0120100802
05-07-2015
Complainant, v. Jenny R. Yang, Chair, Equal Employment Opportunity Commission,1 Agency.
Complainant,
v.
Jenny R. Yang,
Chair,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120100802
Agency No. 200700043; 200800043
DECISION
On December 11, 2009, Complainant filed an appeal from the November 13, 2009, Final Agency Decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established by a preponderance of the evidence that she was subjected to discrimination, and harassment, and that the Agency failed to provide her with reasonable accommodation as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Trial Attorney, GS-14, in the Agency's Baltimore Field office in Baltimore, Maryland. On September 28, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her (Complaint No. 200700043). On September 27, 2008, Complainant filed a second formal complaint (Complaint No. 200800043). On October 16, 2008, the Agency issued a letter accepting both complaints for investigation and consolidating them. Complainant alleged that:
1. She was discriminated against on the bases of disability (Collagenous Colitis) and in reprisal (filing a grievance) when she was denied a reasonable accommodation on June 12, 2007;
2. She was subjected to disparate treatment and harassment on the bases of disability (Collagenous Colitis) and in reprisal (opposing discriminatory practices and participating in the EEO process) when, during her detail to the mediation unit, management: (a) failed to accommodate her disability, as agreed to prior to the acceptance of her detail, (b) questioned her duty hours and the terms of her telework schedule, and (c) restricted and threatened disciplinary action against her in the performance of her duties as Baltimore Field Office Union Steward; and
3. She was subjected to discrimination on the bases of age (53), disability (Chronic Collagenous Colitis), and reprisal (opposing discriminatory practices and participating in the EEO process) when, upon return from her detail in the mediation unit, management: (a) failed to accommodate her disability and failed to engage in the interactive process, and (b) subjected her to retaliation through disparate terms and conditions of employment and harassment with respect to time and attendance, assignment of duties, and hostile treatment (including allegedly hostile emails and statements).
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found the following: In February 2006, Complainant was diagnosed with Collagenous Colitis, a condition causing her persistent diarrhea, fecal incontinence, and spoilage.2 The Agency found that solid food appeared to be the only factor that causes flare-ups. In an effort to avoid flare-ups at work, Complainant refrained from eating solid food in the office.
Legal Unit (early fall 2006 through April 2008)
Complainant alleged that the Agency denied her accommodation request in reprisal for her filing of a Union Grievance on April 20, 2007. Specifically, she asserted that she was denied a reasonable accommodation when the Agency notified her on June 12, 2007 that although she was not an individual with a disability, it would seek to provide her with a form of accommodation.
Prior to her diagnosis, Complainant's former supervisor, Supervisory Trial Attorney (STA1), allowed Complainant to telework twice a week on a flexiplace schedule due to her symptoms. Complainant stated that STA1 also allowed her to work from home for an additional day as needed, as an unofficial accommodation.
In late summer or early fall 2006, Supervisory Trial Attorney (STA2), became Complainant's supervisor after STA1 transferred to another office. Thereafter, STA2 expressed concern about Complainant's requests to telework an additional day. Complainant explained, while not requesting an accommodation, her condition to STA2. Nevertheless STA2 denied the requests to telework an additional day and informed Complainant that she would need to take leave for any additional time off. Complainant's work schedule under STA2's supervision remained the same work schedule she had under STA1, with Mondays and Thursdays as flexiplace days. However, she was no longer allowed an additional telework day as needed.
On November 9, 2006, Complainant stated that STA2 issued her a written reprimand for "abuse of leave." In response to the reprimand, Complainant inquired whether she could provide medical documentation to justify her absences. STA2 declined the offer for documentation. STA2 told Complainant that she wanted a cessation of the leave requests. Complainant asserted that STA2 also stated that, if Complainant desired an accommodation, she should contact the Office of Human Resources (OHR). Complainant decided against contacting OHR.
On April 6, 2007, Complainant stated that she received an email from STA2 informing her that she was being removed from the flexiplace schedule due to "leave abuse." STA2 stated that Complainant's absences were immediately prior to or following her flexiplace days. Complainant maintained to STA2 that, since her flexiplace days were Monday and Thursday, the days on which she would call in would necessarily be either prior to or following her flexiplace days. When Complainant met with STA2 to discuss the matter, STA2 again suggested that Complainant contact OHR if she required an accommodation.
Complainant filed a grievance, on April 20, 2007, regarding her removal from the flexiplace schedule. The grievance alleged that management in the Baltimore Field Office, which is under the jurisdiction of the Philadelphia District Office (PDO), violated regulations by "restricting, terminating or otherwise excluding Trial Attorneys and other bargaining unit employees in the Legal Unit of the PDO from the Agency's Telework Program" and by "removing [Complainant] from the Telework Program as a punitive, discriminatory and retaliatory measure, and on the basis of a disability request for continuation of an accommodation afforded her by her former supervisor."
On the same day Complainant filed the Grievance, she requested a reasonable accommodation from the Agency's Disability Program Coordinator (DPC). Complainant requested to be reinstated to the flexiplace program with her previous Alternative Work Schedule (AWS), as well as to be allowed to work from home for an additional day as needed.
In order to determine the nature of Complainant's condition, DPC requested that Complainant complete a set of interactive questions. Additionally, on May 11, 2007, Complainant's doctor, Dr. P., faxed medical documentation to accompany Complainant's responses to DPC.
On June 12, 2007, Complainant was notified via letter of the dismissal of her accommodation request because Dr. P. had indicated that, "while there is no specific treatment for the disorder, its symptoms can be controlled, and the condition does not affect a patient's ability to perform a job if the patient has access to a bathroom when flare-ups occur." Although DPC denied Complainant's accommodation request, she offered to move Complainant to an office closer to one of the two women's restrooms on her floor and to provide a key to lock the restroom door should a flare-up arise. She further provided that Complainant could take floating flexible leave, and use any leave she had available to her, including leave without pay.
On July 19, 2007, Complainant sought reconsideration of the denial of her reasonable accommodation request. On August 3, 2009, DPC responded stating that "the Disability Program reaffirms the decision of Flexible Floating Leave as defined in the response provided to you in the July 16, 2007 email."
On September 19, 2007, the Agency's former Chief Operating Officer (COO) issued a Step-3 Grievance Decision. The COO found: (1) no attorneys in the Legal Unit of the PDO requested participation in the Telework Program; (2) DPC warned Complainant of what she viewed as "leave abuse;" (3) Complainant should have contacted OHR if she required an accommodation; (4) Complainant failed to contact OHR until after being removed from the Telework Program; (5) notwithstanding Complainant's assertion that the Telework Program was not an accommodation, but a benefit of employment, OHR treated Complainant's request as such because it engaged Complainant in the interactive process concerning the alleged disability; and (6) no violation occurred. The decision encouraged continued good faith interaction between the parties to determine if an equitable resolution could be found and instructed OHR to provide the requested accommodation for a three week period, commencing from the date of the decision.3
On October 12, 2007, DPC and a Human Resources Specialist (HRS) met with Complainant and her union representative. As a result, in a letter dated October 31, 2007, DPC reconsidered the accommodation denial and approved Complainant's requested accommodation, with the exception of a "floating third [flexiplace] day." The letter also found that Complainant was a qualified individual with a disability.
Reasonable Accommodation during Detail
The Agency found that Complainant was never removed from the Agency's flexiplace schedule, and Complainant offered no specified period of time when her accommodation was removed. Instead, the Agency found that she appeared to allege that the discussion of the possible removal of her accommodation was discriminatory.
Complainant began her detail in the ADR Unit on or about April 21, 2008. On April 22, 2008, Complainant spoke to ADR Coordinator for the PDO (ADRP). ADRP supervised the ADR Unit and was Complainant's direct report during her detail. Complainant told ADRP that she teleworked twice a week as a reasonable accommodation. ADRP asserted that he was unaware of Complainant's reasonable accommodation at the time of her assignment to the ADR Unit.
Complainant stated that, in two subsequent meetings with ADRP, in which she discussed her accommodation, ADRP informed her that employees in the ADR Unit generally telecommute only once per week and voiced his concern that Agency's ADR work did not support teleworking twice weekly.
On May 20, 2008, ADRP consulted Assistant Director, OHR (ADOHR) regarding Complainant's accommodation. He was advised to document and send notice to Complainant regarding his concern with whether the workload supported Complainant's accommodation. On May 22, 2008, ADRP stated that he sent Complainant a memorandum informing her that he was evaluating the appropriateness and effectiveness of her reasonable accommodation as it related to her position in the ADR Unit. In the memorandum, he also invited Complainant to work with him to determine whether her accommodation was transferable to her detail as a mediator. Although Complainant alleged a removal of her accommodation, ADRP denied making any alteration to the accommodation afforded Complainant regarding her telecommuting schedule.
"Slide and Glide" Policy
On May 7, 2008, ADRP visited the office to meet with the mediators. On the second day of meetings, ADRP met with his staff at 9:00 a.m. Complainant arrived between 9:30 and 9:40 a.m. When ADRP spoke to Complainant about her arrival time, she responded that employees were allowed to "slide and glide." ADRP explained to Complainant that it was his understanding that "slide and glide" did not apply to employees on a compressed work schedule. On May 22, 2008, ADRP issued Complainant a memorandum reflecting his position and requesting that Complainant select a specific tour of duty. Complainant informed ADRP that the Union had an agreement to allow all employees to "slide and glide" and provided supporting documentation. ADRP consulted with ADOHR. Subsequently, Complainant received an email, dated June 4, 2008, informing her that the May 22, 2008 memorandum had been rescinded by the Director, Philadelphia District Office (DPDO).
Performance of Union Steward Duties
During the week of May 12, 2008, the staff mediator was out of the office. As a result, Complainant was charged with covering the ADR Unit that week. However, during that week, ADRP received an email from a contract mediator attempting to contact someone in the ADR Unit. When ADRP was unsuccessful in contacting Complainant, he was informed that Complainant was out on union business. ADRP stated that this was his first notice of Complainant's union activities. On May 23, 2008, ADRP issued a memorandum to Complainant regarding unauthorized use of official time.
On May 22, 2008, Complainant sent DPDO an email concerning her working conditions in the ADR Unit. When she did not receive a response from DPDO, Complainant sent another email on May 27, 2008, requesting a transfer back to the Legal Unit. DPDO approved Complainant's request to return to the Legal Unit with her existing telecommuting schedule on May 28, 2008.
Return to Legal Unit in June 2008
Complainant alleged disparate treatment relating to time and attendance, assignment of duties, hostile treatment and emails, and other actions. For example, on June 11, 2008, Complainant performed outreach for the State of Maryland on the subject of the Americans with Disabilities Act (ADA). While Complainant was having lunch, STA2 called inquiring about her whereabouts. Complainant asserted that, although she informed STA2 that she was at lunch, STA2 responded that she was "under strict instructions" to note Complainant's time and attendance, and STA2 instructed Complainant to "get back to work." STA2 asserted that the phone call occurred as a result of Complainant's "record of excessive absenteeism and tardiness" which "impacts her performance." STA2 also explained that, although Complainant's use of leave for the month of March 2009 was down compared to leave usage in prior months, Complainant had a "fairly good record of a lack of showing up to work."
Claim 1
The Agency dismissed claim 1 because Complainant had raised the matter in a negotiated grievance procedure that permits claims of discrimination. The Agency found that the Step-3 Decision reviewed and decided the entire scope of Complainant's request for an accommodation. As such, the Agency dismissed Complainant's allegations in claim 1 because the facts of the Grievance were inextricably intertwined with the facts of claim 1, and any effort to separate them would result in the dual processing of the claim.
Claim of Failure to Provide a Reasonable Accommodation
With regard to claims 2 and 3, the Agency noted that OHR did not find Complainant was an individual with a disability and, as a result, she was offered alternative suggestions/accommodations as a means of assisting her. The Agency found that OHR's determination that Complainant was not an individual with a disability was supported by the medical documentation it possessed at that time.
With respect to claim 2, the Agency found that the record did not show that Complainant's prior accommodation had actually been removed. Although ADRP expressed concern about the accommodation, the Agency noted that he engaged in the interactive process by discussing the accommodation with Complainant to determine if there was a more appropriate accommodation in the ADR Unit. The Agency found that Complainant left the ADR Unit prior to any substantive discussions concerning an appropriate accommodation. As such, the Agency concluded that no action was taken by ADRP regarding Complainant's accommodation.
Similarly, as to claim 3, the Agency found that nothing in the record indicated that Complainant's accommodation was actually removed or that she requested an expansion of her existing accommodation. Instead, according to Complainant, DPDO approved her request to return to the Legal Unit with her existing telecommuting schedule on May 28, 2008. As such, the Agency concluded that Complainant did not prove that the Agency failed to accommodate her during her detail in the ADR Unit or when she returned to the Legal Unit.
Claims of Disparate Treatment
The Agency assumed, arguendo, that Complainant established a prima facie case of discrimination on the bases of disability, age, and reprisal with respect to her claims of disparate treatment.
With regard to Complainant's assertions that she was treated disparately with respect to her telework schedule while on a detail in the ADR Unit, the Agency stated that ADRP was initially unaware of Complainant's accommodation and then, once informed, considered the possibility of finding an accommodation for Complainant that would be more appropriate for the ADR Unit. With respect to her "slide and glide" schedule, ADRP notified Complainant by a May 22, 2008 memorandum that as an employee on an AWS, she would not be eligible for the "slide and glide" benefit afforded other employees who were not on AWS.
The Agency found that Complainant failed to establish that the reasons proffered by the Agency for its actions were a pretext for discrimination. The Agency noted that ADRP asked questions about both the appropriateness of Complainant's telework schedule in the ADR Unit and the ability of AWS employees to use "slide and glide." In both instances, however, ADRP took no action to change the status quo regarding Complainant. With respect to the May 22, 2008 "slide and glide" memorandum from ADRP, the Agency maintained that, even if the issuance of memorandum is interpreted as an adverse action, the reason for the issuance of the memorandum was not discriminatory, but rather was based on a misinterpretation or misunderstanding of the Agency's policy. As such, the Agency found that Complainant failed to establish that ADRP's actions were motivated by discriminatory animus.
Complainant also alleged disparate treatment when she returned to the Legal Unit. The Agency found however, that Complainant failed to provide persuasive evidence to support her claims of disparate treatment other than her assertions related to time and attendance. Complainant provided an example when she performed outreach and did not return to the office approximately an hour and a half after the scheduled conclusion of the event. The record revealed that STA2 called Complainant to ascertain her whereabouts. STA2 averred that she called Complainant due to her record of poor attendance. According to the Agency, Complainant provided no evidence that STA2's explanations were pretextual.
Accordingly, the Agency concluded that the record lacks evidence to support Complainant's claim of disparate treatment upon her return to the Legal Unit.
Claims of Harassment
The Agency found that Complainant failed to establish that she was harassed based upon age, disability, or reprisal. Specifically, the Agency found that she failed to show that the harassment complained of was based on her membership in these protected classes. The Agency also found that for every tangible employment action taken by management, the Agency articulated legitimate nondiscrimination reasons for its actions which Complainant failed to show were pretexual. Therefore, the Agency concluded that Complainant failed to prove that she was subjected to harassment based upon age, disability, or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in dismissing claim 1. Specifically, Complainant argues that the grievance she filed and the EEO complaint involved different matters, and that the denial of a reasonable accommodation was never raised in the grievance regardless of whether the Agency addressed it in its determination. Complainant also argues that she was denied a floating third day of telework that was never addressed, and that the FAD ignored that she had reached an agreement with the DPDO that she would be able to keep her accommodations prior to her accepting the detail to the ADR unit.
The Agency offers no arguments on appeal.
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 (MD 110), at Chapter 9, � VI.A. (November 9, 1999) (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").4
Complainant argues that the Agency erred in dismissing claim 1. Specifically, Complainant argues on appeal that the grievance she filed and the EEO complaint involved different matters and that the denial of a reasonable accommodation was never raised in the grievance, even though the Agency addressed it in its determination.
According to our regulations, an Agency shall dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination and the record shows that the complainant has elected to pursue the non-EEO process. 29 C.F.R. � 1614.107(a)(4).
The record reflects that with regard to claim 1, Complainant filed a grievance on April 20, 2007, regarding her removal from the flexiplace schedule. On the same day, Complainant requested a reasonable accommodation on the same matter. Although the Agency did not deny Complainant's accommodation request until a later date, the record reveals that the Agency addressed the accommodation issue in its grievance decision. Like the Agency, we find that the issue raised in the grievance is inextricably intertwined with the issue set forth in her subsequent EEO complaint. See Eitches v. Dep't of Housing and Urban Development, EEOC Appeal No. 0120080468 (Jun. 9, 2010). As such, we find that the Agency appropriately dismissed claim 1.
Additionally, regarding the FAD's alleged failure to address Complainant's request for a third floating day of telework, the record reveals that Complainant requested to be reinstated to the flexiplace program with her previous Alternative Work Schedule (AWS), as well as to be allowed to work from home for an additional day as needed. However, on June 12, 2007, Complainant was notified via letter of the dismissal of her accommodation request. We note that this is the same matter at issue in claim 1. Accordingly, we find that the Agency appropriately did not address the June 12, 2007 denial of the floating telework day because this claim was dismissed as stated above.
Complainant also argues that the FAD ignored that she had reached an agreement with the DPDO that she would be able to keep her accommodations prior to her accepting the detail to the ADR unit. As set forth above, however, there is nothing in the record that establishes Complainant was not permitted to keep her previous accommodations, i.e., two days of tele-work and usage of slide and glide, while on an approximately one month detail to the ADR unit. Consequently, we find that Complainant has failed to demonstrate that her accommodations were removed before she returned to the Legal Unit.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the FAD finding that Complainant failed to establish that she was discriminated against or harassed as alleged.5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__5/7/15________________
Date
1 Here, the U.S. Equal Employment Opportunity Commission is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with the in-house processing and resolution of discrimination complaints. For this decision, the term "Commission" will refer to the adjudicatory authority and the term "Agency" will refer to the respondent party in this matter. The Chair has recused herself from participating in the appellate processing of this case.
2 The Agency found that Complainant used the restroom at least fifteen (15) times per day with diarrhea. Additionally, she had stomach cramps and bloating prior to the diarrhea and must reach the restroom within five minutes of the onset of these symptoms, as they signal the onset of diarrhea.
3 On September 24, 2007, pursuant to the Grievance Decision, DPC requested from Complainant a medical release, which was provided on September 26, 2007. On October 2, 2007, DPC sent a letter concerning Complainant's medical condition to Dr. P. with specific questions. Dr. P. responded on October 26, 2007, providing detailed responses not previously articulated.
4 With regard to those claims not specifically raised on appeal, we find that the FAD correctly found no discrimination and we need not further address them herein.
5 In reaching the decision above, the Commission has assumed, for the purpose of analysis, that Complainant was an individual with a disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
2
0120100802