U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Madeleine C.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181168
Agency No. 200I-0316-2014102540
DECISION
On February 7, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 27, 2017 final decision concerning an equal employment opportunity
(EEO) complaint claiming employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Loan Technician at the Agency’s Veterans
Benefits Administration (VBA), VA Regional Office in Decatur, Georgia.
On May 16, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on disability when:
a. on March 20, 2014 and April 16, 2014, her supervisor did not approve her request for
Leave Without Pay (LWOP) and instead, she was charged Absent Without Official
Leave (AWOL);
b. as of March 20, 2014, management had not approved her requested reasonable
accommodation;
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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c. on April 17, 2014, the Human Resources (HR) Specialist Liaison violated Health
Insurance Portability and Accountability (HIPPA) protocol when she released
Complainant’s medical information to the Loan Guaranty Officer;
d. as of April 14, 2014, management did not inform her of the leave donor program;
e. on June 9, 2014, she became aware that her request for a hardship transfer was
denied; and
f. on June 16, 2014, she became aware that management intentionally gave her the
wrong form to file her worker’s compensation claim.2
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on
December 27, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment: Claims a, c, d, e and f
A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
Complainant has worked as a Loan Technician for the Agency from August 2012 until October
28, 2013. The Loan Guaranty Officer became Complainant’s immediate supervisor in
September 2013 and shortly afterwards, Complainant left the office.
2 The record reflects that claims e and f were later amended to the instant formal complaint.
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In claim a, Complainant claimed that on March 20, 2014 and April 16, 2014, her supervisor did
not approve her request for LWOP, instead she was charged AWOL.
The record reflects that Complainant invoked Family Medical Leave Act (FMLA) to begin on
December 30, 2013, and the request was approved for twelve (12) weeks. Complainant’s FMLA
was set to expire on March 21, 2014, and she was advised to return to duty on March 24, 2014.
On March 20, 2014, Complainant requested 178 hours of additional LWOP.
The Loan Guaranty Officer (“Officer”) (disability) explained that he did not approve
Complainant’s LWOP request because at the Atlanta Regional Office, supervisors “at my level
do not/did not have the authority to approve LWOP request.” As Complainant’s supervisor, he
provided instructions to the timekeeper on how to code Complainant’s absence and he signed the
letter notifying her of the AWOL status.
The Officer stated that on March 21, 2014, the Acting Loan Guaranty Officer sent a letter to
Complainant stating “we have satisfied our requirement to approve leave under The Family and
Medical Leave Act (FMLA), and your FMLA has been utilized for 480 hours and expired March
21, 2014. Therefore your request for 178 hours of LWOP is disapproved.”
Complainant was advised that if she did not return to duty on March 24, 2014, further
disciplinary action could be taken and a letter was sent to her on April 14, 2014, notifying her
that she was on AWOL status.
In claim c, Complainant asserted that on April 17, 2014, the Human Resources (HR) Specialist
violated HIPPA protocol when she released Complainant’s medical information to the Officer.
The HR Specialist (disability) denied violating HIPPA protocol when she released
Complainant’s medical information to the Officer. The HR Specialist explained that
Complainant submitted several requests for FMLA directly to the Loan Guaranty Management,
(including the Officer) and she included medical information in which her medical provider
included her disabilities. The HR Specialist stated at that time, Complainant had filed a Workers
Compensation claim, which contained medical information, through the Department of Labor
(DOL)’s Office of Workers’ Compensation Program. The HR Specialist noted a portion of the
Worker’s Compensation form “had to be completed by Complainant’s supervisor and submitted
to HR for them to forward it to the DOL, the Loan Guaranty Officer had knowledge of her
medical documentation.”
Further, the HR Specialist stated that Complainant “had already shared all of that information
with loan guaranty managers. So, my understanding, [is that] they were already aware. And, so,
no, I did not violate HIPAA. I did work with [Officer] in trying to come up with a reasonable
accommodation based on the functional limitations that her doctor provided. But this was the
information that she had already shared with them.”
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In claim d, Complainant alleged that as of April 14, 2014, management did not inform her of the
leave donor program.
The HR Specialist asserted that Complainant was informed about the Leave Donor Program
during the new employee orientation that was conducted on August 13, 2012. Specifically, the
HR Specialist stated that during the new employee orientation “which was not that many months
prior, or maybe a year or half of a year before these things started, [Complainant] went through
orientation and she certified on a form that we covered – we gave her a copy of the leave
donation program policy for the Atlanta regional office and she signed indicating that she
received that information and understood it.”
In claim e, Complainant alleged that on June 9, 2014, she became aware that her request for a
hardship transfer was denied.
The HR Specialist explained after Complainant inquired about the procedures for requesting a
transfer to another office, the HR Specialist provided her with the VBA policy that outlines the
procedures. The HR Specialist stated the “process involves the director of the facility notifying
the director of the proposed facility or the facility where the employee is wanting to move to, and
make them aware that the employee has requested a hardship transfer. And the gaining facility
would indicate if their staffing levels will allow them to do any additional hiring.”
Further, the HR Specialist stated that the final approving authority for hardship transfers is the
Central Area (CAREA) director, because the Houston facility falls under CAREA. The HR
Specialist stated that the Atlanta facility director recommended approval to the Southern Area
Director but the CAREA direct denied Complainant’s request due to staffing levels in the
Houston Regional Officer.
In claim f, Complainant asserted that on June 16, 2014, she became aware that management
intentionally gave her the wrong form to file her worker’s compensation claim.
The HR Specialist denied that Complainant was intentionally given the incorrect form. The HR
Specialist stated at that time, Complainant indicated that she suffered a traumatic injury on
October 11, 2013, which was during the furlough. The HR Specialist noted that as a result, HR
provided Complainant a CA-1 form, which is for injuries that occur on a specific day. She noted
that this is the form that was submitted to DOL. The HR stated “it is our normal protocol to
provide a CA-1 to any employee who indicates they’ve been injured.”
The HR Specialist further stated that a form CA-2 is for occupational injuries encountered on the
job. The HR Specialist stated that she was not was not aware of this issue until Complainant
filed the instant complaint. She stated that Complainant was given the CA-1 form after
indicating that she had suffered an injury and that the form was provided to her, as it would have
been provided to any employee who indicated the same.
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Reasonable Accommodation: Claim b
Under the Commission’s regulations, an agency is required to make reasonable accommodations
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. A request for a modification, or change, at work because of a medical
condition is a request for reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC Notice No. 915.002, Question 1 (Oct. 17, 2002) (Enforcement Guidance on Reasonable
Accommodation).
After receiving a request for reasonable accommodation, an agency “must make a reasonable
effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, 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 modification or
adjustments as job restricting, the acquisition or modification of equipment or devices, and
reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii).
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.
§ 1630.09. 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 record reflects that Complainant explained that her disabilities are Post-Trauma Stress
Disorder (PTSD) and migraine headaches. She indicated that her disabilities cause anxiety,
depression, and panic attacks which affect her concentration, ability to drive, and commute to
and from work. We presume for purposes of analysis only and without so finding, that
Complainant is an individual with a disability.
Complainant asserted that in February 2014, she requested reasonable accommodation.
However, the only documentation she submitted to Agency management were two letters from
her physician entitled “Excuse for Work or School.” The record reflects that neither of these
letters indicated that Complainant could not perform her essential functions as a Loan
Technician.
In claim b, Complainant asserted that as of March 20, 2014, management had not approved her
requested reasonable accommodation.
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The HR Specialist stated that Complainant’s physician sent a letter dated March 20, 2014, and
“we got it several days after that, somewhere after March 25th [2014], and her medical provider
indicated that she should be allowed to work from home.” The HR Specialist stated during the
relevant period, the Agency engaged in an interactive process and Complainant “was not
physically in this building because she was, as I indicated earlier, she had not returned to work
since October 11th. So, we were not in a position – we didn’t have a face-to-face conversation
with her because she was not here…but we had conversations with her, multiple conversations
with her, by email, by written letters.”
The HR Specialist stated that Complainant’s medical provider “had only given very limited
information about her functional limitations.” The HR Specialist noted that the medical provider
indicated that Complainant had concerns “with interactions with co-workers and that they [the
interactions] needed to be limited. And that was basically all he said. And he said, therefore, she
would prefer to work from home. However, we had offered an accommodation that we felt
would satisfy those requirements or those limitations that the doctor mentioned. We notified her
that the accommodation that the Agency was offering was to place her in a private office where
she would not have to interact with co-workers, but that she would be here where the equipment
was until were able to get a work at home program into place.”
Further, the HR Specialist explained that Complainant “never signed the form accepting or
denying. She never responded back indicating one way or the other. She just continued to say
that we hadn’t answered her questions. So, even though we sent the form indicating… this is the
accommodation we’re offer, she never said yes or no.”
The record contains a copy of the Officer’s letter dated April 17, 2014, concerning
Complainant’s reasonable accommodation request. Therein, the Officer noted that
Complainant’s medical provider “relates that interactions with co-workers causes work related
stress. Stress is not considered a disability. However, your medical provider indicated that your
medical condition of PTSD and migraines can be resolved with reduced interactions with your
co-workers.” The Officer stated that Agency management determined that Complainant’s work
space “would be moved to an area so that interactions with your co-workers will be reduced or
eliminated. It is our position that the provided accommodation should resolve the issue
identified by your medical provider and will enable you to perform the essential functions of
your position.”
At the time of Complainant’s request to work from home, the Atlanta Regional Office did not
have telework established for Loan Guaranty employees. Therefore, teleworking was not an
available accommodation. As an alternative accommodation, Complainant was offered to be
moved to a private office so that her interactions with co-workers would be reduced or
eliminated. The record reflects that the Agency was in the process of developing such a telework
program but at the time of Complainant’s request, it was not operational. Complainant denied
the alternative accommodation and did not attempt to try the alternative. She further proceeded
to indicate that the facility did not fill out the form correction and claimed that the facility was
denying her accommodation.
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Here, Complainant claimed that she was denied reasonable accommodation during the relevant
period. Substantial record evidence supports the Agency’s finding that Agency management
attempted to accommodate Complainant by offering her a private office so her interactions with
co-workers would be reduced, but lacked medical documentation that she needed to work full
time telework. There is no evidence of record to dispute this assertion. Complainant is entitled
to a reasonable accommodation, but not necessarily the accommodation of her choice. Here, the
evidence supports the Agency’s conclusion that Complainant was offered an effective
accommodation.
CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.
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.
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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.
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
July 10, 2019
Date