Harmony E.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Nov 2, 2016

0120150124 (E.E.O.C. Nov. 2, 2016)

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

Harmony E.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.

Appeal No. 0120150124

Agency No. BOR-13-0280

DECISION

The Commission accepts Complainant’s appeal from the September 10, 2014 final Agency
decision (FAD) 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., 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’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
(HR) Assistant at the Agency’s Bureau of Reclamation facility in Denver, Colorado. As an
HR Specialist, Complainant was responsible for registering employees for training classes;
entering and maintaining course information in the Agency’s Learning Management System;
and providing general administrative support to the Training team. In March 2011,
Complainant suffered an on-the-job injury. Complainant subsequently took a lower-graded
position in November 2012, with a part-time schedule as a result of her physical and mental
conditions. Complainant was unable to work full-time and had been working 32.5 hours per
week.

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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On April 18, 2013, Complainant’s supervisor (S1-1) informed her that her work hours would
be reduced to 32 hours because she was working an illegal schedule pursuant to the applicable
regulations. S1 provided Complainant the option to increase her work hours to 40 or reduce
her schedule to 32. Complainant claims that she requested time to make a decision regarding
whether or not to change her work schedule. Complainant believed that the minimum work
hours had to be 32.5 hours per week to maintain the same premium rate for health insurance
and other benefits.

In May 2013, Complainant was transferred to a new supervisor (S1-2) as part of a general re-
organization. S1-2 learned of the problem related to Complainant’s schedule and met with
Complainant on June 27, 2013, to discuss it and a request she had submitted to maintain the
32.5 hour schedule. S1-2 learned that Complainant’s medical documentation restricted her
from working no more than six hours a day and five days a week, or 30 hours. S1-2 requested
updated medical documentation that could support more hours per week. Complainant
subsequently went out on leave. Complainant was approved for Family Medical Leave Act
(FMLA) coverage through December 13, 2013.

On August 27, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color
(Brown), disability, age (52), and in reprisal for prior protected EEO activity when on or about
April 18, 2013, she was informed that her work hours were going to be reduced from 32.5
hours to 32 hours which would affect her health premiums.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1-1 stated that he informed
Complainant that her schedule needed to change because he had been notified by HR that it
was illegal. The Agency determined that 5 C.F.R. § 340.202 defined part-time work as
regularly scheduled work from 16 to 32 hours per week. S1-1 knew Complainant’s schedule
was important to her and requested that HR research the problem before he informed
Complainant of the problem. After receiving confirmation that Complainant’s schedule
violated the Office of Personnel Management’s rules and regulations, S1-1 informed
Complainant of the problem and offered her the option of changing her schedule to 32 hours or
40 hours to comply with the requirements.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant claimed that other employees worked the same 32.5 hour scheduled she did. The
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Agency noted that S1-1 confirmed that Complainant was the only employee on the 32.5 hours
per week schedule. In addition, Complainant could not provide any other information or
evidence in support. As a result, the Agency found that Complainant failed to show that
management’s reasons for its actions were pretext for unlawful discrimination or reprisal.

Finally, the Agency noted that, while Complainant had not raised a claim of failure to
accommodate, her claim arose from a change to an existing accommodation. Next, the
Agency assumed Complainant was an individual with a disability and found that management
did not fail to accommodate Complainant. On April 11, 2013, after determining that
Complainant’s schedule was impermissible, management offered Complainant the choice of a
32 or 40-hour schedule. Complainant twice requested additional time to respond. Further,
after many discussions, Complainant was permitted to retain her 32.5 hour schedule “until
further notice.” The Agency found that management had engaged in the interactive process in
good faith until Complainant later unilaterally ended the process. Accordingly, the Agency
found that Complainant had not been unlawfully denied reasonable accommodation. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant submits new evidence she claims supports her claim that she was
discriminated and retaliated against. Complainant claims that she was the only employee told
that she was working an illegal schedule. Complainant alleges that the Agency is awaiting a
clarification of the regulations, which leaves her in limbo. Complainant expressly denies that
that reasonable accommodation is at issue in this case. Accordingly, Complainant requests that
the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission notes that Complainant submitted new evidence
previously not submitted during the investigation. It is well established that no new evidence
will be considered on appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation or during the hearing process. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110)
(rev. Aug. 5, 2015), at 9-17. Complainant has not proffered an explanation for why such
exhibits were not previously available. Accordingly, the Commission will not consider it for
purposes of this decision. In addition, as Complainant explicitly stated in her appeal that she
was not asserting a denial of reasonable accommodation claim, the Commission will not
address that issue in this decision.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
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that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that Complainant failed to present evidence
to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, S1-1
stated that he was informed by the HR staff in March 2013 that Complainant’s 32.5 hour
schedule was against regulations. ROI, at 99. S1-1 met with Complainant to discuss the
situation and provide her the option of switching to a 32 or 40-hour schedule. Id.
Complainant requested additional time to decide, and before S1-1 could do anything further,
Complainant was transferred to another supervisor as part of a re-organization. Id. at 100.
After transferring, S1-2 requested updated medical documentation to support Complainant’s
request for a 32.5-hour schedule. Id. at 52, 246. Complainant submitted documentation;
however, the record indicates that there was a discrepancy in some of the documentation
Complainant submitted. Id. at 284-89. Nonetheless, the record reveals that Complainant’s
medical documentation did not support her request for 32.5 hours per week. Id. at 216, 265.
Complainant subsequently went out on FMLA-protected leave without pay. Id. at 212-14,
225-28.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

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. The
Commission finds no evidence that Complainant's protected classes were a factor in any of the
Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons were not the real reasons and
that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established
that she was subjected to discrimination or reprisal as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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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

November 2, 2016
Date