Danita P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120173041 (E.E.O.C. Dec. 13, 2018)

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

Danita P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120173041

Agency No. 2004-0658-2017100181

DECISION

On September 14, 2017, 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
September 8, 2017 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant
(Voucher Examiner) at the Agency’s Medical Center in Salem, Virginia.

On November 22, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her based on disability (service-connected disability, Systemic Lupus
Erythematosus, and Major Depression) and reprisal (prior protected EEO activity) when:

1. on September 12, 2016, the Agency charged Complainant 3.50 hours of
leave without pay (LWOP) rather than annual leave (AL),

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. on February 15, 2017, the Agency denied Complainant’s request for
LWOP for February 9-10 & 13, 2017, and

3. on April 28, 2017, the Supervisory Claims Assistant (S1) admonished
Complainant for absence without leave (AWOL).

The Agency accepted Complainant’s complaint for investigation.

Investigation

During the investigation, for claim (1), S1 stated that a member of management approved
Complainant’s request for LWOP in the morning and annual leave in the afternoon for
September 12, 2016. S1 stated that the office timekeeper erroneously processed the leave as
LWOP for the entire day and she offered to correct the mistake, but Complainant declined the
offer. As to claim (2), S1 stated that Complainant exhausted her annual leave, sick leave and
Family and Medical Leave Act (FMLA) leave and the Agency charged her AWOL because she
did not have medical documentation on record to support absences for those three days.
Regarding claim (3), S1 stated that Complainant’s last day at work was February 7, 2017. S1
stated that she sent Complainant a return to work letter to inform her of her options after an
extended absence. S1 stated that requests for reasonable accommodation are handled by
Workforce Management. Also, S1 noted that Complainant’s request for leave and payroll entries
for leave tended to be inconsistent.

An Acting Section Chief (S2) stated that the Agency granted Complainant a reasonable
accommodation of 100% telework since the end of 2014. A Supervisory Program Analyst (S3)
stated, in addition, Complainant had FMLA to supplement her teleworking. S3 stated, on May 2,
2017, Complainant completed the required reasonable accommodation documentation, and, on
May 4, 2017, she completed the interactive process with Complainant. S3 stated that
management did not receive a request for additional accommodation until May 2, 2017, and
without necessary documentation beforehand, S1 did what was best with the information that
was available. S3 stated that denials of leave requests are done in coordination with Employee
Relations/Labor Relations. S3 stated that Complainant failed to report to work for a long period
of time, at times without notification, although she indicated that she would report.

In pertinent part, the record includes the following documentation.

▪ A payroll preview printout, dated September 20, 2016, showing that the Agency
charged Complainant LWOP for 9:00 a.m. to 12:30 p.m. and 1:00 p.m. to 4:30
p.m. on September 12, 2016.

▪ An email, dated September 30, 2016, from Complainant to management stating
that her leave was misapplied for September 12 and asking that it not correct the
error because she used the leave later in September instead.

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▪ An email from the office timekeeper apologizing for an error for September 12,
2016 and stating that Complainant did not want a correction done because she
used the annual leave on a different date.

▪ An FMLA Certification of Health Care Provider, dated June 16, 2016, stating
that Complainant’s medical condition is for a “lifetime” and “[f]lare ups are
debilitating and unpredictable.” Also, the physician stated that Complainant may
need flexible work hours for flare ups and medical appointments and treatment.

▪ A letter, dated February 23, 2017, from S1 informing Complainant that she has
exhausted her FMLA leave (480 hours) and that her excessive absences from
work “negatively impact [the Agency’s] ability to provide world class customer
service to its veterans.” The Agency listed request for accommodation,
resignation, disability retirement, return to work and the Employee Assistance
Program as options.

▪ A proposed admonishment, dated April 4, 2017, charging Complainant as
AWOL. The admonishment cited ten instances of AWOL between February and
March 2017. The Agency sustained the proposal on April 28, 2017.

▪ A request for accommodation, dated April 18, 2017, for alternative work
schedule (flexibility in start and end times).

Post-Investigation

Following an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
or an immediate final agency decision. In accordance with Complainant’s request, on September
8, 2017, the Agency issued a final decision. The decision concluded that Complainant failed to
show that the Agency’s actions were based on discriminatory motives as she alleged. The instant
appeal from Complainant followed. On appeal, Complainant stated that the Agency failed to
engage in the interactive process.

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”).
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Disparate Treatment and Hostile Work Environment

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 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

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, non-discriminatory reason for the personnel action
at issue, 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on disability and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for
its actions. The Agency stated, for (1), an Agency timekeeper entered Complainant’s request for
four hours of LWOP and four hours of annual leave on September 12, 2016 as eight hours of
LWOP in error. The Agency stated that the timekeeper apologized and offered to correct the
mistake, but Complainant declined. Regarding (2), the Agency stated that Complainant
exhausted her annual leave, sick leave and FMLA leave, and the Agency charged Complainant
AWOL because she did not have medical documentation on record to support absences for that
time-period. As to (3), the Agency stated that Complainant last worked on February 7, 2017 and
several months later it sent Complainant a return to work letter to inform her of her options. It
stated that Complainant failed to report to work for an extended period, although, at times she
indicated that she would report. The Agency noted that it granted Complainant a reasonable
accommodation of 100% telework since the end of 2014 and she used FMLA leave to
supplement her telework. Additionally, the Agency stated, on May 2, 2017, Complainant
completed additional reasonable accommodation documentation, and, on May 4, 2017, she and
the Agency engaged in the interactive process.
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We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext
designed to conceal discriminatory animus toward Complainant's protected classes.

Further, to the extent Complainant alleged that the actions discussed in (1) through (3) created a
hostile work environment, we conclude that a finding of harassment is precluded by our
determination that Complainant failed to establish that those actions were motivated by
discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

Reasonable Accommodation

Under the Commission's regulations, 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(o)
and (p).

After receiving a request for reasonable accommodation, the employer should engage in an
informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation. See 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 (October 17, 2002); see
also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012).
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No.
01931005 (February 17, 1994).

Assuming, without finding, that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency
failed to reasonably accommodate her when it entered her annual leave as LWOP, denied
Complainant’s request for LWOP, and admonished Complainant, citing AWOL.

Complainant argues that the Agency failed to engage in the interactive process. The
Commission's precedent establishes that an agency cannot be held liable solely for a failure to
engage in the interactive process. Liability for a failure to engage occurs when the failure to
engage in the interactive process results in the agency's failure to provide reasonable
accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106
(September 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole
purpose of the interactive process is to facilitate the identification of an appropriate reasonable
accommodation, and an agency's failure to engage in this process does not give rise to a separate
cause of action because the interactive process is not an end in itself. Broussard, EEOC Request
No. 05A30114. The record does not indicate that a failure on the Agency's part to engage in the
interactive process caused the denial of accommodation here.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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).
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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 (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

December 13, 2018
Date