U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darleen R,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152909 Hearing No. 520-2012-00217X Agency No. 200H-0620-2011-102018 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 July 30, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the record is adequately developed for us to determine whether the Agency properly found that Complainant did not prove that it violated the Rehabilitation Act. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant, GS-5, at the Agency's Hudson Health Care System facility in Montrose, New York. Complainant was assaulted by a patient in February 2010, which resulted in injuries to her face. Complainant fell and broke her tailbone at work in July 2010. On July 8, 2010, the Agency offered Complainant a modified assignment as Nursing Assistant in Unit 6AB, which Complainant immediately accepted. On March 25, 2011, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against and harassed her on the bases of race (African-American), national origin (Jamaican), sex (female), disability, age (born in November 1962), and in reprisal for prior protected EEO activity when: 1. On February 7, 2011, the Associate Director of Patient Care in Nursing Services (ADPC) removed Complainant from her light duty position on Unit 6AB; 2. On February 7, 2011, ADPC denied Complainant's request for Leave without Pay (LWOP); 3. On February 7, 2011, ADPC informed Complainant that she could only come back to work in a full duty assignment; 4. On or about March 16, 2011, the Associate Chief of Nursing Services/Mental health (ACNS) denied Complainant's request for authorized absence (AA): and 5. On May 23, 2011, ADPC issued Complainant written notice of a proposed removal that the Medical Center Director (MCD) sustained and made effective July 15, 2011. In an investigative statement, Complainant stated that the regular duties of her Nursing Assistant position include lifting and showering 10 to 15 patients each day. She stated that she had shoulder and back problems that were caused when a patient assaulted her in February 2010, and when she fell and broke her tailbone in July 2010. Complainant stated that she cannot bend, sit too low, pull/lift, or reach above her shoulder because of her condition. Complainant also stated that she is unable to perform the regular duties of her Nursing Assistant position because of her condition. Complainant further stated that she previously filed an EEO complaint in February 2010. Regarding claims 1, 2, and 3, Complainant stated that she received notification on February 7, 2011 that she was being removed from her light duty assignment. She stated that ADPC called the union and told the Nurse Manager to send her home because she could not work. Complainant further stated that management's actions were unacceptable because she was sent home without pay, and subsequently, placed in Absent without Leave (AWOL) status. Complainant also stated that contrary to the Agency's characterization of accepted claim 2, she did not request LWOP. Regarding claim 4, Complainant stated that on or about March 15, 2011, she requested to be placed on authorized absence through the union president, but ADPC denied her request without providing an explanation or written response. Complainant stated that she received a letter to return to duty by April 25, 2011, and in response, she submitted a letter from her physician stating that she could not return to work. Regarding claim 5, Complainant stated that on or about May 23, 2011, she received a letter stating that her employment with the Agency was being terminated because of her AWOL status. Complainant stated that this justification for her termination was unacceptable because she was injured on the job, sent home, and then placed in AWOL status. Complainant stated that as of the date of her investigation statement, she had not received an actual discharge notice. Complainant also stated that before February 7, 2011, she was notified to report for a Fitness for Duty/Second Opinion Examination, but she missed the first scheduled appointment because of a car accident. She stated that she responded to a second examination notification, but she could not recall the date of the examination. Complainant stated that she had not received the results of the examination. Regarding claims 1, 2, and 3, ADPC (Caucasian-American female with a disability born in 1949) stated that she removed Complainant from light duty status because she lacked any medical restrictions related to her accepted Office of Workers' Compensation Programs (OWCP) claim. ADPC stated that in January 2011, Complainant brought in documentation that indicated that she had cervical strain and myofascial pain, and was restricted from bending, twisting, pulling, grasping, or reaching above her shoulder. Complainant stated that this condition and restriction was different from Complainant's original accepted Department of Labor claim, which involved a facial contusion. "We told her that we could not accommodate her light duty because she was expanding a claim," ADPC stated. Report of Investigation (ROI), p. 186. ADPC stated that Complainant underwent a Department of Labor "medical opinion" examination in late February 2011 or early March 2011, and the results of the examination cleared her to return to full duty. She stated that she told Complainant that she could return to full duty, or she could wait for a second medical opinion to also clear her for full duty, or light duty. ADPC further stated that Complainant was provided several options including taking Family and Medical Leave Act (FMLA), or appealing to the Department of Labor to expand her accepted condition. ADPC also stated that Complainant was sent home because the Department of Labor cleared her for full duty, and the facility no longer could maintain her on light duty status. ADPC also stated that she and ADPC met with Complainant on February 7, 2011 and told her that she could return to full duty, and Complainant's representative requested that she be placed in AA status. ADPC stated that ACNS could not place Complainant on AA status because she Complainant had been cleared for full duty, and therefore, she was placed on Absent without Pay (AWOP) status. ADPC stated that Complainant was placed on LWOP when she was sent home. Regarding claim 4, ADPC stated that she denied Complainant's request for AA because placement in AA status would have meant that Complainant would have been paid for staying home, although she had been cleared for full duty. She stated that it was not normal operating procedure to pay an employee to stay home after the employee failed to attend two scheduled medical examinations. The Human Resources Specialist stated that granting Complainant AA in lieu of leave would have inappropriate. Regarding claim 5, ADPC stated that Complainant received a notice of removal because she failed to report for duty and was charged with failure to follow a direct order to return to work by April 25, 2011; she did not communicate with the Agency regarding its order to return to work; was AWOL for 114 hours from March 2, 2011 until March 21, 2011; failed to follow proper leave procedures; and was AWOL for 364 hours from March 22, 2011 until April 25, 2011. She stated that Complainant was sent a proposed removal letter on May 5, 2011 that notified her she had 14 days to respond, and Complainant's representative responded with a rebuttal on June 6, 2011. ADPC further stated that Complainant was issued a removal notice on June 27, 2011 because she failed to return to duty after receiving medical clearance to do so and had abandoned her position. The record contains a copy of Department of Labor Duty Status Reports (Form CA-17) dated March 9, 2011 and April 6, 2011. On these forms, a Neurologist indicated that Complainant had been punched in the face by a patient in February 2010, which resulted in facial pain, headaches, neck pain, and hand numbness. The Neurologist advised Complainant to resume work on light duty, with restrictions on lifting more than ten pounds eight hours per day. The Neurologist further indicated that Complainant could not twist, pull/push, or reach above the shoulder at all. The record also contains a copy of a letter from ACNS to Complainant dated April 11, 2011. In this letter, ACNS noted that Complainant was placed on AWOL on March 21, 2011 because she had exhausted leave and directed Complainant to return to full duty with supporting documentation as a full-time Nursing Assistant no later than April 25, 2011, or action could be initiated to remove her from employment. In a letter to Complainant dated May 5, 2011, ADPC stated that Complainant was sent a return to duty notice ordering her to return to duty with medical documentation by April 25, 2011, but Complainant had not returned to duty or requested leave. The letter further stated that Complainant was charged with failure to follow a direct order; 114 hours of AWOL for the period March 2, 2011 through March 21, 2011; 364 hours AWOL for the period March 2, 2011 through March 21, 2011; and failure to follow proper leave requesting procedures for not requesting leave or reporting to leave during the AWOL periods. In a letter dated June 27, 2011, the Agency notified Complainant that she would be removed July 15, 2011 based on the aforementioned charges. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). On March 25, 2011, Complainant timely requested a hearing but subsequently withdrew her request on May 1, 2015. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed Complainant's claim that she was denied reasonable accommodations in April and May 2010 on the basis that this claim was initiated by untimely EEO Counselor contact, and alternatively, on the basis that it was the same claim raised in a previous EEO complaint. The Agency further concluded that Complainant failed to prove that the Agency subjected her to disparate treatment because she did not show that the Agency's nondiscriminatory explanations were pretext for its actions. The Agency also concluded that Complainant did not prove that she was subjected to unlawful harassment because she did not show that the alleged actions were linked to her protected classes, and the allegations merely pertained to "work-related routine agency business decisions with which the Complainant disagreed." CONTENTIONS ON APPEAL On appeal, Complainant contends that she wanted to remain on light duty until a decision could be made about her neck injury from OWCP, but the Agency did not wait and removed her. Complainant also maintains that she was prejudiced by the AJ's failure to hold a hearing on her case for four years, and when the AJ attempted to clear his back log by rushing with 10-days' notice of the hearing in April 2015, Complainant had to withdraw her hearing request. The Agency presents no arguments on appeal. 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 AND FINDINGS Procedural Dismissals The Agency asserted that it was dismissing a claim by Complainant that she was denied reasonable accommodations in April and May 2010 on the basis that this purported claim was initiated by untimely EEO Counselor contact, and alternatively, because it stated the same claim raised in a previous complaint. However, we note that in the instant complaint, Complainant asserted that in 2011, management abruptly removed her from the unit without pay, forced her out of work, and insisted that she work full duty although she could not do so because of medical limitations. Although Complainant also stated that the agency refused her "reasonable accommodation request in April-May of last year," she indicated that the Agency's actions occurred on February 7, 2011 under the section of the complaint form entitled "Date of Occurrence." Based on Complainant's complaint and investigative statement, it is clear that Complainant is alleging that she was denied reasonable accommodations starting in February 2011, not 2010. Further, the record indicates that Complainant was provided with a light duty assignment within her restrictions in 2010, with makes it very unlikely that Complainant was alleging that she was not reasonably accommodated in 2010. Complainant timely initiated EEO Counselor contact for her 2011 reasonable accommodation claim, and there is no evidence this matter was raised in a previous EEO claim. Therefore, we find that there is no basis to dismiss Complainant's reasonable accommodation claim. Reasonable Accommodation Complainant contends that she was denied a reasonable accommodation for her disability in 2011, as well as subjected to harassment and disparate treatment based on her national origin, race, age, sex, disability, and previous EEO activity.2 Regarding the reasonable accommodation claim, under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1630.9. To establish that he was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with 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 on Reasonable Accommodation). 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 and, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. app. § 1630.9. Thus, "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 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, "Reassignment. In this case, Complainant requested a reasonable accommodation when she presented restrictions from her physician that indicated that she had a medical condition that resulted in facial pain, headaches, neck pain, hand numbness, and restricted her from lifting more than 10 pounds, twisting, pulling/pushing, or reaching above her shoulders. Moreover, these restrictions reveal that Complainant is an individual with a disability under the Rehabilitation Act. See Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (complainant restricted from stooping/bending, and lifting no more than 15 pounds an individual with a disability); Lapointe v. U.S. Postal Service, EEOC Appeal No. 01992460 (June 27, 2002) (Commission has consistently held that 20-pound lifting restriction renders an individual substantially limited in the major life activity of lifting). Complainant clearly could not perform the physically-demanding regular duties of her Nursing Assistant position, and the Agency provided her with work within her medical restrictions until February 7, 2011. The Agency maintains that it denied Complainant's request for continued light duty/reasonable accommodation based on OWCP/Department of Labor's examination results and determinations. However, the record inexplicably does not contain the purported OWCP examinations or determinations. Additionally, the Agency maintains that Complainant previously had an accepted OWCP claim, but the record does not contain any OWCP documentation about the claim. Further, the record does not contain any documentation regarding the duties of Complainant's light duty assignment, or Complainant's restrictions at the time she accepted the assignment. Finally, we note that the Agency's duty to provide a reasonable accommodation under the Rehabilitation Act is distinct from the standards of the OWCP. As such, even if the Department of Labor denied Complainant's claim for light duty in 2011, the Agency would nonetheless have to determine if Complainant could be accommodated through reassignment. In this case, the investigation did not reveal whether, and to what extent, the Agency conducted a search for an equivalent vacant position to which it could have reassigned Complainant. The investigation also did not identify available positions, or grant Complainant an opportunity to address whether she could have performed the essential functions of vacant positions with or without reasonable accommodation. See Bill A. v. Dept' of the Army, EEOC Appeal No. 0120141989 (Oct. 26, 2016) (as part of the federal-sector EEO investigative process, the investigator must obtain relevant information about the availability of vacant, funded positions). We note that, during the investigative stage of the federal administrative process, the Agency has an obligation to develop an adequate investigative record. 29 C.F.R. § 1614.108. "An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." Id. § 1614.108(b). The investigator must conduct a thorough investigation, "identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome." EEO MD-110, Chap. 6 § V.D. Therefore, the investigator must exhaust those sources of information likely to support the positions of the complainant and the agency. In this case, we find that the investigator failed to develop an adequate record. As such, we order the Agency to conduct a supplemental investigation to cure the investigative deficiencies. Because Complainant's reasonable accommodation claim is so closely intertwined with her disparate treatment and harassment claims, we remand the entirety of Complainant's complaint for further consideration after the supplemental investigation. CONCLUSION Accordingly, based on a thorough review of the record, we VACATE the Agency's final decision and REMAND this matter to the Agency to conduct a supplemental investigation and take further action consistent with this decision and the ORDERS below. ORDER The Agency is ORDERED to take the following actions: 1. Within sixty (60) calendar days of the date that this decision becomes final, the Agency shall undertake and complete a supplemental investigation of this complaint, by obtaining detailed sworn statements and relevant documentation in the following manner: A. The Agency shall supplement the record with all OWCP/Department of Labor documentation from 2010 and 2011 regarding Complainant's OWCP claims, including all documentation submitted by Complainant and all determinations made by the Department of Labor regarding her claim. B. The Agency shall supplement the record with all medical examinations, assessments, or determinations by OWCP/Department of Labor in 2010 and 2011 that were used to order Complainant to return to full duty, or to deny Complainant's request for work within her restrictions. C. The Agency shall supplement the record with any other documentation that was used by the Agency in making the decision to order Complainant to return to full duty, or to deny Complainant's request for work within her restrictions. D. The Agency shall supplement the record with documentation regarding the duties of Complainant's light duty assignment, or Complainant's restrictions at the time she accepted and encumbered the assignment. E. The Agency shall supplement the record with documentation, including sworn statements, that reveal whether there were vacant positions to which Complainant was qualified to be reassigned with or without a reasonable accommodation, and to what extent, the Agency conducted a search for an equivalent vacant position to which it could have reassigned Complainant. F. The Agency shall grant Complainant an opportunity to address for the record whether she could have performed the essential functions of vacant positions with or without reasonable accommodation. The Agency shall instruct the investigator to compile the above information into an investigative report, and transmit it to the Agency within ninety (90) days of the date that this decision becomes final. The report shall be inclusive all claims raised in Complainant's complaint, as characterized above and consistent with this decision. No later than thirty (30) days after receiving the report, the Agency will insure that Complainant is in receipt of a copy of the report, and also provide a copy to the Compliance Officer referenced below. Upon completion of the investigative report and receipt by Complainant, the Agency shall again provide Complainant with the opportunity to request a hearing before an Administrative Judge or have the Agency issue a final decision. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant's estate. If the Agency does not comply with the Commission's order, the Complainant's estate may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant's estate also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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 his or her 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. 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: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 11-03-2017 __________________ Date 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 Complainant's disparate treatment and harassment claims are closely intertwined with her 2011 reasonable accommodation claim such that the Agency's explanations for its actions relate to the entirety of Complainant's complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152909 2 0120152909