Garrett B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162089 (E.E.O.C. May. 16, 2018)

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

Garrett B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120162089

Agency No. OCFO-2014-00188

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 24, 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 AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as an Accounting Technician, GS-0503-07, within the Controller Operations
Division in New Orleans, Louisiana. On April 14, 2014, Complainant filed an EEO complaint in
which he alleged that the Supervisory Systems Accountant who served as his first-line supervisor
(RMO1), the Branch Chief who served as his second-line supervisor (RMO2), and a Workers’
Compensation Specialist within the Human Resources Office (RMO3) had discriminated against
him on the basis of disability (Arthritis, Residual effects of hip replacement surgery). Specifically,
he alleged:

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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1. On December 9, 2013, RMO1 and RMO2 subjected him to disparate treatment and
harassment by issuing him a notice of a proposed 14-day suspension, which he
served beginning on April 3, 2014; and

2. On unspecified dates, RMO1, RMO2, and RMO3 failed to provide him with a
reasonable accommodation.

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 EEOC 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.

Incident (1): In a letter dated December 9, 2013, RMO1 informed Complainant of a proposal to
suspend him for fourteen days. The charges cited in support of the suspension included making
an incorrect entry on an official document, being absent without leave, and submitting inaccurate
time and attendance records. The suspension was upheld and took effect on April 3, 2014.
Complainant averred that his disability was a factor in his receiving the suspension because the
errors on his time and attendance were related to his medical condition. RMO1 averred that he
had consulted with various management and human resource officials and was told to prepare an
evidence file and gather all information relevant to the suspension proposal. He also averred that
Complainant had received a proposed suspension because he had made seven inaccurate time and
attendance submissions, even though he had been warned in September 2013 that he could be
subjected to disciplinary action if he continued to make those errors. RMO2 averred that he made
the decision to uphold the suspension after reviewing the file prepared by RMO1 and consulting
the Human Resources office. He noted that Complainant was suspended for inaccurate data entry
on an official document and being charged with absence without leave as well as for his time and
attendance errors. RMO3 had corroborated that Complainant had reported that he had signed out
at 3:00 p.m. to attend a doctor’s appointment, when in actuality he had signed out at 1:00 p.m.

Incident (2): Complainant averred that he had made reasonable accommodation requests through
verbal and electronic means but did not specify the dates on which he allegedly made those
requests. He averred that he had requested assistance preparing his time sheets, but that no
assistance was provided. RMO1 averred that in March 2014, following hip replacement surgery,
Complainant had submitted a request that he be allowed to telework as a reasonable
accommodation. RMO1 stated that Complainant had followed the appropriate procedures for
presenting his request, and that his request telework was approved immediately. RMO1 averred
that he did not receive a reasonable accommodation request from Complainant regarding his time
and attendance records.

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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”).

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). This analysis applies to disparate treatment claims brought under the Rehabilitation Act.
Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981). As a first step, he would
establish a prima facie case by demonstrating that he was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with in this case, however, since RMO1 articulated
legitimate and nondiscriminatory reasons for proposing to suspend Complainant. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). RMO1 had set forth his reasons for
initiating the suspension proposal in the letter: false entry into an official document; errors in time
and attendance records after being warned about the situation; and absence without leave.

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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008). In this case, Complainant has not submitted affidavits, declarations, or sworn
statements from witnesses other than himself nor documents which contradict the explanations
provided by RMO1, RMO2, or RMO3, or which calls their veracity into question. We therefore
agree with the Agency that Complainant has not presented enough evidence to establish that any
of the officials involved in his 14-day suspension were motivated by unlawful considerations of
his disability.

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Moreover, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
Complainant’s claim of discriminatory harassment must fail. See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work
environment is precluded by our determination that Complainant failed to establish that any of the
actions taken by the Agency were motivated by discriminatory animus on the basis of disability,
as alleged. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Turning now to the second incident, we note that the Agency incorrectly analyzed Complainant’s
claim pertaining to that incident as a disparate treatment claim. In actuality, Complainant had
raised a claim that the Agency failed to provide him with a reasonable accommodation. Agencies
are required to reasonably accommodate the known limitations of qualified individuals with
disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015). For purposes of rendering this decision, we
will assume, without finding such, that Complainant is a qualified individual with a disability. As
such, Complainant would be entitled to an effective accommodation, but not necessarily the
accommodation of his choice. Kristie D. v. U.S. Postal Service, EEOC Appeal No. 0120160236
(Feb. 6, 2018). According to RMO1 and RMO3, Complainant had undergone hip replacement
surgery and in March 2014, had requested and was immediately granted the privilege of
teleworking as a reasonable accommodation. Although Complainant averred that he had requested
assistance in the completion of his time and attendance records, neither RMO1, RMO2, nor RMO3
could recall that he had ever made such a request. As Complainant chose not to request a hearing,
the Commission does not have the benefit of an Administrative Judge’s credibility determinations
after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the
evidence presented. Based upon that evidence, we find that the Agency had satisfied its obligation
to provide Complainant with a reasonable accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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
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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.

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.
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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

May 16, 2018
Date