2025003823•EEOC Appeal 2025003823
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Jerilyn R.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2025003823 Hearing No. 410-2024-00357X Agency No. 200I-557-2023-153974 INTERIM ORDER On August 4, 2025, 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 July 14, 2025, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission will order the instant appeal held in abeyance for supplementation of the record. 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.
2 2025003823 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS- 0620-6 Licensed Practical Nurse (LPN) in the Community Living Center (CLC) at the Agency’s Carl Vinson Veterans Affairs Medical Center in Dublin, Georgia. On August 30, 2023, Complainant initiated contact with an EEO counselor. On November 30, 2023, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. On or about February 1, 2023, management told Complainant to work as a nursing assistant. 2. On or about March 1, 2023, management asked Complainant to seek reasonable accommodation to “prove that she had medical restrictions,” or words to that effect. 3. From on or about March 1, 2023, and ongoing, management and/or facility personnel failed to provide and/or denied Complainant’s reasonable accommodation requests. 4. On September 14, 2023, management told Complainant it was her fault for not checking the schedule and it was Complainant’s responsibility to show up for work. Complainant identified her disability as back issues, including a history of compression fractures to her spine, a bulging/herniated disc, and fascia arthritis. In March 2023, Complainant requested reasonable accommodation for the following medical restrictions: avoid prolonged bending and sitting; and no lifting, pushing, or pulling over 20 pounds. Complainant provided medical documentation dated March 31, 2023, that stated: no lifting, pushing, or pulling over 20 pounds; and no prolonged bending, sitting, or standing. According to Complainant, she was able to successfully perform LPN duties, including passing out medications with a cart, and she could have stayed on the medication cart as an accommodation. During a May 11, 2023, interactive meeting, Complainant identified direct patient care as the essential function that was affected by her limitations. On May 18, 2023, the Nurse Manager (NM-1) informed Complainant that she could not be accommodated in her position, as she was expected to perform direct patient care. According to NM-1, even turning or lifting patients with assistance had a weight distribution of more than 20 pounds, and the medication cart and other assistive equipment, including the lifts,
3 2025003823 wheelchair, and recliner chair, all weighed more than 20 pounds. The functional statement for Complainant’s position stated, “The employee is involved in long periods of physical activity in the geriatric and dementia areas, including standing, bending, lifting, stooping, stretching and the pushing of beds, stretchers, wheelchairs and other equipment.” Report of Investigation (ROI) at 98. NM-1 informed Complainant that the Agency would conduct a search for positions to which she could be reassigned. On August 21, 2023, the Agency informed Complainant that the search concluded on August 17, 2023, and that it had not located a position to which she could be reassigned. Complainant alleged that she saw open LPN positions on USA Jobs in the Domiciliary, which was less physically demanding than the CLC. Complainant averred that she submitted an application for these positions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing before an AJ. The Agency submitted a motion for a decision without a hearing, and Complainant filed a response opposing the motion. The AJ granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency, finding no discrimination. The AJ assumed that Complainant was an individual with a disability. According to the AJ, Complainant did not genuinely dispute that patient care was an essential function of her position, and the Agency was not required to remove an essential function. The AJ found that Complainant did not identify any accommodations that would have effectively addressed her limitations, noting that Complainant did not dispute that turning or lifting a patient required lifting more than 20 pounds or that the medication cart and other equipment weighed more than 20 pounds. The AJ determined that the Agency made a good faith effort to reassign Complainant and that Complainant did not raise a genuine issue of material fact that there were vacant, funded positions to which she could have been reassigned. Noting that Complainant had the opportunity to engage in discovery and could have provided USA Jobs printouts showing there were LPN jobs in the Domiciliary, the AJ found that Complainant’s unsupported assertion that there were jobs that she could have performed was insufficient to create a genuine issue of material fact.
4 2025003823 The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues, among other things, that the question of whether the Domiciliary vacancies existed shows that the record requires further development regarding the Agency’s search efforts. According to Complainant, her sworn deposition testimony about the LPN positions in the Domiciliary was sufficient to establish a genuine issue of material fact. The Agency argues, in pertinent part, that its final order should be affirmed. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 Complainant alleges that she was denied a reasonable accommodation. The AJ assumed that Complainant was an individual with a disability. The next inquiry is whether Complainant is “qualified” with respect to the LPN position in the CLC.
5 2025003823 “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). The AJ determined that Complainant failed to establish a genuine issue of material fact that would show that she could perform the essential functions of her position of record, with or without accommodation. However, the discussion of “qualified” does not end at Complainant’s position of record. The term “position” is not limited to the position held by the employee but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). In the present case, we find that the record was not adequately developed with respect to the Agency’s search for a vacant, funded position to which it could have reassigned Complainant. See Anya F. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004218 (Oct. 30, 2023) (investigation did not reveal whether, and to what extent, the agency conducted a search for positions). On June 18, 2023, Complainant indicated that she was willing to consider reassignment to a position at her current facility or within the commuting area at her existing grade. The record contains a Reassignment Search Conclusion form dated August 21, 2023, notifying Complainant that the reassignment search concluded on August 17, 2023, and that the Agency was unable to find available positions that met her functional limitations, her job qualifications, and were within her requested reassignment options. As Complainant observes on appeal, there is no documentation of the Agency’s search efforts, and no witnesses or responsible management officials testified about the extent of the Agency’s job search. While the AJ suggested that it was Complainant’s burden to establish the existence of a vacant and funded position for which she was qualified, the Agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time. Because it possesses the relevant information, the Agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. See Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 16, 2016) (investigator must obtain relevant information
6 2025003823 about the availability of vacant, funded positions); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. The AJ found that Complainant did not establish a genuine issue of material fact that would show that there were vacant, funded positions to which she could be reassigned. However, Complainant testified under oath during her deposition that there were LPN positions in the facility’s Domiciliary posted to USA Jobs during the job search. Complainant also testified that she could have performed the essential functions of the LPN position in the Domiciliary because it was less physical, as the patients in that unit were able to walk on their own and that she provided her resume and cover letter to express interest in the positions in the Domiciliary. Although the AJ noted that Complainant had not provided USA Jobs printouts to prove the existence of these positions despite the opportunity to engage in discovery, we observe that Complainant’s deposition testimony regarding the vacant LPN positions was unrebutted. The record does not contain a copy of the job description for the LPN position in the Domiciliary or evidence regarding the essential functions and physical requirements for this position. Such evidence is necessary to determine whether there were vacant, funded LPN positions in the Domiciliary that Complainant could have performed, with or without reasonable accommodation. An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether a violation of the statute occurred. Here, there is insufficient evidence to determine whether Complainant was qualified under the meaning of the Rehabilitation Act. For these reasons, the Commission is unable to make a reasoned determination as to whether Complainant was a victim of unlawful discrimination. Further development of the record is required regarding the existence of vacant, funded LPN positions in the Domiciliary and whether Complainant could have performed the essential functions of any such position with or without reasonable accommodation. Accordingly, we will order the instant appeal to be held in abeyance for a targeted supplemental investigation, as set forth in the Order of the Commission, below.
7 2025003823 CONCLUSION Based on a thorough review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically referenced herein, the Commission ORDERS the instant appeal to be held in abeyance for supplementation of the record, as set forth in the Order below. ORDER Within sixty (60) calendar days of the date this Order is issued, the Agency shall conduct and complete a supplemental investigation that shall include, at a minimum, the following: 1. Documentary or testimonial evidence regarding the existence of vacant, funded LPN positions in the Domiciliary at the Carl Vinson Veterans Affairs Medical Center between February 1, 2023, and October 1, 2023. 2. A copy of the position description for the LPN position in the Domiciliary at the Carl Vinson Veterans Affairs Medical Center during the relevant time period. 3. Documentary or testimonial evidence regarding the essential functions and the physical requirements of the LPN position in the Domiciliary at the Carl Vinson Veterans Affairs Medical Center during the relevant time period. 4. Affidavits or other sworn evidence from Complainant and any relevant Agency official(s) regarding Complainant’s ability to perform the essential functions of the LPN position in the Domiciliary at the Carl Vinson Veterans Affairs Medical Center with or without reasonable accommodation given on her documented medical restrictions during the relevant time period. Upon completion of the supplemental investigation, the Agency must provide Complainant and her representative with a copy of the supplemental record and findings and submit the completed record to the Commission in a digital format via the Federal Sector EEO Portal (FedSEP) under the docket number for the current appeal, EEOC Appeal No. 2025003823. Within fifteen (15) calendar days of receipt of the supplemental record, Complainant may submit a statement concerning the supplemental record to the Commission. Complainant should submit her statement via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit her statement to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail
8 2025003823 addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. The statement shall reference the current appeal, EEOC Appeal No. 2025003823. Upon receipt by the Commission, the supplemental record will be included in the appeal file, and the appeal will be processed appropriately. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency shall send to the Commission via FedSEP under docket number EEOC Appeal No. 2025003823: (1) a copy of the Agency’s letter of acknowledgment to Complainant; and (2) a copy of the Agency’s notice that transmits the supplemental investigative file. 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 in order to comply with the time frames contained in this Order. The Office of Federal Sector 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. IMPLEMENTATION OF THE COMMISSION’S DECISION 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 the issuance of the letter of acknowledgment to Complainant and within seven (7) calendar days of the completion of the issuance of the notice transmitting the supplemental investigative file to Complainant, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) under the docket number for the current appeal, EEOC Appeal No. 2025003823, supporting documents in the digital format required by the Commission. Once all compliance is complete, the Agency shall submit via FedSEP under docket number EEOC Appeal No. 2025003823 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 Complainant and her representative.
9 2025003823 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 C.F.R. § 1614.503(f) for enforcement by that agency. FOR THE COMMISSION: T. Gimbrere __________ Gul Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 17, 2026 Date
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