assertions of a discriminatory motive. The Agency also found that Complainant had not established that she was denied a reasonable accommodation because the evidence in the record indicated that Complainant had never requested an accommodation. The Agency therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 Chap. 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”). We find that the Agency’s decision accurately recounted the relevant material facts and correctly identified the legal standards to prove that Complainant was subjected to disparate treatment on the basis of either her age or disability.2 With respect to claim 3, we find that Complainant did not establish a prima facie case as the evidence in the record does not indicate that Complainant was actually charged as AWOL on April 8, 2021. See Report of Investigation (ROI) at 103. Because she did not suffer an adverse employment action, she has not established a prima facie case with respect to that claim.3 See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sept. 7, 2007). With respect to claim 1, Complainant’s supervisor stated that he was on annual leave on April 2, 2021, and, therefore, was not available to either deny or approve overtime but that there is also no record in the timekeeping system that Complainant requested overtime on that date. See ROI at 89-90. Complainant’s time and attendance record for April 2, 2021, also does not show a request for overtime. See ROI at 103. 2 As an initial matter, we note that Complainant submitted some new evidence on appeal regarding other EEO complaints brought against the same management officials. As a general rule, no new evidence will be considered on appeal, but we also note that the other cases do not involve Complainant herself nor do they appear to relate to any of the claims raised in the instant complaint. See EEO MD-110, at Chap. 9, § VI.A.3. 3 To the extent Complainant asserts that the AWOL charge was retroactively removed by management after she filed the instant complaint, there is no evidence to support her assertion. 2022003869 3 Even assuming arguendo that Complainant could establish a prima facie case with respect to claim 1, there is no evidence in the record to support her assertion of any discriminatory motive and the Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). We further find that the Agency’s decision correctly identified the legal standards for Complainant to establish that the Agency violated the Rehabilitation Act by denying her a reasonable accommodation as alleged in claim 2. Under the Commission's regulations, 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. However, the evidence in the record does not indicate that Complainant requested a reasonable accommodation. The Reasonable Accommodation Coordinator stated that although she told Complainant via email about the steps to follow to request a reasonable accommodation, she never heard back from Complainant and no request for a reasonable accommodation was made. See ROI at 95. We note that the record includes a copy of a written request for a reasonable accommodation dated April 20, 2021, but it is not clear whether the form was ever submitted to the Agency. Moreover, even if it had been, the request is not accompanied by any medical documentation nor is there any indication in the record that anyone in the Agency knew of Complainant’s condition. The Commission has held that, if an individual’s disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. See Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012). Under the circumstances, we find that the Agency correctly concluded that Complainant did not establish a violation of the Rehabilitation Act. 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 finding that Complainant did not establish that she was discriminated against as alleged. 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. 2022003869 4 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. 2022003869 5 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