2025003381•EEOC Appeal 2025003381
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Ileana H.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2025003381 Hearing No. 530-2023-00271X Agency No. 20DR-0050-2022-14820 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 June 16, 2025 final order concerning her equal employment opportunity (EEO) complaint of 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 order. At the time of events, giving rise to this complaint, Complainant worked as a Nurse Consultant, GS-0610-13, in the Agency’s Office of Inspector General (OIG) Office of Healthcare Inspections, Comprehensive Healthcare Inspection Program in Lyons, New Jersey. 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.
2025003381 2 On January 3, 2023, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment based on her disability (mental) and reprisal (current EEO complaint) when: 1. On August 16, 2022, the Associate Director (Supervisor1), denied Complainant’s request to attend mandatory yearly training virtually because of her disability; 2. On September 29, 2022, Supervisor1 denied Complainant’s Reasonable Accommodation (RA) request; 3. At the close of the fiscal year 2022, Complainant was not provided with a performance evaluation; 4. On September 30, 2022, Supervisor1 extended Complainant’s fiscal year 2022 performance cycle for 90 days; 5. On April 26, 2022, Supervisor1 issued Complainant a letter of counseling for not meeting deadlines; 6. On October 18, 2022, the Principal Deputy Assistant Inspector General for Healthcare Inspections, denied Complainant’s request for RA reconsideration; 7. On November 18, 2022, Supervisor1 issued Complainant a letter for proposed removal; 8. On December 20, 2022, Complainant received her Notice of Removal from Federal Employment effective December 20, 2022;2 and 9. On March 10, 2023, Complainant learned that the Agency failed to complete timely and return her Discontinued Service Retirement (DSR) form to the Office of Personnel Management. As a result, Complainant’s DSR annuity payment was delayed an additional 4-6 weeks. 2 The Agency processed the removal claim separately as a mixed-case complaint. As a result, that claim is not currently before us.
2025003381 3 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. The AJ held a hearing and issued a decision finding that Complainant was not subjected to discrimination or reprisal. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant thereafter filed this appeal. Complainant solely argues that the AJ erred with respect to her reasonable accommodation claim.3 Factual Background Complainant worked for the Agency since 1997, including as a Nurse Consultant in the VA New Jersey Healthcare System from 2009 to 2018, before moving to the OIG in 2018. She is a Doctor of Nursing Practice (DNP) and a registered nurse (RN). As a Nurse Consultant, GS-0610-13, one of the essential functions of Complainant’s job is to independently conduct inspections and evaluations of VA facilities and healthcare provided to veterans. Prior to the COVID-19 pandemic, such healthcare inspections required travel throughout the United States. During the COVID-19 pandemic, the healthcare inspections were performed virtually. In December 2021, Complainant traveled to Memphis for an inspection for the first time since the COVID-19 pandemic. Management asserted that travel is an essential function of Complainant’s position. Complainant was permitted to conduct the March 2022 inspections remotely due to her father’s illness. Complainant requested reasonable accommodation in the form of a travel waiver on March 16, 2022. At first Complainant provided management medical information regarding her father’s illness which was insufficient to establish the need for reasonable accommodation. Complainant took two weeks of sick leave starting on or about April 7, 2022. Complainant then provided medical documentation on or about April 22, 2022, stating that she was unable to travel out of state for three to six months due to anxiety.4 3 We exercise our discretion to review only those issues specifically raised in an appeal. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.”). 4 Complainant used leave to avoid the travel requirement in April 2022. Thereafter, Complainant did not travel.
2025003381 4 By May 2022, Complainant’s physician documented a permanent inability to travel or to be involved in the healthcare inspection process and Complainant requested reassignment. On June 27, 2022, she completed the Agency’s “Employee Limitations on Reassignment Options” form. She agreed to accept a different type of position — specifically Nurse Consultant, Health Systems Specialist, or Management/Program Analyst in Directorates 50 through 53 — and a lower grade down to GS-12, and she checked reassignment “to a different sub-component of the agency.” She did not, however, mark willingness to relocate outside her current facility or commuting area and the AJ found that she limited reassignment to her commuting area. The Agency’s Human Resources Officer ran a reassignment search from July 6 to September 20, 2022, which resulted in no positions found. However, that search was confined to the OIG; the Agency did not conduct an Agency-wide search. Complainant was removed on December 20, 2022, for medical inability to perform. ANALYSIS Substantial record evidence establishes that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. We agree with the AJ that the record does not support the conclusion that Complainant was denied reasonable accommodation between April 2022 and May 2022 (i.e., the timeframe when she requested a temporary travel waiver). During this very short period, the Agency was gathering information, engaging in the interactive process and ultimately, Complainant was permitted to use sick leave to avoid travel in April 2022. As of May 2022, Complainant was no longer qualified to perform the essential functions of her position and requested reassignment as accommodation of last resort. Contrary to the AJ’s findings, the record establishes that while Complainant was no longer qualified to perform the essential functions of her position, she was entitled to reassignment.5 5 When an employee seeks reassignment as a reasonable accommodation for a disability, the relevant question when deciding whether she is a qualified individual is not whether the employee is qualified for her current position, but whether she is qualified for the new job. 29 C.F.R. § 1630.2(m); Wilson v. U.S. Postal Serv., EEOC Appeal No. 0120053791 (Mar. 16, 2007); Bill A. v. Dep’t. of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). Contrary to the AJ’s analysis, the only
2025003381 5 We also find that the Agency failed to conduct a proper search for a vacant, funded position that Complainant was able to perform by limiting the search to OIG-only. Absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions. See Julius C. v. Dep't of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017); Shanti N. v. Dep’t. of Health & Human Servs., EEOC Appeal No. 2019004882 (Sept. 14, 2021); Bartron v. Dep’t. of Def., EEOC Appeal No. 0720100054 (Mar. 3, 2011) (rejecting an OIG-only search).6 Notwithstanding, Complainant has an evidentiary burden in such reassignment cases to establish, by a preponderance of the evidence, that there were vacancies during the relevant time period into which complainant could have been reassigned. Complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting Complainant's evidentiary burden. In the alternative, Complainant need only show that: (1) she was qualified to perform a job or jobs which existed at the agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Alana W. v. Soc. Sec. Admin., EEOC Appeal No. 0120180037 (Apr. 17, 2019); Hampton v. U.S. Postal Serv. EEOC Appeal No. 01986308 (Aug. 1, 2002) (compare with Bill A. v. Dep’t. of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (during investigative stage of federal administrative process, agency has obligation to develop adequate investigative record and obtain information about availability of vacant, funded positions).7 We agree with the AJ’s ultimate conclusion that Complainant has not met her evidentiary burden by identifying any other position or the likelihood of a position circumstance where reassignment would not be an option is if the employee was never qualified for the position for which she was hired. See Clinton C. v. U.S. Postal Ser’v., EEOC Appeal No. 2018000044 (Oct. 9, 2019). Complainant has worked for the Agency for years and it is undisputed that prior to March 2022, she was qualified to perform the essential functions of her position. 6 OIG is statutorily independent under the Inspector General Act of 1978. While OIG’s independence is not irrelevant, it is analyzed as an undue hardship defense, not as a categorical limit. To confine the search to the OIG, the office would have had to prove, with case-specific evidence, that an agency-wide search would impose an undue hardship, which it did not do. 7 Complainant does not assert on appeal that the record is not adequate or that the AJ abused her discretion with respect to any aspect of discovery.
2025003381 6 to which she could have been reassigned during the relevant timeframe. Accordingly, we find substantial evidence in the record does not support the conclusion that Complainant was denied accommodation in violation of the Rehabilitation Act. Upon careful review of the AJ’s decision and the evidence of record, including arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s 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: 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,
2025003381 7 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). 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.
2025003381 8 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 ________ Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 16, 2026 Date
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