U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julius P.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120162827 Agency No. 2003-0504-2015102156 DECISION On September 9, 2016, 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 August 16, 2016, final decision concerning his 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 VACATES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency adequately investigated Complainant's complaint such that a determination can be made as to whether Complainant was subjected to discrimination based on disability and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, 0679, GS-6 in the Specialty Clinic at the Agency's Lubbock, Texas VA Outpatient Clinic facility. While Complainant's customary first-line supervisor was on extended leave, Complainant was supervised remotely by three employees based in Amarillo, Texas, including a Call Center Supervisor (S1). Complainant's second-level supervisor was the Amarillo Health Administration Service (HAS) Assistant Chief (S2), and his third-level supervisor was the Amarillo HAS Chief (S3). Complainant stated that his physical disabilities include foot, ankle, knee, and back problems and nerve damage to his spine and that these impairments limit his ability to walk, lift, and type. According to Complainant, he also has depression, an anxiety disorder, and post-traumatic stress disorder (PTSD), and these mental impairments affect his ability to sleep, communicate, and focus. Complainant averred that his first EEO activity consisted of contacting an EEO Counselor on March 2, 2015, to initiate the instant complaint. Complainant averred that when he first began working for the Agency in 2010, there were four Medical Support Assistants assigned to the Lubbock Specialty Clinic. According to Complainant, by February 2015, he was the only Medical Support Assistant managing the Specialty Clinic after other Medical Support Assistants retired or resigned. Complainant alleged that he complained to S2 and S3 about his workload to no avail. S3 admitted that there were vacancies, but he stated that Medical Support Assistants in other departments helped out Complainant as needed. S3 noted that some of the vacancies have since been filled. According to Complainant, the Agency had a long-standing practice of allowing him to take annual leave in lieu of sick leave when he did not have any sick leave available. Complainant stated that on February 19, 2015, S1 told him that he could no longer request annual leave in lieu of sick leave when his sick leave was exhausted. According to S1, Complainant's leave requests were affecting patient care, so she told him that only leave without pay (LWOP) would be granted for medical appointments when he did not have any sick leave available. Complainant averred that on February 19, 2015, S1 also told him that he would need to provide evidence that medical appointments were for a service-connected condition in order to be granted sick leave, annual leave, or LWOP. S1 averred that she informed Complainant that, pursuant to Executive Order 5396, as a veteran with service-connected disabilities, he had the right to take sick leave, annual leave, or LWOP for medical treatment when he requested the leave in advance and presented the Agency an official statement that the medical treatment was required. On February 24, 2015, Complainant was late to work. According to Complainant, he was only five minutes late and requested 15 minutes of leave to cover his tardiness. S2 averred that a Nurse Manager observed that Complainant was more than five minutes late to work, so she charged him absent without leave (AWOL). On February 19, 2015, Complainant had requested one hour of annual leave for a medical appointment on February 26, 2015. On February 25, 2015, S2 denied Complainant's annual leave request due to workload affecting patient care. Complainant did not report to work on February 26, 2015. According to S2, she charged Complainant AWOL for February 26, 2015, because he did not report to work and because he had not requested any other type of leave after his annual leave request was denied. Complainant did not report to work between March 10, 2015, and April 6, 2015. Complainant averred that he could not work because he was stressed about his working conditions. According to Complainant, he notified S1 and the other two remote supervisors of his absences by email because it was too inconvenient to figure out which supervisor was in charge that day to call that person. Complainant stated that on May 20, 2015, he received a letter from S3 notifying him that he was being charged AWOL for his absence from March 10, 2015, to April 6, 2015. S3 stated that Complainant failed to show up for his assigned tour of duty or appropriately contact a supervisor to request leave. According to S3, on June 24, 2015, Complainant was granted retroactive Family and Medical Leave Act (FMLA) leave, and the AWOL charges were changed to FMLA LWOP. On October 17, 2015, Complainant received a letter from the Defense Finance and Accounting Service (DFAS) asking for repayment of $150.16 in holiday pay that he received when he was on FMLA LWOP on July 5, 2015. According to Complainant, management intentionally overpaid him in order to cause hardship. S1 stated that DFAS automatically requests repayment when an overpayment is discovered. Complainant initiated contact with an EEO Counselor on March 2, 2015. On May 7, 2015, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him on the bases of disability (physical and mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 (initiating the instant complaint) when: 1. On February 5, 2015, Complainant was assigned the workload of four administrative employees; 2. On February 19, 2015, S1 informed Complainant that he could no longer request annual leave in lieu of sick leave when his sick leave balance is zero; 3. On February 19, 2015, S1 told Complainant that he had to provide proof that his doctor's appointments were for a service-connected condition in order to request annual leave, sick leave, or LWOP; 4. On February 24, 2015, S2 threatened to charge Complainant AWOL for being five minutes tardy; 5. On February 26, 2015, S2 charged Complainant AWOL; 6. On May 20, 2015, Complainant was notified that he was charged AWOL from March 10, 2015, to April 6, 2015; and 7. On October 17, 2015, Complainant received a letter demanding repayment of the holiday pay he received while he was in AWOL status. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the EEO Investigator failed to conduct an impartial investigation. According to Complainant, the EEO Investigator neglected to interview the witnesses he suggested, including his union representative. Complainant requests an impartial review of his appeal and that the matter be remanded for a supplemental investigation. In response to Complainant's appeal, the Agency contends that Complainant failed to establish that its legitimate, nondiscriminatory reasons for its actions were pretextual and failed to establish that he was subjected to a hostile work environment. The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS 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"). EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110, at Chap. 6, § IV.B. An investigation must include "a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant." Id. at § IV.C. Also, an investigator must identify and obtain "all relevant evidence from all sources regardless of how it may affect the outcome." Id. at § VI.D. EEOC Regulations provide that the Agency and any employee of a Federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. 1614.108(c)(1). The regulations further provide that when the Agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to requests for . . . affidavits . . . the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal, may in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as it deems appropriate. 29 C.F.R. § 1614.108(c)(3). Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. During the investigation, Complainant provided a list of six witnesses to the EEO Investigator. However, the EEO Investigator neglected to interview any of Complainant's witnesses, only interviewing Complainant, the responsible management officials, and other management witnesses. This decision by the Investigator unfairly restricted Complainant's ability to prove that he was subjected to discrimination, and there is no evidence in the record that attempting to contact Complainant's witnesses would have been overly burdensome to the investigation. See Emiko S. v. Dep't of Commerce, EEOC Appeal No. 0120170543 (Apr. 27, 2017). Moreover, we find that Complainant's claim that he was unable to take annual leave in lieu of sick leave for his disabilities constitutes a denial of a reasonable accommodation claim. In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(c) and (p). "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). Further development of the record is required to assess Complainant's reasonable accommodation claim and to assess whether permitting Complainant to take annual leave in lieu of sick leave would have constituted undue hardship. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter to the Agency to conduct a supplemental investigation in accordance with this decision and the below ORDER. ORDER Within ninety (90) calendar days of the date that this decision is issued, the Agency shall undertake and complete a supplemental investigation of this complaint, which shall include the following: 1. The EEO Investigator shall contact, to the extent possible, all of the witnesses whom Complainant identified as supportive of his claims. If any of Complainant's named witnesses are no longer employed with the federal government and cannot be contacted or are unwilling to provide a statement, this shall be clearly stated in the report of the supplemental investigation. 2. The EEO Investigator shall fully investigate Complainant's reasonable accommodation claim, including any contention by the Agency that provision of a reasonable accommodation would impose an undue hardship. 3. Complainant shall have the opportunity to submit rebuttal affidavit(s). Once the supplemental investigation is completed, the Agency shall issue Complainant a new notice of right to request a hearing or an immediate final decision on the evidence gathered in both the original and supplemental investigations. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). This report must include a copy of the supplemental investigative report and the notice of Complainant's rights. 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. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant 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 03/06/18 __________________ 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 0120162827 8 0120162827