EEOC Appeal 2024001367

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Minh W.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2024001367
Agency No. 200P-904-2023-149121
DECISION
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
November 21, 2023, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an
Automotive Mechanic at the Agency’s National Cemetery in Santa Fe, New
Mexico.
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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On December 26, 2022, Complainant filed an EEO complaint alleging that the
Agency 	subjected 	him 	to 	a 	hostile 	work 	environment 	based 	on 	disability
(physical), and in reprisal for prior protected EEO activity,2 when:
1. 	since 	August 	12, 	2021, 	Complainant’s 	requested 	reasonable
accommodation was not provided;
2. 	on August 29, 2022, Complainant’s office was relocated to the break
room;
3. 	on 	September 	28, 	2022, 	Complainant’s 	proposed 	removal 	was
sustained, and he was notified of his pending removal, effective
October 29, 2022;
4. 	on or about October 13, 2022, Complainant was denied the use of
leave before his removal; and
5. 	on 	October 	28, 	2022, 	Complainant 	resigned 	in 	lieu 	of 	removal
(constructive discharge).
The Agency accepted claims 1-4 for investigation and noted that claim 5 was a
mixed-case claim.3 The Agency dismissed claims related to a 14-day suspension
based on Complainant’s grievance.4 Report of Investigation (ROI) at 26-9. At the
conclusion of the investigation, the Agency provided Complainant with a copy of
the 	ROI 	and 	notice 	of 	his 	right 	to 	request 	a 	hearing 	before 	an 	EEOC
Administrative Judge. In accordance with Complainant’s request, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Regarding the alleged failure to accommodate, the Agency found that Complainant
failed to engage or respond to attempts to communicate, and as such, it did not
2 Complainant’s non-legal representative requested the addition of reprisal as a
basis. Report of Investigation at 61-2. The Agency did not include reprisal in the
final decision, but we will consider reprisal as part of the instant appeal.
3 A mixed-case complaint is a complaint of employment discrimination filed with a
federal agency, related to or stemming from an action that can be appealed to the
Merit Systems Protection Board (MSPB). 29 C.F.R. § 1614.302(a)(1).
4 The Commission has the discretion to review only those issues specifically raised
in an appeal. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did
not contest the dismissals; as such, we will not address them in the instant decision.

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deny him an accommodation. For claim 4, the Agency bypassed a prima facie case
analysis because management officials provided a legitimate, nondiscriminatory
reason to deny Complainant’s request to use 500 hours of leave because he was
essentially asking the Agency to forgo his removal and permit him to remain
employed. Complainant did not show that the reasons were pretextual. The Agency
determined that Complainant did not establish harassment because there was no
evidence that the remaining issues were based on his protected class. The Agency
further found no constructive discharge because Complainant did not prove that he
was subjected to discriminatory conduct. The Agency concluded that Complainant
failed to prove discrimination as alleged. The final decision included appeal rights
to the Commission for claims 1-4, and to the Merit Systems Protection Board
(MSPB) for claim 5.
The 	instant 	appeal 	followed 	on 	December 	11, 	2023. 	The 	Agency 	opposes
Complainant’s appeal. Complainant filed a reply brief on July 1, 2024, and the
Agency moves to strike this pleading.5
The MSPB subsequently issued an Initial Decision for Complainant’s constructive
discharge claim and dismissed for lack of jurisdiction. Following a jurisdictional
hearing, an MSPB Administrative Judge (AJ) found that Complainant failed to
prove an involuntary resignation. The AJ noted that the proposed removal was
based on charges of failure to follow instructions and inappropriate conduct, with
several independent sources supporting Complainant’s removal. For example,
multiple coworkers attested to Complainant’s use of profanity, outbursts, and
sounds of him throwing things and banging furniture in his office. The AJ also
credited the Cemetery Director’s testimony that evidence supported the removal
action, including a prior 14-day suspension for similar conduct. The AJ determined
that Complainant’s testimony did not carry much evidentiary weight because it was
disjointed and conclusory. The AJ found that Complainant resigned in lieu of
termination and did not establish that the Agency knew it could not substantiate the
removal action. The AJ concluded that Complainant failed to prove coercive
involuntariness for his resignation.6
5 Complainant obtained an extension to file his appeal brief by January 31, 2024.
We will not consider Complainant’s second untimely submission.
6 There is no indication that Complainant filed a petition for review of the Initial
Decision before the MSPB or the Commission.

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STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), 	the 	Agency’s 	decision 	is 	subject 	to 	de 	novo 	review 	by 	the
Commission. 	29 	C.F.R. 	§ 1614.405(a). 	See 	Equal 	Employment 	Opportunity
Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5,
2015) 	(explaining 	that 	the 	de 	novo 	standard 	of 	review 	“requires 	that 	the
Commission 	examine 	the 	record 	without 	regard 	to 	the 	factual 	and 	legal
determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS
Reasonable Accommodation (Claim 1)
An agency is required to make reasonable accommodation to the known physical
and mental limitations of an individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o),
(p). 	In 	order 	to 	establish 	that 	he 	was 	denied 	a 	reasonable 	accommodation,
Complainant must show that: (1) he is an individual with a disability as defined by
29 C.F.R. § 1630.2(g); (2) he is a “qualified” as defined by 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement 	Guidance 	on 	Reasonable 	Accommodation 	and 	Undue 	Hardship
Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17,
2002) (Enforcement Guidance).
Assuming, for the purpose of analysis and without so finding, that Complainant is
an individual with a disability and qualified for his position, we find that the
Agency did not fail to accommodate him. The Reasonable Accommodation (RA)
Coordinator explained that Complainant made reasonable accommodation requests
in March 2021, November 2021, and August 2022. In March 2021, he requested
the relocation of a coffee pot because it triggered migraines, which was granted.
Complainant requested “consideration for difficulties with work performance,
emotional and cognitive skills” in November 2021. The request was closed due to
Complainant’s 	unresponsiveness 	to 	the 	interactive 	process. 	In 	August 	2022,

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Complainant asked to delay his office relocation until a permanent location was
completed 	in 	response 	to 	an 	office 	move 	(claim 	2, 	discussed 	below).
Complainant’s 	first-line 	supervisor 	(Supervisor) 	scheduled 	a 	meeting 	with
Complainant and the RA Coordinator to discuss the request. Complainant replied
that he was unable to secure help from the Union and unsure if the matter was
moot because his office had since been relocated. The RA Coordinator noted the
purpose of the meeting and agreed that the matter was moot, and he planned to
close out the request. Complainant did not respond. The RA Coordinator added
that Complainant’s medical documentation did not support his accommodation
requests from November 2021 or August 2022. ROI at 90-1, 97.
After receiving a request for reasonable accommodation, “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 Enforcement Guidance at Question 5. Here, the
Agency granted Complainant’s March 2021 request and initiated the interactive
process for his other requests. Complainant alleges that management “simply had
no interest in making any kind of accommodation.” Complainant Appeal Brief at
1. However, he offers no dispute to the RA Coordinator’s explanation that
Complainant 	was 	unresponsive 	when 	he 	did 	not 	continue 	engaging 	in 	the
interactive process or provide sufficient medical documentation to support his
requests. As such, we find that the Agency did not violate the Rehabilitation Act.
Disparate Treatment (Claims 2 and 4)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie
case by demonstrating that he/she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination. Furnco
Constr. Co. 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. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a
preponderance of the evidence, that the agency’s explanation is a pretext for

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discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, a prima facie case of discrimination and reprisal for claims 2
and 4, the Agency articulated legitimate, nondiscriminatory reasons for the actions.
For claim 2, the Cemetery Director explained that each supervisor needed an
office, and since Complainant was not a supervisor, his office was relocated
because it was needed for the Foreman. The Cemetery Director added that
Complainant was the only non-supervisory employee with a private office, which
was corroborated by the RA Coordinator. ROI at 76, 81, 91.
In response to claim 4, the Cemetery Director stated that Complainant’s request to
use annual and sick leave and resign in December was not appropriate because he
was requesting that the Agency forgo his removal. ROI at 78. The Chief of
Operations attested that Complainant’s use of hundreds of hours of leave in lieu of
termination 	would 	have 	negatively 	impacted 	operations 	because 	the 	Agency
needed to fill his position as early as possible because his duties were imperative to
day-to-day operations of the facility. ROI at 85.
Complainant did not show that the proffered reasons are not worthy of belief, and
his 	bare 	assertions 	that 	management 	officials 	discriminated 	against 	him 	are
insufficient to prove pretext or that their actions were discriminatory. Accordingly,
we find that Complainant did not establish discrimination or retaliation when his
office was relocated and his leave requests were denied.
Harassment (Claim 3)
In order to establish a prima facie case of harassment, Complainant must prove, by
a preponderance of the evidence, the existence of five elements: (1) that he is a
member of a statutorily protected class; (2) that he was subjected to unwelcome
conduct related to his protected class; (3) that the harassment complained of was
based on his protected class; (4) that the harassment had the purpose or effect of
unreasonably 	interfering 	with 	his 	work 	performance 	and/or 	creating 	an
intimidating, hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See Celine B. v. Dep’t of Navy, EEOC
Appeal No. 2019001961 (Sept. 21, 2020); Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998). See also Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982), approved in Meritor Savings Bank v. Vinson, 477 U.S.

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57, 66-67 (1986); see generally Flowers v. Southern Reg’l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In other words, to prove his hostile work environment claim, Complainant must
establish that he was subjected to conduct that was either so severe or so pervasive
that a “reasonable person” in Complainant’s position would have found the
conduct to be hostile or abusive. Complainant must also prove that the conduct was
taken because of a protected basis; in this case, his disability and prior protected
EEO activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.
The Supervisor averred that he proposed Complainant’s removal due to behavior
issues. ROI at 67. The proposal notice contained three (3) specifications of Failure
to Follow Instruction and two (2) specifications of Inappropriate Conduct. An
aggravating factor was a prior 14-day suspension for similar behavior. ROI at 199-
203. The Cemetery Director issued the decision to remove Complainant due to a
pattern of similar behavior. Complainant failed to follow instructions on multiple
occasions and engaged in inappropriate conduct by cursing and banging office
furniture. ROI at 77-8, 81, 205-6.
On 	appeal, 	Complainant 	asserts 	that 	the 	Supervisor’s 	“revised 	affidavit”
substantiates his claim that the Cemetery Director harassed Complainant to quit or
provoke him. Complainant Appeal Brief at 2. The MSPB AJ considered these
statements; for example, that the Supervisor was ordered to write Complainant’s
proposed removal or be on the “chopping block,” and that the Cemetery Director
used him to get Complainant. MSPB Initial Decision at 7. However, the AJ did not
find these statements persuasive based on the totality of the circumstances. While
the Supervisor stated that his original affidavit was not accurate, the AJ found that
Complainant’s proposed removal did not rest entirely on the Supervisor, and it was
supported by multiple detailed contemporaneous sources, in addition to several
witnesses’ credible testimony that was consistent with the record and contrary to
the Supervisor’s statements. The AJ observed that the Supervisor was not a
disinterested witness and resigned after a fact-finding accusing him of several
instances of misstatement of fact or perversion of truth. The AJ also highlighted
that the new statements were unsigned and unsworn, with no explanation for the
absence of signed statements, and lacked corroboration in the record. The AJ

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concluded that the probative weight of the Supervisor’s statement was diminished
by internal inconsistencies; inconsistencies with credible hearing testimony; the
timing of the statements long after the events; and an inherent bias of an about-
face, 	after 	resigning 	in 	the wake 	of 	an 	Agency 	investigation 	that 	seriously
questioned the Supervisor’s credibility. The AJ carefully considered the relevant
evidence and provided an extensive explanation for why the Supervisor’s “revised”
statements were not persuasive, and we agree with the AJ’s determination. As
such, we will not credit the Supervisor’s “revised” statements.
Further, the record contains other evidence to support the decision to terminate
Complainant’s 	employment. 	For 	example, 	multiple 	witness 	reports 	described
Complainant’s swearing; slamming of an object/equipment; yelling; throwing
things; banging on furniture; and “ranting and raving.” A Work Leader noted that
Complainant’s outbursts were “so frequent.” ROI at 160, 175, 177. Additional
witness statements confirm Complainant’s history of cursing and “flipping” people
off, 	including 	the 	Supervisor’s 	contemporaneous 	account 	of 	Complainant’s
outburst in front of visitors and employees, during which he said, “fuck this,” and
threw padlocks at the Supervisor’s feet. ROI at 299, 301, 308. The Work Leader
also emailed the Supervisor his concerns about replacing bald tires, which he
assigned as a “high priority” to Complainant on September 2, 2022, but it had not
been completed as of September 6, 2022. ROI at 170.
Complainant did not show that the removal decision was due to his protected
bases. Accordingly, we find that Complainant did not establish harassment based
on his disability, or in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that tend to establish that:

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1. 	The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
2. 	The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. If the party
requesting reconsideration elects to file a statement or brief in support of the
request, that statement or brief must be filed together with the request for
reconsideration. A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within which to submit a brief or
statement 	in 	opposition. 	See 	29 	C.F.R. 	§ 	1614.405; 	Equal 	Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at
Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street,
NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
Either party’s request and/or statement or brief in opposition must also include
proof of service on the other party, unless Complainant files their request via the
EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request 	for 	reconsideration 	as 	untimely, 	unless 	extenuating 	circumstances
prevented the timely filing of the request. Any supporting documentation must be
submitted together with the request for reconsideration. The Commission will
consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(f).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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:
T. Gimbrere
________________________ Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
9/21/2026
Date