Callie B.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

2019000224 (E.E.O.C. Dec. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Callie B.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 20190002242

Hearing No. 451-2016-00083X

Agency No. ARFTSAM15JAN00205

DECISION

On August 30, 2018, 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 26, 2018, final order 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. and 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.

ISSUES PRESENTED

The issues presented are whether the Administrative Judge (AJ) erred in issuing summary
judgment in favor of the Agency; and, whether Complainant has shown by a preponderance of the
evidence that the Agency subjected her to a hostile work environment and discrimination based on
her disability and reprisal.

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 A duplicate appeal, EEOC Appeal No. 2019001520, in this matter was opened, and later closed.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked a Financial Manager at
the Agency’s Veterinary Command of Animal Medicine at Fort Sam Houston, in Texas.

On March 11, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (physical) and in reprisal for protected EEO activity (instant
complaint) when3:

1. on or about June 1, 2014, Complainant was tasked to provide additional medical
documentation;

2. from June 1 to December 2014, the Director of Veterinary Services, Complainant’s second
line supervisor (S2), delayed his decision on her reasonable accommodation request;

3. on or about December 12, 2014, Complainant’s request to remain in her position until the
end of the fiscal year to complete high-priority audits was denied;

4. from April 2014 to January 23, 2015, Complainant was repeatedly denied her request for
reasonable accommodation to remain at the Agency and telework;

5. on or about January 23, 2015, Complainant was told her position at the Agency would not
be abolished because they wanted to keep another employee; and,

6. on April 28, 2015, Complainant received a Notice of Removal from S2.

The investigative record reflects the following pertinent matters relating to the subject claims.

By letter dated June 16, 2014, Complainant was provided a Notice of Transfer of Function (the
Notice). The Notice stated that due to the Public Health Command transition, Complainant’s
position as a Financial Manager was being moved from its current location at Fort Sam Houston,
Texas, to Aberdeen Proving Ground in Maryland. The Notice stated that the transition would occur
no later than March 31, 2015. The Notice provided that Complainant had the right to transfer with
the same pay plan, grade, and base salary. However, should Complainant decline to transfer, she
would be separated from employment. Should she decline the transfer, the Notice stated she would
be eligible to register in the Priority Placement Program as a Displaced Employee.

On or about June 23, 2014, Complainant submitted a reasonable accommodation request to
maintain her Texas residence while performing her duties either at a remote work site, and/or
permanent telework in lieu of relocating to Maryland.

3 On August 26, 2015, Complainant requested to amend her complaint. The Agency noted the
request and determined that her request for amendment was already sufficiently covered by the
accepted claims.
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On July 16, 2014, Complainant’s first line supervisor, the Animal Medicine Program Manager
(S1), requested Complainant provide “specific medical information as to why she cannot relocate.”

By letter dated September 9, 2014, S1 informed Complainant that her request was denied because
there was no medical reason that would have prevented her from physically relocating to
Maryland. S1 stated that if Complainant relocated, telework requests could be considered, but not
full time telework from Texas.

On October 16, 2014, Complainant appealed the decision to S2, arguing that relocating, and then
requesting an accommodation was not a reasonable response by S1.

By letter dated December 19, 2014, S2 denied Complainant’s request for reconsideration of S1’s
denial. S2 stated that the duties of her position and her role with the command made it necessary
for her to physically report for duty. On December 19, 2014, Complainant declined to transfer to
the Maryland facility. Complainant requested to stay in her position through the end of the fiscal
year, September 2015. She was told this would not be possible, and that it was not feasible for a
fund manager to perform the essential functions of the position while permanently teleworking.
Management stated that the Maryland location would have assisted with any telework requests had
Complainant accepted the transfer, but that they could not offer her permanent telework status
from Texas. In a discussion regarding her position, management stated that Complainant’s position
was not abolished, and she was only terminated because she declined the transfer.

On March 23, 2015, Complainant received a Notice of Proposed Removal as she had declined the
transfer. On April 28, 2015, Complainant received a Notice of Removal from S2. The Notice stated
that Complainant declined the offer of Transfer of Function from Fort Sam Houston, Texas to
Aberdeen Proving Ground, Maryland. As a result, Complainant was removed effective April 30,
2015. The Notice further stated that Complainant would remain in the Priority Placement Program
for the local commuting area for one year from the date of her removal.

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. Over Complainant’s objections, the AJ assigned
to the case granted the Agency’s July 6, 2016 Motion for a decision without a hearing. The AJ
issued a decision without a hearing on June 28, 2018. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant provided a detailed and lengthy appellate brief reiterating that she was subjected to
a hostile work environment and discriminated against based on her disability and reprisal for
initiating the instant complaint. Complainant’s brief included a timeline of events that she asserts
demonstrates that the Agency’s actions were motivated by discriminatory and retaliatory animus.

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Complainant also asserts that summary judgment was inappropriate as many material facts remain
in dispute. Complainant provided a list of several items that she deemed in dispute, and argues a
hearing should have been held to answer them. For example, she asserted that she was previously
granted telework ability several days a week, but suddenly, due to the relocation, teleworking was
no longer an option. Complainant also asserts that she previously attempted to amend her
complaint with no success. Complainant asserts that had her amendment been approved, then the
outcome of the complaint could have been different.

In response, the Agency essentially reiterates arguments made in its July 6, 2016 Motion for a
decision without a hearing. The Agency notes that it considered Complainant’s amendments and
that it was sufficiently included in her claims already. The Agency also responds to questions
posed by Complainant in her appellate brief. The Agency argues that Complainant’s appellate
statement fails to provide any new and persuasive arguments regarding her claims. The Agency
requests that the Commission affirm the Agency’s final order implementing the AJ’s findings of
no discrimination.

ANALYSIS AND FINDINGS

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We
carefully reviewed the record and find that it is adequately developed. To successfully oppose a
decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant argued that
summary judgment was inappropriate. For example, Complainant asserted that the Agency had
previously provided her a reasonable accommodation that allowed for teleworking several days a
week, and that discontinuing it solely on the basis of relocation was improper. Additionally,
Complainant also asserted that full time onsite attendance was never considered essential before,
and its sudden change seemed disingenuous. Complainant provided many points of contention.
However, we are not persuaded by her arguments. The record is adequately developed, and what
Complainant argued as in dispute can be readily gleaned from the record.
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Based on what Complainant provided on appeal, and what was included in the Report of
Investigation, we find that the AJ correctly determined that there were no genuine issues of
material fact or credibility that would merit a hearing. Therefore, the AJ’s issuance of a decision
without a hearing was appropriate.

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Disability-Based Discrimination & Reasonable Accommodation

In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, a
complainant must demonstrate that she is an “individual with a disability” within the meaning of
the Act. An “individual with a disability” is defined as one who: 1) has a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; 2)
has a record of such impairment; or 3) is regarded as having such an impairment. 29 C.F.R. §
1630.2(g). Major life activities include, but are not limited to, “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). The Interpretive Guidance to the regulations further notes that
“other major life activities include, but are not limited, to, sitting, standing, lifting, and
reaching.” 29 C.F.R. Part 1630 Appendix § 1630.2(j).

A qualified individual with a disability is an individual with a disability who satisfies the requisite
skill, experience, education, and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable accommodation, can perform the
essential functions of such position. 29 C.F.R. § 1630.2(m).
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Under the Commission’s regulations, federal agencies may not discriminate against individuals
with disabilities. The Agency is required to make reasonable accommodation for the known
physical and mental limitations of qualified individuals with disabilities, unless the Agency can
show that reasonable accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2
(o) and (p); EEOC 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); Barney G. v. Department of
Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). Reasonable accommodation
may include making facilities accessible, job restructuring, modifying work schedules, and other
similar actions. Dennis v. Department of Education, EEOC Appeal No. 0120090193 (June 15,
2010); Spence v. Nuclear Regulatory Commission, EEOC Appeal No. 0120041082 (August 2,
2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008).

A request for a modification or change at work because of a medical condition is a request for
reasonable accommodation. See 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. Part 1630, 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. Part 1630, App. § 1630.9; Enforcement Guidance on
Reasonable Accommodation at Question 5.

Reprisal

Complainant also alleges that the Agency retaliated against her. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Upon our review of the voluminous evidentiary record, which consists of numerous affidavits and
exhibits, and having fully considered and analyzed the record, the AJ’s decision, and the Agency’s
decision, we conclude that the preponderant evidence does not establish discriminatory or
retaliatory animus.4

4 The record in this case is exhaustive and details numerous incidents in support of the claim. We
will not individually address each incident of alleged discrimination. Although the claims will
not be individually addressed, all matters which Complainant raised have been considered and
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Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on her disability5 and reprisal, the Agency
has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant’s
position, along with the entire Veterinary Services Central Fund (VSCF) was being moved from
Fort Sam Houston in Texas, to Aberdeen Proving Ground in Maryland. Complainant’s position
was clearly not the only one affected. All affected employees were provided with notices regarding
the transition, and provided an opportunity to accept or decline. The option to decline meant that
the individual would be terminated from his/her position. When Complainant ultimately declined
to transfer to the Maryland facility, she was terminated from her position. Despite her contentions,
there is no evidence to support her assertions that her termination was motivated by discriminatory
or retaliatory animus.

Here, Complainant argued that at the least, she should have been allowed to remain in Texas, and
in her position, until at least the end of the fiscal year, September 2015. However, that would not
have been possible as the transition was occurring no later than March 31, 2015. Additionally,
Complainant alleged that her position would be abolished so that another employee could remain
on. There is no evidence to support this assertion. Complainant was provided with the option to
transition, as did all affected individuals. She was not treated any differently from any other
affected employees.

We note that agencies generally have broad discretion to carry out personnel decisions and exercise
business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996).
Regarding adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for its
actions which Complainant has failed to show were pretext for discrimination. Pretext inquiry is
not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether
the agency made the best, or even a sound, business decision; it is whether the real reason is
discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for
intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

With respect to Complainant’s denial of reasonable accommodation claim, we find that, despite
Complainant’s claim to the contrary, the Agency was involved in the interactive process. Here,
Complainant requested to either work at a remote site in Texas, and/or permanently telework from
her Texas home, rather than move to Maryland.

viewed in the context of all bases and in the context of disparate treatment and a hostile work
environment.
5 We presume, for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
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Upon her request, the Agency requested medical documentation to support her claim. It was later
determined that nothing was barring Complainant from making the move. Rather, it was a personal
choice that she did not want to leave her medical and support system in Texas. We have repeatedly
held that protected individuals are entitled to reasonable accommodations, but not necessarily the
accommodation of the individual’s choice, simply one that is effective. Castaneda v. U.S. Postal
Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant noted that while working at Fort
Sam Houston, she had previously requested an accommodation and was allowed to telework
several days a week. Complainant felt that since she was already teleworking a few days a week,
it would not be too onerous for the Agency to consider it full time. Although an employee’s
preferred accommodation should be considered, the Agency may ultimately choose among
effective accommodations. In this matter, management testified that Complainant’s position
required her to physically be in the office, at least some of the time, and therefore an
accommodation that would have allowed her to stay permanently in Texas would not have been
reasonable. See also Watson v. U.S. Postal Serv., EEOC Appeal No. 01A12280 (June 20, 2002)
(an individual’s preference should be given primary consideration; however, the agency providing
the accommodation has the ultimate discretion to choose between effective accommodations)

We note that the Rehabilitation Act does not require an agency to provide “make do” work, create
“make work” jobs, or transform light-duty or limited-duty assignments into permanent jobs to
accommodate an employee’s disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir.
1997); see also Josephine S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161196 (June
26, 2018) (agency does not have to create “make do” or “make work” jobs); Complainant v. U.S.
Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014) (employer not required to provide
“make do” work or create a job for an employee with a disability); Wood v. U.S. Postal Serv.,
EEOC Appeal No. 01A46073 (May 5, 2006) (employer not required to transform temporary light-
duty jobs into permanent jobs to accommodate a disability). To the extent that Complainant is
arguing that the Agency should have created a position for her as part of its reasonable
accommodation obligations under the Rehabilitation Act, her argument is without merit. The
record clearly demonstrates that Complainant’s request was considered, and appropriately denied.
Complainant was later terminated from her position because she declined the transfer, not due to
her disability or reprisal.

Here, the record supports the AJ’s determination that the Agency’s proffered reasons were
legitimate and non-discriminatory. Complainant did not provide persuasive arguments, below or
on appeal, that the Agency’s actions were pretext for discrimination or unlawful retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing
the AJ’s final decision finding no discrimination.

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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 (S0610)
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 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. 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.
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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, Director
Office of Federal Operations

December 19, 2019
Date