EEOC Appeal 2025003823

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.

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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,

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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.

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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.

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“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

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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.

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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

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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.

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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 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