Renee L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181625 (E.E.O.C. Sep. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Renee L.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120181625

Agency No. 200406372016102055

DECISION

On April 9, 2018, 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
March 8, 2018 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. 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 Licensed Practical
Nurse (LPN), GS-6, at the Veterans Affairs Medical Center in Asheville, North Carolina. On May
16, 2016, Complainant filed a formal complaint of discrimination alleging she had been subjected
to discrimination based on disability and in reprisal for prior protected EEO activity when on
December 28, 2015, she was issued a Letter of Proposed Removal for excessive unapproved
absences. The Proposed Removal was finalized, and Complainant was terminated on March 1,
2016.

On November 10, 2016, Complainant amended her complaint to allege that she was subjected to
discrimination on the bases of disability (Major Depressive Disorder, Recurrent Severe, Anxiety

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.
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Disorder, Bipolar II, Mixed, Attention Deficit Hyperactivity Disorder) and in reprisal for prior
protected EEO activity (current EEO protected activity) when, on February 19, 2016, her request
for a reasonable accommodation in the form of an alternate work schedule (reduced hours/days
and/or job share) was denied.

The Agency processed the termination claim as a mixed case complaint. However, prior to its
issuance of a final agency decision, Complainant filed an appeal with the Merit Systems
Protections Board (MSPB). On February 20, 2018, the Agency issued a Final Agency Decision
(FAD1) dismissing the termination claim (i.e., the mixed case portion of Complainant’s
discrimination complaint) due to her appeal pending before the MSPB.

After the investigation of Complainant’s reasonable accommodation claim, the Agency provided
Complainant with a copy of the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge. When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a Final Agency Decision
(FAD2) pursuant to 29 C.F.R. § 1614.110(b). FAD2 concluded that Complainant failed to prove
that the Agency subjected her to discrimination or reprisal as alleged.

FACTUAL BACKGROUND

Complainant testified that because of her disabilities, she experiences feelings of sadness, low
energy, hypersomnia, insomnia, feelings of worthlessness, hopelessness, guilt, decreased interest
in activities, irritability and suicidal ideations. Complainant claimed that over the three years prior
to her termination, she missed substantial amounts of work due to her medical issues. She further
asserted that throughout this period, the Agency granted her several applications for Family
Medical Leave Act (FMLA) leave. Complainant asserted that during peak flare-ups of her
depression and anxiety she becomes apathetic to her own care and situation. During one or more
of these episodes, she claimed that she could not bring herself to get her FMLA leave renewed.
Apparently, it was during such periods that Complainant took excessive amounts of unplanned
and unauthorized leave.

The record does not contain a formal request for a reasonable accommodation through the
Agency’s Local Reasonable Accommodation Committee (LRAC) process. However,
Complainant asserted that on June 8, August 14 and October 2, 2015, she verbally requested
accommodations of an alternate work schedule (reduced hours/days, part-time work and/or job
sharing). Complainant also stated that she provided management with FMLA documentation to
support her requests. Complainant testified that she had a discussion with her first-level supervisor
(S1) in her office in June and August 2015. She further asserted that she voiced her wish to find
an alternative schedule which could benefit all parties. However, according to Complainant, S1
responded that it would be too hard to schedule and stated that “I just need you here period.”
Complainant testified that S1 failed to engage in the interactive process and denied her request for
a reasonable accommodation.

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S1 testified that Complainant made a verbal request to her for job-sharing. However, S1 asserted
that it was unclear to her if Complainant was requesting an accommodation or just a change in
schedule. Still, S1 asserted that she attempted to engage Complainant in the interactive process
for a reasonable accommodation by referring Complainant to the Local Reasonable
Accommodation Coordinator (LRAC1). However, to her knowledge, Complainant never
contacted LRAC1, nor provided any medical certification of a disability.

The record shows that on October 2, 2015, Complainant sent an email to S1 requesting an
accommodation of part-time employment and/or job sharing. The email contains a note stating
that Complainant is aware that S1 is out of the office and will follow up with her when she returns.
Attached to Complainant’s email, is a request for intermittent leave pursuant to the FMLA, for the
period of October 2, 2015 through October 1, 2016. The record shows that the FMLA request was
approved less than two weeks later, on October 15, 2015.

S1 stated that she was out of the office when Complainant’s October 2, 2015 email arrived, which
noted that Complainant would follow up with her. S1 also stated that, on November 24, 2015,
after several weeks passed not hearing from Complainant, she stopped by her work-station to
discuss the October 2, 2015 email. S1 further affirmed that Complainant told her that she and
another nurse (unidentified) were interested in job-sharing. S1 stated that she explained to
Complainant that the unit-staffing and workload could not accommodate job-sharing until vacant
positions were filled. Nevertheless, S1 asserted that she then advised Complainant to contact
LRAC1 to explore her options. The record shows that the next day, S1 sent Complainant a follow-
up email with the name and telephone number for LRAC1. However, Complainant did not contact
LRAC1, and she had no further discussions with S1 concerning the matter. The record shows that
LRAC1 reviewed the facility's reasonable accommodation files and did not find any records
indicating that Complainant requested a reasonable accommodation through the LRAC process.

The Human Resources Specialist (HR) testified that Complainant was given the contact
information and the instructed to apply for an accommodation with the LRAC but did not do so.
HR explained that once a reasonable accommodation was requested, the Local Reasonable
Accommodation Coordinator contacted the employee, requested medical documentation including
limitations, and then attempted to provide an accommodation that allowed the employee to work.

Contemporaneous notes were taken on January 25, 2016 at Complainant’s Reply Meeting by HR
pertaining to Complainant’s removal notice. At this meeting, the following individuals were in
attendance: (a) Complainant; (b) a union representative (U1) acting on Complainant’s behalf; (c)
(HR) and (d) the Medical Center Director (MCD). The notes of this meeting (which Complainant
does not dispute) support the Agency’s assertion that Complainant did not pursue the formal
LRAC process. The notes state the following, in relevant part:

[U1]: [Complainant] suffers from major depressive disorder, ADHD, Bi-Polar, and
Anxiety. She has never brought her medical issues to the attention of the agency;
There are times when [Complainant] can't even get out of bed.

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[Complainant]: That's true; there are days when I can't get out of bed when it's really
bad. I don't know what happens in the workplace. I feel guilty and shame which
increases my symptoms. I don't agree that I don't know a patient status because I
work as a float nurse, so I see different patients all the time.

[MCD]: If I overturn this what will be different?

[U1]: [Complainant] wants to job share. It sounded like [S1] was supportive of this
idea. If she was part time she will be able to cope better. [Complainant] has not
contacted [LRAC1], reasonable accommodation coordinator as she was instructed,
to see about a reasonable accommodation. On Nov. 10th there were emails showing
where [S1] was discussing the job share idea. She has good rapport with patients
and staff. She did get FMLA approved on October 2, 2016. She was approved from
10/2/16 to 10/1/17.

[Complainant]: I was approved for FMLA by [DG]. I understand what the absences
do and I want to work. I let things build up but I'm working through them. I am a
good nurse when I am here. You can talk to my peers.

CONTENTIONS ON APPEAL

Complainant argues that the Agency failed to engage in the interactive process and provide her an
accommodation. Specifically, she asserts the record shows that responsible management officials
should have been on notice of her need for a reasonable accommodation as early as 2013 from the
medical information provided in her request for FMLA leave. Complainant also claims that
throughout the years, up until her termination, she provided the Agency with information linking
her medical issues to her extensive leave usage which should have put the Agency on notice that
she needed an adjustment at work. Lastly, she asserts that she directly requested an
accommodation in June and August 2015 (verbally) and then in October 2015 in writing,
requesting part-time work and/or job sharing. However, she claims that management failed to
engage in the interactive process and denied her request. Accordingly, Complainant requests that
the Commission reverse the final decision.

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
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”).

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Denial of Reasonable Accommodation

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. Reasonable accommodation includes modification to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability to perform the
essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Oct. 17, 2002)
(Reasonable Accommodation Guidance). For the purposes of analysis only, we shall assume,
arguendo, that Complainant is an individual with a disability.

Based on the record, however, we must also find that she has not established that she is qualified.
A qualified individual is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held or desired. The record
shows that Complainant’s medical condition has caused her to take a substantial amount of
unplanned leave over several years.2 The evidence before us indicates that there is no
predictability to the timing of the leave or the amount of leave that Complainant requires. An
effective accommodation in Complainant’s situation, would need to be one that substantially
improves her reliability and predictability of attendance, so that management can effectively plan
her assigned tasks.3 The possible accommodations noted by Complainant in various forms since
2013, included the following: (a) flexible leave; (b) flexible schedule; (c) reduced work hours up
to three days per week; and (d) job sharing. Complainant had requested and been granted various
categories of leave including FMLA and leave without pay. There is no basis in the record,
medical or otherwise, to conclude that any of the identified possible accommodations would
reduce the amount or unpredictability of Complainant’s absences from work. At best, we can only
speculate what would have been an effective accommodation. Without presenting an effective
accommodation, Complainant has not met her burden of establishing that the Agency failed to
reasonably accommodate her. See Ferguson v. Dep’t of Transp., EEOC Appeal No. 0120090555
(Feb. 24, 2012).

Moreover, the record reveals that S1 attempted to engage in the interactive process to identify any
possible effective accommodations for Complainant by referring Complainant to LRAC1.

2 The record shows that Complainant was hired for a full-time position but did not report for duty
anywhere close to full time.

3 Management asserts that Complainant cannot perform the essential functions of her position if
she cannot predictably report for duty. HR notes that when a nurse fails to report to duty it disrupts
the service and results in other employees having to perform job functions that they were not
supposed to perform.

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Complainant, however, failed to follow up with LRAC1.4 The EEO process for obtaining a
reasonable accommodation requires agencies and complainants to engage in an “interactive
process” regarding reasonable accommodations to determine the best options for both the
employee and management. Employees who refuse to cooperate in that process are not entitled to
an accommodation. See Carleen L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120151465
(May 12, 2017), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002)
(Enforcement Guidance on Reasonable Accommodation); see also Zachary K. v. Dep't of Veterans
Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015).

In sum, the Commission finds that the Agency did not violate the Rehabilitation Act. The Agency
attempted to engage in the reasonable accommodation interactive process with Complainant based
upon her written request to S1 by referring her to LRAC1 to determine whether she could be
accommodated. Complainant failed to contact LRAC1. Furthermore, Complainant has not
identified an effective accommodation that would allow her to perform the duties of her position.
Accordingly, the Commission finds that the Agency's actions did not violate the Rehabilitation
Act.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM FAD2.5

4Complainant alleged that management officials were not responsive to her previous verbal
requests for reasonable accommodation; however, management officials denied any knowledge of
any requests and there is no evidence corroborating that such requests were made.

5 We further find that to the extent that Complainant is alleging disparate treatment regarding this
claim (apart from accommodation), as discussed above, Complainant has not proffered any
evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination
or reprisal.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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, 2019
Date