EEOC Appeal 2025003381

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.

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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.

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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.

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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

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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.

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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,

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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.

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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