Tamesha C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

0120181381 (E.E.O.C. Sep. 10, 2019)

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

Tamesha C.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181381

Agency No. 200J01AL2016102777

DECISION

On March 16, 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
February 16, 2018 final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., 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 in part and VACATES and REMANDS
the decision, in part.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Procurement
Technician, GS-1106-07, in the Network 23 Contracting Office (NCO 23) located in Minneapolis,
Minnesota. On June 29, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to harassment on the bases of race (Native-American),
national origin (Native-American), sex (female), color (brown), disability (Carpal Tunnel
Syndrome, Post Traumatic Stress Disorder, arthritis, joint pain, and anxiety), age (53), and reprisal
(prior EEO activity) when:
(1) on February 22, 2016, Complainant’s supervisor (S1) (White, American, female, prior EEO
activity, disability) denied Complainant overtime;

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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(2) on February 29, 2016, S1 denied Complainant’s request for a functional assessment;
(3) on March 23, 2016, S1 yelled at Complainant;
(4) on March 24, 2016, Complainant was denied a reasonable accommodation (headset);
(5) on March 18, 2016, S1 gave Complainant a letter of written counseling (LOC);
(6) on March 30, 2016, S1 gave Complainant a performance rating of Unsuccessful;
(7) on April 4, 2016, Complainant was denied a reasonable accommodation (flexible schedule);
(8) on April 14, 2016, S1 gave Complainant a “No Contact” order regarding two co-workers (C1
and C2, respectively);
(9) on April 20, 2016, Complainant was not included in an office email;
(10) on April 24, 2016, Complainant was charged Absent without Leave (AWOL) instead of Leave
without Pay (LWOP) for Family and Medical Leave Act (FMLA);
(11) on April 28, 2016, Complainant was told to buy her own heater while other coworkers have
heaters that management provided to them;
(12) on April 29, 2016, and continuing, S1 ignores Complainant’s emails;
(13) on May 2, 2016, Complainant was denied a reasonable accommodation (parking);
(14) on May 3, 2016, Complainant was denied a reasonable accommodation (telework);
(15) on May 10, 2016, Complainant was denied a one-hour lunch and was denied permission to
wear shorts to work although other coworkers are allowed to wear them;
(16) on May 11, 2016, and continuing, S1 sends harassing emails and holds Complainant to a
higher standard;
(17) on or about May 2016, S1 assigned Complainant GS-9 and GS-12 grade work, although
Complainant is a GS-7;
(18) on May 11, 2016, S1 stood in Complainant’s doorway, blocking her exit;
(19) on June 24, 2016, S1 divulged Complainant’s private medical information to other
management officials;
(20) on June 29, 2016, S1 denied Complainant overtime;
(21) on July 22, 2016, S1 was short and abrupt when training Complainant;
(22) on July 22, 2016, S1 denied Complainant’s request for a job coach;
(23) on July 25, 2016, S1 passed by Complainant and glared at her;
(24) on July 28, 2016, S1 gave Complainant a written counseling for performance and threatened
to place Complainant on a Personal Improvement Plan (PIP);
(25) on July 28, 2016, S1 lied on Complainant’s Office of Workers’ Compensation Program
(OWCP) paperwork stating Complainant was not a Schedule A employee, which is false; and
(26) on July 28, 2016, S1 denied Complainant’s request for overtime.

After the EEO investigation, 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 decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination or reprisal as alleged.

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FACTUAL BACKGROUND

Overtime – Claims 1, 20, and 26

Complainant asserts that when she requested overtime for the dates alleged, S1 told her that there
was no need for her to work overtime and that she should be able to get her work done within the
timeframe of her tour of duty. Complainant also asserts that she was treated differently from her
co-workers because other employees at the time were getting overtime. Complainant notes that
S1 has given her overtime in the past but that she was denied on these dates.

S1 asserts that because of budget concerns in the department during this time, overtime was being
scrutinized and approved on an as-needed basis and was typically denied across the board for
employees. S1 states that on February 22, 2016, she denied Complainant overtime to work on
emails.2 S1 further states that on June 29, 2016, she approved three out of the 12 hours of overtime
requested by Complainant.3 In addition, S1 states that she denied Complainant’s overtime request
on July 28, 2016.4 S1 explains that Complainant was requesting overtime for tasks, which in her
opinion, could have been completed during Complainant’s regular tour of duty. S1 also states that
out of the three Procurement Technicians that she supervises, Complainant was the only one that
requested overtime

Performance Counseling

Letters of Counseling – Claims 5 and 24

On March 18, 2016, S1 issued Complainant a written LOC. The LOC stated in part:

On March 3, 2016 [Complainant was provided an assignment to
review select contract files to ensure that the naming conventions

2 S1 noted the following in her February 2016 denial of overtime: “There is insufficient
justification for any need for OT or [Comp Time], let alone an unprecedent request of 48hrs.”

3 S1 noted the following in her response to Complainant’s June 2016 request for 12 hours of
overtime: “[Complainant] has an EEO meeting scheduled for 6/30. I recommend approval of 3
hours of OT requested for this date.”

4 S1 noted the following in her July 2016 denial of overtime: “Employee was provided advance[d]
notice of the assignment and the time permitted was considered reasonable. The assignment
consists of looking up 12 actions to see if they have C11 letters in them. It is not expected to take
more than an hour. Although the employee was out of the office for two days, I reviewed the
briefcase actions while she was gone and she has no other reports to review. The amount of items
in the briefcase is average and is not considered excessive. Assistance can be provided if needed
and OT is not deemed necessary.”
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were correct. A deadline of March 17, 2016 was provided for this
task. On March 11, 2016, I sent an email to see where you were at
with the assignment. The purpose of this email was to see if you
understood the assignment. However, your response to me was
unprofessional and disrespectful. Ultimately, you failed to complete
the assignment by the specified date.

Complainant asserts that the LOC was unjustified and that she had reasons for not completing
certain assignments. Complainant further states that anytime she disagrees with S1 about anything,
S1 considers it disrespectful communication.

S1 states that all three of the Procurement Technicians that she supervises were given tasks to
complete by a certain deadline. S1 asserts that Complainant did not complete the assignment in
a timely manner. S1 also states that Complainant not completing assignments had become an
issue. S1 further asserts that she issued the written counseling for clarity because of
communication issues with Complainant. S1 notes that the LOC is not a form of disciplinary
action and was not placed in Complainant’s electronic Official Personnel Folder. S1 also notes
that Complainant had a pattern of routinely disagreeing with her and considered everything that
she disagreed with as harassment.

The record reflects that on June 28, 2016, S1 issued a written LOC notifying Complainant that the
performance of her position duties was less than Fully Successful at the time in the critical element
of Element A, Procurement. Specifically, S1 noted several instances where Complainant failed to
produce complete procurement packages and actions taken within the prescribed timeframes,
including failure to ensure that milestone plans, and meta-tags were attached, and file names were
correct. Complainant states that many of the issues cited in the LOC were not her responsibility.
S1 asserts that the purpose of the LOC was to notify Complainant that the performance of the
duties of her position as a Procurement Technician were less than Fully Successful. She also states
that the LOC contained boilerplate language notifying Complainant that failure to meet standards
would result in being placed on a PIP. S1 notes that the language used in the LOC is standard and
is included on all pre-PIP letters. S1 asserts that the decision to issue Complainant the LOC had
nothing to do with Complainant’s protected classifications.

Unsuccessful Mid-Term Performance Rating – Claim 6

Complainant states that S1 gave her an Unsuccessful rating on her performance review.
Complainant also states that S1’s justification was that she had received multiple complaints about
Complainant and notes that S1 failed to provide evidence of such complaints when she met with
S1 and the union steward (U1) to discuss the rating.

S1 states that on March 30, 2016, she rated Complainant as “needing improvement to be Fully
Successful” in Complainant’s mid-year performance review. S1 notes that she also listed
Complainant’s deficiencies and pointed out areas in which Complainant needed to improve.
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S1 also states that she completed this review as part of her job duties as Complainant’s supervisor
and that this rating had nothing to do with Complainant’s protected classifications.

The record contains the March 30, 2016 mid-year performance rating which provides a three-page
written narrative by S1 in support of her rating. For example, S1 noted that when she requests a
status from Complainant, she is often argumentative and slow to respond. S1 also noted that
Complainant’s responses are not clear and concise and oftentimes do not provide the information
requested. One example provided by S1 is that when status is requested, Complainant will copy
her on an email to the customer. However, she will not respond to S1 directly, telling her what the
status is or what actions she is waiting on.

S1 further noted that she has directed Complainant on what is expected, yet she nevertheless
continues to seek clarification on what is required when S1 asks for a status, she pushes back, and
consistently fails to provide it in the correct format. S1 also notes that Complainant often
communicates with her in an uncourteous, uncooperative, and unprofessional manner. In addition,
S1 noted that when Complainant is tasked with an assignment, she often pushes back and responds
in a hostile and accusatory manner. S1 provided several examples of this behavior.

AWOL - Claim 10

Complainant states that on April 24, 2016, she emailed S1 requesting leave. Complainant further
states that she did not have any unused leave available, so she requested LWOP. She states that
S1 denied her request and told her she would be AWOL if she did not come to work. In addition,
Complainant asserts that this is harassment because S1 could have given her leave without pay, as
she has in the past. Complainant also asserts that S1 scrutinized her more than younger, white,
male employees.

S1 states that on April 25, 2016, Complainant sent her an email stating that she was evoking
FMLA-leave without pay. S1 explains that she informed Complainant that she needed her at work
and that because they only had three technicians, she would not approve the leave without pay that
day. S1 also states that she explained to Complainant that she had exhausted her FMLA leave. S1
notes that this decision was consistent with the leave policy and that Complainant was not
disciplined for the AWOL.5

Heater Denied – Claim 11

Complainant asserts that on April 28, 2016, S1 told her to buy her own heater while other
coworkers have heaters that management provided to them. Complainant further states that
subsequently, management did provide her with a heater.

S1 denies telling Complainant to buy her own heater. However, she did tell Complainant other
employees had brought their own heaters from home.

5 Complainant does not indicate the reason she requested leave.
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S1 notes that one of the supervisors did buy their employees heaters, but that there was no policy
or requirement for supervisors to do so. S1 asserts that even though this was not a requirement,
management did give Complainant a heater to use in her office.

Harassment

S1 Yelled at Complainant – Claim 3

Complainant asserts that on March 23, 2016, S1 came to her office and yelled at her. Complainant
does not recall specifically what S1 was yelling at her. However, Complainant states that this was
a pattern for S1 and that she was very intimidating. Complainant further states that no one
witnessed this event because she did it when no one was around. Complainant also states that she
has not heard or witnessed S1 yell at other employees.

S1 asserts that she has not yelled at any of her employees, including Complainant. S1 states that
Complainant indicated and had shown through her actions that she was not comfortable speaking
with S1 face to face. S1 notes that Complainant even called 911 during one interaction with her.
S1 explains that for this reason, she usually spoke with Complainant via phone, email, or the
LYNC communication service.

No Contact Order – Claim 8

Complainant states that in the past there had been an issue between C1, C2 and herself in which
management requested that they have no contact with each other. Complainant asserts that she
has adhered to this order. According to Complainant, on April 14, 2016, out of nowhere, S1 sent
her an email informing her to have no contact with the two coworkers. Complainant asserts that
S1 never told her why she sent the email and believes this was just another way for S1 to harass
her. Complainant also asserts that S1 always treated C1 and C2 better than she treated
Complainant.

S1 denies giving Complainant a no-contact order. S1 asserts that she was told that Complainant
had a no-contact order with C1 and C2 which was in effect prior to her becoming Complainant’s
supervisor. S1 further states that on April 14, 2016, C2 informed her that Complainant was by his
office and he felt unsafe. S1 notes that there was no work-related reason for Complainant to be in
the office and she sent the email reminding Complainant that she was to have no contact with
either party. She also told Complainant that if she needed to discuss issues with either C1 or C2,
she should conduct it via email, telephone, LYNC, or in a common area.

Not Included in an April 20, 2016 Office Email – Claim 9

Complainant asserts that her name was removed from the group email listing. Complainant further
states that the removal of her name was not rectified immediately. S1 states that Complainant was
not taken off the email grouping.
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S1 explains that the April 20, 2016 email at issue herein was sent to the Contracting staff only. S1
notes that neither Complainant nor any of the other Procurement Technicians were included in this
email group.

Emails Ignored – Claim 12

Complainant claims that S1 does not respond to her emails or is slow to respond. Complainant
further asserts that S1 does not treat younger, white male employees this way. S1 denies ignoring
Complainant’s emails. However, S1 states that due to past allegations from Complainant accusing
her of sending harassing emails, Human Resources (HR) personnel advised her to only respond to
work related emails concerning Complainant’s job duties. S1 further states that whenever she
received emails from Complainant referring to other issues, such as harassment, she referred
Complainant to the EEO manager. S1 notes that if she received an email that she had already
responded to, she would not respond again. S1 also asserts that her actions have nothing to do
with Complainant’s protected classes.

One-Hour Lunch and Shorts Not Permitted – Claim 15

Complainant states that on May 10, 2016, she did not bring lunch with her and wanted to go off
the premises for lunch, so she requested an additional 30 minutes for lunch, which S1 denied.
Complainant notes that she does not know if any other employees have requested an extended
lunch without using leave but that other employees, including S1 took more than 30 minutes for
lunch at times. Complainant also states that during this time, it was hot in the office building and
she requested to wear shorts, which S1 also denied. Complainant believes that a contract worker
wore shorts but notes that none of her coworkers were permitted to do so.

S1 states that all Procurement Technicians under her supervision were afforded a 30-minute lunch
break each day. S1 also states that if any employee wanted more than a 30-minute lunch, they
would need to put in a request for leave. S1 explains that to her knowledge, Complainant did not
put in a leave request for the extended lunch that was denied. In addition, S1 notes that during
this time, office temperatures were high (but in a safe range) because of problems with the air
conditioner and some employees were uncomfortable working in the office. S1 explains that
because of uncomfortable office temperature, all employees were permitted to use leave or
telework, but no one was permitted to wear shorts which was against the Agency’s dress code. In
addition, S1 notes that Complainant did not request a reasonable accommodation to wear shorts.
S1 further notes that the one contract employee who wore shorts is not governed by the Agency
dress code. However, S1 states that none of the employees who were covered under the Agency
dress code were permitted to wear shorts.

Harassing Emails - Claim 16

Complainant states that S1 likes to micromanage her work and continuously sends Complainant
emails requesting the status of dates on her actions. Complainant further states that S1 held her to
a higher level than her peers and did not micromanage their work.
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S1 denies sending Complainant harassing emails. S1 asserts that all Procurement Technicians
were given similar assignments and had the same position description. S1 notes that if anything,
she reduced Complainant’s work load because Complainant did not do timecards or order supplies,
which the other Procurement Technicians were responsible to perform.

U1 states that she sat in on several meetings with S1 and Complainant where the meeting started
out well but by the end, S1 would raise her voice. U1 states that she could sense tension in those
meetings. U1 stated that she believed the tension was due to Complainant’s EEO activity and
disability status.

Assignment of Higher-Graded Work – Claim 17

Complainant states that in or about May 2016, because S1’s instructions to Complainant with
respect to assigned tasks were not clear, Complainant performed duties that were not her
responsibility. Complainant further states that later S1 trained her on what she was supposed to
do. S1 states that she did not require Complainant to do anything that was not in her position
description. S1 notes that while Complainant may have completed tasks that she did not have to
complete, S1 never required Complainant to do such tasks. S1 asserts that she always explained
to Complainant the tasks that she was asked to complete.

S1 Blocked Complainant’s Exit – Claim 18

Complainant states that on May 11, 2016, S1 stood in her doorway and blocked her exit. While
Complainant notes that S1 eventually moved out of the door way, she believes that S1 did this to
provoke her. Complainant asserts that these types of actions were not new and at one time she
attempted (without success) to get a restraining order against S1.

S1 denies Complainant’s assertions and states that she did not go to Complainant’s office on this
date. S1 further states that in the past, when she would go to Complainant’s office, Complainant
would immediately leave. S1 further notes that on one occasion, Complainant even called 911
before she had said anything. Accordingly, S1 states that she stopped going to Complainant’s
office all together.

S1 was Short and Abrupt Towards Complainant During Training – Claim 21

Complainant states that on July 22, 2016, S1 conducted training via LYNC with Complainant.
Complainant further states that during the training, S1 had no patience with her, did not allow her
to ask questions, and she did not have material available for Complainant to follow. Complainant
believes that S1 had no patience with her because of her disabilities. S1 denies Complainant’s
allegation and notes that the training lasted about 45 minutes. In addition, S1 asserts that she
answered all of Complainant’s questions during the training. S1 further asserts that at no time was
she abrupt and notes that Complainant did not raise any issues with her at the time.

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S1 Glaring at Complainant – Claim 23

Complainant states that on July 25, 2016, S1 glared at her while she walked by her in the hallway.
Complainant states that following this event, she sent S1 an email which S1 ignored. S1 denies
this allegation.

OWCP Paperwork - Claim 25

Complainant states that when S1 completed paperwork for her workers’ compensation case, S1
incorrectly noted that Complainant was not a Schedule A employee. Complainant believes that
the inaccurate notation had to be intentional because S1 should have known that Complainant was
a Schedule A employee. S1 states that although Complainant may meet the definition of a
Schedule A employee, she was not hired under that authority. Accordingly, S1 asserts that
Complainant’s OWCP paperwork was correct.

Disclosure of Confidential Medical Information – Claim 19

Complainant asserts that on June 24, 2016, S1 posted on the Outlook calendar (which is accessible
by all office staff) that she and Complainant were going to have a meeting to discuss her reasonable
accommodation request for a portable toilet. Complainant states that it was embarrassing to learn
that a coworker (C3) (female) discussed this information with numerous people in the office. S1
denies this allegation.

Denial of Reasonable Accommodations – Claims 2, 4, 7, 13, 14 and 22

Functional Assessment – Claim 2

Complainant states that she made a request for a functional assessment due to complications from
Carpal Tunnel Syndrome. Complainant further states that she had to ask S1 repeatedly about the
assessment and it took a few months to get it done.

S1 asserts that prior to her becoming Complainant’s supervisor, Complainant had a functional
assessment that was completed in 2014. S1 also states that Complainant did request that another
functional assessment be completed in February 2016. S1 explains that although Complainant’s
functional assessment from 2014 was still active, Complainant received another assessment on
April 19, 2016, which determined that Complainant had the correct ergonomic equipment and set
up at that time.

Headset – Claim 4

Complainant asserts that since 2013 she had an existing accommodation for a wireless headset.
Complainant states that sometime in March 2016, her headset broke and she notified S1 that she
needed a new one. Complainant asserts that even though she had gone through the reasonable
accommodation process in 2013, S1 required that she go through the process again.
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Documentary evidence in the record shows that Complainant was approved for the headset on May
24, 2016. However, it is not clear when she received it. Without specifying the exact amount of
time, Complainant states that it took months to get it. S1 explains that the accommodation request
was approved but it did take a while for the headset to arrive because it was on back order.

Flex Schedule – Claim 7

Complainant states that while employed with the Agency, her tour of duty was 6:00 a.m. to 2:30
p.m. Complainant also states that due to her arthritis and vertigo some days she would not be able
to get out of bed and was not able to drive. In addition, Complainant states that because of this, as
a reasonable accommodation, she requested to flex her schedule considerably to be able to come
in and begin work at 9:00 a.m. or 10:00 a.m. in the morning and be able to make up her time so
that she could work her eight hours. Complainant asserts that S1 denied this request as not feasible.
Complainant also asserts that S1 offered the alternative accommodations of flexing her schedule
by 15 minutes or to use FMLA. Complainant states that these alternatives would not work because
she had already exhausted her FMLA and flexing her schedule by 15 minutes would not make a
difference. Complainant further asserts that C2 was permitted a flexible schedule.

S1 asserts that this accommodation request was not denied. Rather, S1 asserts that she took part
in an interactive process with Complainant and offered alternative accommodations that she felt
would have been effective. S1 also states that she offered Complainant the flexibility to use FMLA
when needed, authorized Complainant to flex her schedule by 15 minutes, and eventually
authorized Complainant to work from home full-time. S1 states that Complainant did not accept
any of the alternative accommodations offered.

Parking – Claim 13

Complainant states that due to complications from several conditions including arthritis, anxiety
and PTSD, she is unable to walk long distances and made several requests that S1 provide her with
an onsite handicapped parking spot. The record shows that Complainant had a mobility disability
placard for her vehicle. However, NCO 23 (located in the Thresher building) had only a few
parking spots available. Complainant further states that S1 denied her request and instructed
Complainant to park in the parking garage (located approximately one block from the Thresher
building) and use the ramp. Complainant asserts that this was not a good alternative because it
was too far of a walk. Complainant also asserts that she could have parked onsite if S1 was willing
to work with the managers of the facility to get a spot for her.

The record contains a letter from Complainant’s physician (P1) dated May 21, 2015 stating that
Complainant needs a parking space on-site due to her medical condition which is stated as
inflammatory arthritis, pain in multiple joints, chronic back pain, diabetes, hypertension, anxiety
and “other medical conditions.” P1 notes that Complainant is not able to walk from her current
parking space and is under a lot of anxiety because of this. P1 also states that Complainant is sleep
deprived due to spending lots of time finding a parking spot.

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On June 1, 2015, S1 issued a Memorandum for the Record on Request for Reasonable
Accommodation for Parking for [Complainant] which noted the following conclusions:

[Complainant’s] request for reasonable accommodation is satisfied through the
issuance of the parking placard for use in contracted Network 23 Contracting office
garage. The facility has eight handicap parking spaces and is handicap accessible
by ramp and elevator. This facility meets the requirement to provide handicap
parking.

There are no other spaces that are available for use at the [T]hresher building
because they are currently being occupied by SAO Central. Contracting additional
parking spaces at the [T]hresher building would pose a financial hardship to the
organization. Although there are two guest parking spaces that belong to Network
23 Contracting Office, these spots are reserved for guests. These parking spots are
utilized on a weekly basis and must be kept available for their intended purpose.
However, one of the spots can be utilized on an as-needed basis with 24-hour prior
notification to [COR] as the COR for Network 23 Contracting Office Minneapolis
Leasing.

In addition, metered parking behind the building on Washington Ave was available
and seemed to be a viable option also. There is a parking lot between the [T]hresher
building and Washington Ave and a ramp from the street to the parking lot on
Washington Ave.

Documentary evidence shows that on June 3, 2016, the Agency offered Complainant full-time
telework for a trial period of two months. The record also contains a June 12, 2015 letter from P1
stating the following in relevant part:

[Complainant] has a history of posttraumatic stress disorder as well
as depression with anxiety and panic attacks. This is my repeated
request as her physician to give her parking on site. She has
rheumatoid arthritis as well as underlying psychiatric problems.
There is a parking ramp with handicap parking that is available for
her to use along with parking on the street, but both of these
locations will not work for her due to the distance and her inability
to walk that far. I'm very concerned about her overall health is
affected by this stressful situation at work is making her depression
and anxiety worse, which in turn affects her other medical
conditions including diabetes and hypertension. I'm requesting that
she gets on-site parking. [sic]

Documentary evidence in the record shows that the Agency notified Complainant that it agreed to
grant her an “Interim Accommodation” by August 7, 2015 as follows:

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[Complainant] will be permitted to park in a spot controlled by SAO central
pending availability of an open spot. [Complainant] will be required to coordinate
this through [W1] . . . 24 hours in advance. If no spot is available through SAO
Central, [Complainant] will coordinate use of one of the NCO 23 parking spaces
24 hours in advance through [the Contract Officer Representative (COR)]. The
[reasonable accommodation counsel (LRAC)] also requires clarification regarding
your functional limitations which was sent to you on 7/22/15. Please send medical
to LRAC by 10/2/2015.

S1 testifies that she took part in an interactive process with Complainant and offered alternative
accommodations that she felt would have been effective. Specifically, S1 states that the service
did not control parking spots at the facility. S1 states that Complainant was issued a parking
placard for use at the closest parking controlled by NCO 23 which was approximately one block
away and allowed her to use the handicapped parking at this parking area. S1 further asserts that
she authorized Complainant to use the guest parking offered at the facility, with the condition that
she coordinate arrangements with the Contracting Officer Representative (i.e., COR), who
controlled the spots. Complainant states that she accepted this accommodation for a while then
requested another accommodation regarding parking. S1 also states that she eventually authorized
Complainant to work from home full-time which would have alleviated the need for a parking
space. S1 notes that Complainant did not accept the alternative accommodation offered.

The Veterans Health Administration (VHA) Service Area Office (SAO) Central Region Chief
(W1) (EEO activity, White, American, 49 years old, female) is a supervisor in the regional office
located in the same office building as NCO 23. W1 is not in Complainant’s chain of command
but knows Complainant because she helped address Complainant’s parking issue. W1 states that
it was her understanding that Complainant was denied a handicapped parking space by NCO 23
management. W1 also states that Complainant spoke to her about the unavailability of parking
and asked if she could use one of the parking spaces that were provided for W1’s VHA SAO
Central Region staff at the facility. W1 states that she had ten parking spaces that were assigned
to her office and that due to telework schedules, there was usually one space available each day.
W1 also states that Complainant explained her disability situation and showed her handicapped
parking sticker. Accordingly, W1 allowed Complainant to park in one of the VHA SAO Central
Region spaces, so long as the spot was available. W1 further states that she does believe that
Complainant was treated unfairly in this regard because she saw others permitted to use the spaces
for NCO 23, who did not have handicapped stickers. In addition, W1 states that S1 even tried to
tell her that she could not give a parking space to Complainant. W1 asserts that she told S1 that
she was not her supervisor, the spaces belonged to VHA SAO Central Region, and she could do
with them as she wanted.

A Licensed Practical Nurse (W2) (EEO activity, White, American, no disability, age 62, female)
who was also the Union President at the time, states that she participated in several meetings with
S1 and Complainant to resolve the parking issue. W2 states that she does not understand why S1
would not give Complainant a parking space closer to the Thresher building, other than to make it
hard for her.
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W2 also states that Complainant had to speak with another staff supervisor and this supervisor
worked it out so that she could park in one of the staff parking spots. In addition, W2 states that
she witnessed in meetings that S1 was at first supportive of trying to find parking for Complainant
but seemed to become angry when Complainant obtained help from another supervisor.

Telework from the VA Hospital – Claim 14

Complainant asserts that due to the trauma and stress caused by working in a hostile work
environment and the lack of accessible handicapped parking at her location, she requested a
reasonable accommodation to be able to telework from a nearby Veterans’ Affairs (VA) hospital.
Complainant states that S1 denied the telework request. Complainant further states that the reason
given for the denial was that there were forklifts working in the area that she would be working.
Complainant states that she never saw any forklift and other employees worked in the area.
Complainant asserts that S1 did offer an alternative accommodation to allow Complainant to
telework from her home full-time. Complainant stated that this was unacceptable because her
doctor felt that Complainant needed to work around other employees in case she needed medical
attention.

The record contains a June 20, 2016, letter from Complainant’s physician (P2) stating the
following:

[Complainant] is a patient at this clinic. She has experienced a lot
of stress trauma in her workplace that make it difficult for her to
perform at optimal level. There is also a lack of handicapped
parking space near her office. Although she has a disability parking
permit, she does not get to use it. [Complainant] has several health
issues that make it difficult to work from home. In my opinion, it
may be beneficial for her to tele-work from the VA hospital. This
would put her in a controlled safe work environment should she need
any medical attention. The hospital also has handicapped parking
areas, so she would not have to ambulate too far to get into her
workplace. A transfer for work at the hospital would be a good work
option if it is at all possible.

The record shows that on July 14, 2016, the Agency denied Complainant’s request to telework
stating that “[l]ong term space is not available at the medical center on a permanent basis.” The
Agency also noted that cubicles at the medical center “are in high traffic area where forklifts are
traveling through.” However, at that same date, the Agency offered Complainant the alternative
of working from home full-time.

S1 testifies that she took part in an interactive process with Complainant and offered alternative
accommodations that she felt would be effective. S1 explains that the initial request was denied
because after she viewed the facility, she found that there was no long-term permanent office space
available.
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S1 also notes that the cubicle areas were in a warehouse area which had high traffic and forklifts
traveling through. S1 asserts that she eventually authorized Complainant to work from home full-
time instead which would have alleviated the need for all of Complainant’s accommodation
requests.

Job Coach - Claim 22

Complainant states that the State of Minnesota Health Vocational Rehab offered her a job coach
because of her disabilities (i.e., PTSD and other issues), who would have come in and helped her
perform her job effectively. Complainant states that S1 notified her that she had denied this request
because the office had confidential information. S1 states that the job coach request was not denied
but because of sensitive information at the facility, Complainant was told that she would have had
to meet the coach in the common areas of the facility. S1 notes that Complainant rejected this
alternative. S1 further notes that she authorized Complainant to work from home full-time which
she asserts alleviated the need for all of Complainant’s accommodation requests.

U1 asserts that she believes that Complainant was subjected to a hostile work environment and
treated unfairly because of her disability. She asserts that Complainant was asked several times to
provide doctors notes which she did, yet her requests were denied by management.

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”).

Job-Related Conduct – Claims 1, 3, 6, 10, 20, 24, & 26

To prevail in a disparate-treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that she was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the
facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981).

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Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a
preponderance of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The Commission generally applies the McDonnell Douglas framework to prove discrimination in
cases alleging harm by a federal government employer under the ADEA. See Spencer v. U.S.
Postal Serv., EEOC Appeal No. 0120042065 (Aug. 6, 2003) (applying framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to ADEA claim); Carver v. Dep't of
Justice, EEOC Appeal No. 07A30025 (Aug. 8, 2005) (same); Jones v. Bernanke (Federal Reserve
System), 557 F.3d 670, 673 (D.C. Cir. 2009) (explaining in federal sector ADEA retaliation claim
that “[w]hether brought under Title VII or the ADEA, ...claims based on circumstantial
evidence . . . trigger the familiar burden-shifting framework of McDonnell Douglas”).
Specifically, the first step of the McDonnell Douglas burden-shifting framework requires a
complainant to establish a prima facie case of age discrimination. To do so, the complainant
generally must raise an inference of discrimination by showing: (1) she was 40 years of age or
older; (2) she was subjected to an adverse employment action; (3) she was qualified for the job;
and (4) there is some reason to infer that the action was related to age, such as ageist statements
showing bias by the decision maker, or evidence that she was replaced by someone substantially
younger or otherwise was treated less favorably than someone substantially younger.

To establish a disability claim, Complainant must first establish that she is a “qualified individual
with a disability” within the meaning of the Rehabilitation Act. The Rehabilitation Act's
implementing regulation states that an “individual with a disability” is one who has a physical or
mental impairment which substantially limits one or more of such person's major life activities,
has a record of such an impairment, or is regarded as having such an impairment. “Major life
activities” are functions, such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. §1614.203(a)(3).6

The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1931). In this
McDonnell Douglas analysis, the Supreme Court has long recognized that after the employer
establishes a legitimate nondiscriminatory motive, the plaintiff/complainant “must be afforded ‘an
opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons but were a pretext for discrimination.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to
private sector ADEA claim) (quoting Burdine, 450 U.S. 243, 253).

Assuming, without deciding, that Complainant has established a prima facie case on each basis,
we find that the Agency articulated legitimate, nondiscriminatory reasons for each claim.

6 We note that the events in this case arose after January 1, 2009, the effective date of the American
with Disability Act (ADA) Amendment Act of 2008, which made significant changes to the
definition of disability under the ADA and the Rehabilitation Act.
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With respect to Complainant’s claim that she was unfairly denied overtime (Claims 1, 20 and 26),
the record shows that S1 concluded that Complainant was requesting overtime for tasks, which in
her opinion, could have been completed during Complainant’s regular tour of duty. We find that
the record does not establish that S1’s explanation was a pretext or otherwise motivated by
discriminatory or retaliatory animus.

The record shows that S1 issued the letters of counseling (Claims 3 and 24) and the mid-term
review (Claim 6) to notify Complainant that her performance was not satisfactory due to failures
to meet deadlines, follow instructions, and engage in professional and courteous communication
with her supervisor. In response, Complainant generally asserts that S1 failed to provide her with
sufficient instruction or consider her absence from the office and disabilities (e.g., PTSD) when
assigning tasks and deadlines. However, aside from Complainant’s vague uncorroborated
statements, the record is devoid of evidence to support her assertions. Accordingly, we find that
the record does not establish that S1’s explanation was a pretext or otherwise motivated by
discriminatory or retaliatory animus.

With respect to the AWOL charge (Claim 10), S1 states that she explained to Complainant that
her attempt to evoke FMLA leave on April 25, 2016, was not permitted because she had exceeded
her 480 hours of leave for the year and was needed at work. The record shows that Complainant
did not refute S1’s assertion regarding the amount of unpaid leave she had accumulated.7 In
addition, we do not find evidence in the record to support the assertion that S1’s denial of leave
was motivated by discriminatory or retaliatory animus.

The undisputed record also establishes that management provided Complainant with a heater.
There is insufficient evidence in the record to conclude that a policy existed where employees were
entitled to heaters provided by the Agency. We also find insufficient evidence to establish that
S1 was motivated by discriminatory or retaliatory animus when she initially denied Complainant
a heater.

The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons
and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established that
she was subjected to discrimination or reprisal as to these claims.

Harassment – Claims 1-26

Harassment of an employee that would not occur but for the employee's race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive.

7 The documentary evidence shows that between March 1, 2016 June 17, 2016, Complainant had
used nine hours of annual leave, 27 hours of sick leave and 200 hours of leave without pay.

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To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on a statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the
incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's]
employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993).

Complainant has not shown that she was subjected to a hostile work environment based on her
protected classes. The Commission notes that Commission’s anti-discrimination statutes are not
a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. For example, S1 categorically denies
that she ever yelled at Complainant (Claim 4); excluded her from an office email (Claim 9);
regularly ignored her emails (Claim 12); sent her harassing emails and held her to a higher standard
than that of her coworkers (Claim 16); stood in her doorway and blocked her exit (Claim 17);
divulged her private medical information (Claim 19); was short and abrupt with her during a
training session (Claim 21); or passed her and glared at her (Claim 23). Moreover, we find that
Complainant fails to provide evidence to refute S1's testimony, or to corroborate her own
allegations with respect to these claims. Complainant's harassment allegation also includes her
dissatisfaction with management's job-related conduct outlined herein above (i.e. Claim 1, 5, 6,
10, 11, 20, 24 and 26). As set forth above, the record does not support a finding that the job-related
conduct was motivated by discriminatory or retaliatory animus8 on the part of the responsible
management official. Accordingly, we find that the record does not support a finding of
harassment as alleged.

REMANDED CLAIMS

We find that the record pertaining to the alleged disclosure of Complainant’s confidential medical
information and Complainant’s requests for reasonable accommodation is inadequate and must be
remanded for a supplemental investigation because we cannot assess the merits of these claims
due to the unexplained lack of evidence in the record as set forth below.

8 While W1 believes that S1 was motivated by retaliatory animus when S1 denied Complainant an
on-site parking spot (discussed below), she fails to provide a basis for this bare assertion.
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Agencies are required to develop an impartial and complete factual record. EEOC Regulation 29
C.F.R. § 1614.108(b); See also, Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (MD-110), Ch. 6, § I (Aug. 5, 2015). An appropriate factual record is one that
allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An
investigator must be thorough. “This means identifying and obtaining all relevant evidence from
all sources regardless of how it may affect the outcome.” Id. at § V.D. “To ensure a balanced
record, it is necessary only to exhaust those sources likely to support the complainant and the
respondent. An investigation conducted in this manner might reveal that there is ample evidence
to support the complainant's claims and no evidence to support the agency's version of the facts,
or vice versa. The best type of investigation allows for complainant to provide rebuttal evidence
with sufficient time for the investigator to address any issues raised within the regulatory time
frames.” Id.
Disclosure of Confidential Medical Information – Claim 19

The Agency is expected to keep an employee's medical information confidential. Specifically, 29
C.F.R. § 1630.14(c)(1) provides, in pertinent part, that “[i]nformation obtained... regarding the
medical condition or history of any employee shall ... be treated as a confidential medical record,
except that: (i) [s]upervisors and managers may be informed regarding necessary restrictions on
the work or duties of the employee and necessary accommodation.” By its terms, this requirement
applies to confidential medical information obtained from “any employee,” and is not limited to
individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132
(Apr. 13, 2000). Although not all medically-related information falls within this provision,
documentation or information of an individual's diagnosis is without question medical information
that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630.
See Hampton, supra; see also ADA Enforcement Guidance: Pre-employment Disability-Related
Questions and Medical Examinations (Oct. 10, 1995), at 22; EEOC Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) at 17 ¶ 15. See also
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the ADA (July 27, 2000). If the Agency discloses medical information
pertaining to Complainant in a manner that did not conform with this regulation, then its act of
dissemination would constitute a violation of the Rehabilitation Act.

Complainant asserts that on June 24, 2016, S1 posted that she and Complainant were going to have
a meeting to discuss Complainant’s reasonable accommodation request for a portable toilet on the
office Outlook calendar (which was accessible by the entire office). Complainant also states that
it was embarrassing to learn that C3 discussed this information with numerous people in the office.
Although S1 denies this allegation, the Outlook calendar’s posts for June 24, 2016 are not in the
record. In addition, the record does not contain C3’s testimony on this issue. Nor did the EEO
investigator question anyone else in the office to determine if the alleged posting occurred and
there is no explanation in the record for the failure to obtain this testimony. We are not able to
able to assess the merits of this claim and find the record inadequately developed given the
unexplained lack of evidence relevant to this claim. Accordingly, this claim shall be remanded as
set forth below.

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We note that a disclosure of a reasonable accommodation is not permitted under the Rehabilitation
Act because it usually amounts to a disclosure that an individual has a disability. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Notice No. 915.002, Question 42, fn. 111 (Oct. 17, 2002)
(Enforcement Guidance on Reasonable Accommodation). The fact that Complainant needs a
portable toilet as an accommodation implies certain types of medical restrictions rendering such
information confidential. See Salvatore B. v. U.S. Postal Ser’v, EEOC Appeal No. 0120180949
(June 13, 2019) (finding the Rehabilitation Act violated where management’s disclosure did not
reference a diagnosis or symptoms, but that the complainant had “medical restrictions” and was in
an OWCP-related position which is supposed to be kept confidential); see also Becki P. v. Dep’t
of Transportation, EEOC No. 0720180004 (Nov. 15, 2018) (while management did not disclose
any specific medical diagnosis or symptom, references to the complainant being “on medication”
as an explanation for the complainant's erratic behavior implies that the complainant has a
psychiatric condition and is a violation of the Rehabilitation Act). If the disclosure took place as
Complainant claims, it could be sufficient to constitute a violation of the Rehabilitation Act.
Reasonable Accommodation – Claims 2, 4, 7, 13, 14 and 22

Complainant also asserts that the Agency denied her reasonable accommodations in accordance
with the Rehabilitation Act. 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.

To establish that she was denied a reasonable accommodation. Complainant must show that: (1)
she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide
her with a reasonable accommodation. See 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).

A request for a modification (or change) at work because of a medical condition is a request for
reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at
Question 1. After receiving a request for reasonable accommodation, an agency “must make a
reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9.
Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the
individual with a disability . . . [to] identify the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable
Accommodation at Question 5. Reasonable accommodation includes such modifications or
adjustments as job restructuring, the acquisition or modification of equipment or devices, and
reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii); see also, Alan F. v U.S. Postal
Serv., EEOC Appeal No. 0120162635 (Feb. 22, 2018).
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When the need for accommodation is not obvious, an agency may require that the individual with
a disability provide documentation of the need for accommodation. 29 C.F.R. pt. 1630 app. §
1630.9. The agency may require only the documentation that is needed to establish that the
individual has a disability and that the disability necessitates reasonable accommodation.
Enforcement Guidance on Reasonable Accommodation at Question 6.

The Commission notes that a protected individual is entitled to a reasonable accommodation; she
is not necessarily entitled to the accommodation of choice. See Castaneda v. U.S. Postal Serv.,
EEOC Appeal No. 01931005 (Feb. 17, 1994). The employer may choose among reasonable
accommodations so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533
U.S. 391, 400 (2002). An employer should also respond expeditiously to a request for reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (revised Oct. 17, 2002) at question 10. If the
employer and the individual with a disability need to engage in an interactive process, this too
should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide
the reasonable accommodation. Id. Unnecessary delays can result in a violation of the ADA. Id.
In determining whether there has been an unnecessary delay in responding to a request for
reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the
length of the delay, (3) how much the individual with a disability and the employer each
contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the
required accommodation was simple or complex to provide. Id. at n. 38. Villanueva v. Dep't of
Homeland Sec., EEOC No. 01A34968 (Aug. 10, 2006).

Complainant asserts that the accommodations provided were either unreasonably delayed or the
Agency’s modifications to the accommodations she requested were not effective. We are not able
to assess the merits of Complainant’s claims due to the failure of the Agency to adequately develop
the record. The record indicates that the Agency follows a reasonable accommodation policy
implemented by a designated representative (i.e., LRAC). However, the record does not contain
testimony from LRAC9 or documentary evidence relevant to the interactive process.10

With respect to Complainant’s assertion that the Agency unreasonably delayed providing her with
a functional assessment, the undisputed record shows that Complainant requested the assessment
sometime in February 2016 and received the assessment on April 19, 2016.

9 The EEO investigator does not explain the reason for not obtaining this testimony.

10 In addition, while the Agency concludes that Complainant is a qualified individual with a
disability, within the meaning of the Rehabilitation Act, the record is not adequately developed
with respect to Complainant’s disabilities. We note that Complainant was not asked to produce
relevant medical records or sign a release of such records. Accordingly, on remand the Agency
shall develop the record with respect to all aspects of Complainant’s reasonable accommodation
claims, including obtaining information as to whether Complainant is an individual with a
disability, within the meaning of the Rehabilitation Act.

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However, the Agency does not provide any explanation for the length in time between the request
and the implementation of the accommodation. Accordingly, we cannot assess the reasonableness
of the response-time without additional information that should be in the Agency’s possession or
under the Agency’s control.11

With respect to Complainant’s assertion that the Agency unreasonably delayed providing her with
a replacement headset, the record does not provide the exact dates as to when Complainant
requested the accommodation or when she received it. The record contains an email dated May
24, 2016, from S1 to Complainant (with carbon copy to LRAC) which forwards the Agency’s
Reasonable Accommodation Determination (RAD). The RAD notes that Complainant’s request
is granted as of May 24, 2016. However, the record is not clear if Complainant received her
headset on this date. In addition, nothing in the record explains why Complainant was required
to go through the process of requesting an accommodation a second time after she had previously
been granted a headset as a reasonable accommodation, when she was only seeking a replacement
because it stopped working. While S1 testifies that the headset was on back order, the record is
unclear as to whether there was an unnecessary delay.

Regarding the request for a flexible schedule, an on-site handicap parking space, to telework at a
nearby VA hospital, and to bring a personal job coach to work, we find that the record lacks
information as to whether the alternative accommodations offered by the Agency were an effective
alternative, and if not, whether Complainant is entitled to the accommodations she requested. If
the Agency engaged in the interactive process as S1 asserts, there should be documentary evidence
in the Agency’s records reflective of this, yet such information is not in the record before us.

With respect to the flexible schedule request, the record contains an undated RAD denying the
request but offering FMLA (which Complainant claims was exhausted) or regular leave in
accordance with Agency regulations. In addition, the record contains an email dated July 6, 2016,
from S1 to Complainant (with carbon copy to LRAC) forwarding the Agency’s RAD pertaining
to Complainant’s flexible schedule denying Complainant’s request but offering an alternative of
15 minutes flexibility on either side of her arrival. The record also contains two letters from
Complainant’s physician as set forth above dated May 21, 2015 and June 12, 2015 in support of
her requested accommodation. The Agency does not provide documentary or testimonial evidence
of the exact date, and manner, in which Complainant requested this accommodation. The Agency
also fails to produce evidence to determine if Complainant had in fact exhausted her FMLA leave
at the time of this request.

11 The record contains a letter from Complainant’s physician dated March 8, 2016 noting that
Complainant has been diagnosed with bilateral carpal tunnel syndrome, recommending that she
have an ergonomic assessment/functional capacity evaluation performed to identify any
accommodations that will assist in preventing further aggravation of or possible surgery to her
carpal tunnel. There is no other documentary or testimonial evidence to explain when and how
Complainant first requested this accommodation or whether any interactive process occurred
leading up to the completion of the assessment in late April 2016.
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In addition, as noted above, if the Agency engaged in the interactive process to find alternative
accommodations, as S1 asserts, there should be documentary evidence in the Agency’s records
reflective of this, yet such information is not in the record before us.

With respect to Complainant’s on-site handicap parking request, the record contains a
Memorandum for Record on Request for Reasonable Accommodation for Parking for
Complainant dated June 1, 2015 from S1. In addition, the record contains an undated RAD
indicating that Complainant was provided temporary on-site parking but noting that the Agency
also requested that Complainant provide additional medical information by October 2, 2015.
However, nothing in record explains what additional information the Agency was seeking.
Notably, the record does not contain the functional limitations document which the RAD notes
was sent to Complainant on July 22, 2015 or her response to such document. It appears from the
record that Complainant was provided on-site handicap parking to some degree. However, it is
not clear from the record to what extent on-site parking was provided. Lastly, it is unclear whether
the eventual alternative accommodation granted by the Agency (i.e. full-time telework from home)
was accepted or effective.

Regarding the request to telework from a nearby VA Hospital, the record contains a letter from
Complainant’s physician dated June 20, 2016 recommending this accommodation. The record
also contains an email dated July 14, 2016, from S1 to Complainant (with carbon copy to LRAC)
forwarding the Agency’s RAD denying her request but permitting Complainant to work from
home full-time. S1 claims that the option to work from the VA Hospital was not feasible. Yet,
the record does not contain documentary or testimonial evidence to support S1’s assertion. Again,
if the Agency engaged in the interactive process as S1 asserts, there should be documentary
evidence in the record to reflect this beyond S1’s limited explanation.

With respect to Complainant’s job coach request,12 the record contains a June 3, 2016 RAD
permitting Complainant to work from home full-time on a trial basis. S1 asserts that she did not
deny Complainant the use of a job coach, but that she could only use the coach in the common
areas due to the confidential information in the office that needed to be protected. S1 does not
explain what confidential information she is referring to or whether she or LRAC considered
alternative solutions that could have permitted the job coach to move freely with Complainant. S1
states that the decision to have Complainant telework from home was an effective alternative to
this accommodation and many of the other requests. However, the Agency failed to explain how
requiring Complainant to tele-work full-time from home, against her physician’s advice, was an
effective accommodation. As in each accommodation request above, there are no documents in
the record directly from the reasonable accommodation coordinator. Additionally, there is nothing
in the record to indicate whether an interactive process took place between the Agency and
Complainant to determine whether full-time telework was an effective reasonable accommodation.

12 This accommodation request also included additional requests that are not part of this complaint
and will not be discussed herein.

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CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM in part and VACATE and REMAND in part
this matter for a supplemental investigation, consistent with our decision and the ORDER below.

ORDER TO SUPPLEMENT RECORD (B0617)

Within one-hundred and twenty (120) calendar days of receipt of this Order, the Agency shall
conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R.
§ 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this decision. The supplemental
investigation shall include, but is not limited to, the following:

(1) a detailed statement13 by Complainant: (a) clarifying how each medical condition relevant
to her requests for accommodation rises to the level of a disability in accordance with the
provisions of the Rehabilitation Act;14 (b) explaining how each accommodation denied by
the Agency would have been effective in accommodating her disability by assisting her in
performing the essential functions of the Procurement Technician position; (c) explaining
how each alternative accommodation granted by the Agency failed to assist her in
performing the essential functions of her position;

(2) a detailed statement from LRAC: (a) describing the Agency’s policy with respect to
reasonable accommodation requests; (b) describing each step taken in processing
Complainant’s accommodation requests, engaging in an interactive process, and any other
relevant information that is available to him as the reasonable accommodation
coordinator;15 (c) explaining the process that was used to determine that the alternative
accommodations offered/granted to Complainant effectively accommodated
Complainant’s disability allowing her to perform the essential functions of her position;
and (d) explaining why Complainant had to request a headset for a second time through
the reasonable accommodation process and how long this requirement added to the
process;

13 All statements ordered herein shall be made under penalty of perjury.

14 The EEO investigator shall guide Complainant through his/her questioning as to the information
necessary to provide complete answers responsive to this Order.
15 Included in this statement should be a timeline documenting what took place during the
interactive process beginning with the date the first request for accommodation was made, each
step taken during the process of determining whether and what accommodation Complainant was
entitled to, and the date the accommodation was implemented or officially rejected.

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(3) a statement from S1: (a) describing each step taken in processing Complainant’s
accommodation requests, engaging in an interactive process, and any other relevant
information that is available to her as Complainant’s supervisor;16 (b) explaining the
process that was used to determine that the alternative accommodations offered/granted to
Complainant effectively accommodated Complainant’s disability allowing her to perform
the essential functions of her position; and (d) explaining why Complainant had to request
a headset for a second time through the reasonable accommodation process and how long
this requirement added to the process;

(4) a detailed statement from C3 (and anyone else with knowledge) regarding the alleged June
24, 2016 Outlook calendar posting noting the alleged meeting scheduled between S1 and
Complainant to discuss Complainant’s request for a portable toilet as a reasonable
accommodation and a copy of the of the Outlook Calendar for June 24, 2016;

(5) a statement by a VA Hospital employee(s) relevant to the telework accommodation claim
and S1’s assertion that the VA Hospital had no long-term permanent office space available
and that the cubicle areas in the warehouse area were unsafe for Complainant;

(6) documentary evidence,17 including notes, email, or other material that is in written form,
with respect to each accommodation request: (a) that pertains to any communications with
anyone, including Complainant, regarding her physical or mental impairments; (b) any
communications with anyone, including Complainant, regarding accommodation requests
and efforts to accommodate Complainant; and (c) any communications with anyone,
including Complainant, regarding Complainant struggling to perform her duties because
of a physical or mental impairment;

(7) medical documentation pertaining to Complainant that identifies: (a) each physical or
mental impairment/medical condition; (b) the extent of Complainant’s physical and/or
mental limitations; and (c) a description and explanation of any potential accommodation;

(8) documentary evidence to support S1’s assertion that the VA Hospital had no long-term
permanent office space available and that the cubicle areas in the warehouse area were
unsafe for Complainant;

(9) the Agency’s reasonable accommodation policy; and

16 Included in this statement should be a timeline documenting what took place during the
interactive process beginning with the date the first request for accommodation was made, each
step taken during the process of determining whether and what accommodation Complainant was
entitled to, and the date the accommodation was implemented or officially rejected.

17 Documentary evidence includes, but is not limited to, materials created or utilized by S1 and
LRAC, whether in hard copy or in digital form.
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(10) a rebuttal statement from Complainant after having thirty (30) calendar days to review the
completed supplemental investigation.

The Agency shall issue to Complainant a copy of the supplemental investigative file and shall
notify Complainant in writing of her right to request a hearing before a Commission AJ or the
issuance of an Agency decision, unless the matter is otherwise resolved. If Complainant requests
an Agency decision without a hearing, the Agency shall issue its decision within sixty (60) days
of receipt of Complainant’s request.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case to comply with the time frames contained in this Order. The Office of Federal
Operations will issue sanctions against agencies when it determines that agencies are not making
reasonable efforts to comply with a Commission order to investigate a complaint.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the directed action has been taken.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint.
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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 on both that portion of your
complaint which the Commission has affirmed and that portion of the complaint which has been
remanded for continued administrative processing. In the alternative, you may file a civil action
after one hundred and eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency issues its final
decision on your complaint. 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 10, 2019
Date