Jill M.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 2, 2018

0120151116 (E.E.O.C. Feb. 2, 2018)

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

Jill M.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120151116

Hearing No. 450-2014-00093X

Agency No. BOP-2013-0772

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s March 4, 2015 final order 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Assistant at the Agency’s Designation and Sentence Computation Center in Grand Prairie,
Texas. Complainant began working for the Agency in June 2012. On July 3, 2012, Complainant
failed to report to work for the start of her scheduled 7:30 a.m. to 4:00 p.m. shift. Complainant’s
supervisor (S1) attempted to contact Complainant and left several voicemails. Complainant
eventually contacted S1 at approximately 9:55 a.m., claimed that she was ill, and requested leave
for the rest of the day. S1 granted Complainant her last four hours of sick leave and two and a
half hours of annual leave in lieu of sick leave. S1 charged Complainant with absence without

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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leave (AWOL) for two and half hours because she failed to call in sick prior to the start of her
shift.

S1 subsequently noticed that Complainant was frequently using sick leave and annual leave in
lieu of sick leave. As a result, S1 initiated an audit of Complainant’s leave usage. The audit
revealed that Complainant had used approximately 67 hours of sick leave and 43.75 hours of
annual leave in lieu of sick leave since June 29, 2012. S1 determined that Complainant’s leave
usage was questionable based on Complainant’s usage of 110 hours of sick and unscheduled
leave in her first seven months with the Agency. S1 noted that seven days of leave was used in
conjunction with scheduled days off. As a result, on February 25, 2013, S1 met with
Complainant and issued her a sick leave restriction letter requiring Complainant to submit
medical documentation in support of any unscheduled leave usage for a three-month period.
During the meeting, Complainant indicated to S1 for the first time that she needed an ergonomic
keyboard and chair. S1 informed Complainant that she could request reasonable accommodation
in writing with medical documentation in support of the request. During the three-month sick
leave restriction period, S1 continued to approve Complainant’s use of sick leave, annual leave,
and annual leave in lieu of sick leave. Complainant successfully completed the three-month
period and was no longer required to provide medical documentation when she utilized leave.

On March 29, 2013, Complainant received a letter proposing to suspend her for one day for the
July 2012 AWOL. Complainant responded orally to the proposed suspension, but management
believed that she failed to give an acceptable explanation for why she did not call in prior to the
start of her shift. Nonetheless, on May 13, 2013, Complainant’s third-level supervisor, the Chief,
issued a decision letter mitigating the proposed suspension down to a letter of reprimand.

On July 2, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the basis of disability (Bipolar Disorder, Obsessive Compulsive Disorder, Major
Depressive Disorder, migraine headaches, endometriosis, back and neck strain, Carpel Tunnel
Syndrome, and Post Traumatic Stress Disorder) when:

1. On February 25, 2013, she was issued a letter of reprimand regarding sick leave
abuse; and

2. On May 13, 2013, she received a letter of reprimand and was charged with
AWOL status.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on February 11,
2015.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and determined that the Agency had articulated legitimate, nondiscriminatory
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reasons for its actions. The AJ concluded that Complainant failed to show that the Agency’s
reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been
subjected to discrimination as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the
Agency. Complainant alleges that she was singled out and punished for her leave usage in a
discriminatory manner. Further, Complainant claims that management officials were aware of
her disability. Complainant argues that the circumstances that led to her July 2012 AWOL
charge and letter of reprimand constituted an “emergency situation” that should have been
excused. Finally, Complainant claims that management officials provided conflicting statements
and that their reasons for their actions have been shown to be pretextual. As a result,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the
outcome of the case. The Commission finds that the AJ properly issued summary judgment as
the material facts are undisputed.

Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant’s disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999);
Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order to
establish a prima facie case, Complainant must demonstrate that: (1) she is an “individual with a
disability”; (2) she is “qualified” for the position held or desired; (3) she was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons
were a pretext for discrimination. At all times, Complainant retains the burden of persuasion,
and it is her obligation to show by a preponderance of the evidence that the Agency acted on the
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basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that Complainant failed to present evidence to rebut the
Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically, as to claim
(1), S1 stated that he issued Complainant the leave restriction letter requiring her to provide
medical documentation in support of her absences based on her unacceptable pattern and
exhaustion of sick leave. ROI, at 161-62. S1 noted that Complainant had used 67 hours of sick
leave and 43.75 hours of unscheduled leave since June 2012, and that several of these
occurrences occurred in conjunction with her scheduled days off. Id. at 165, 213. S1 explained
that he issued the leave restriction letter as normal protocol for any employee who had exhausted
all sick leave. Id. at 166. S1 added that Complainant completed the 90-day sick leave restriction
period and she was no longer required to provide documentation. Id. at 178.

With respect to claim (2), S1 affirmed that, on June 28, 2012, Complainant failed to notify him
prior to the scheduled start of her shift that she would be unable to report to work. ROI, at 169.
S1 noted that Complainant did not have sufficient sick leave to cover the entire shift and she had
a family member call to report her absence. Id. S1 stated that when Complainant returned to
work on June 29, 2012, he explained the Agency’s leave procedures again although she had been
trained on the procedures previously. Id. On July 3, 2012, Complainant again failed to notify
him prior to the start of her scheduled shift that she would be unable to report to work. Id. S1
was not able to contact Complainant until around 10:00 a.m., and she was charged AWOL for
two and half hours. Id. at 263-64. S1 documented the incidents and informed the Chief of
Complainant’s attendance issues. Id. On March 29, 2013, the Section Chief issued Complainant
a proposed one-day suspension for being AWOL in violation of the Standards of Employee
Conduct on July 3, 2012. Id. at 258. Complainant provided an oral reply to the Chief on April
16, 2013. The Chief ultimately decided to issue Complainant a letter of reprimand for the July 3,
2012 AWOL. Id. at 287.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., 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. 248, 256 (1981).

In attempting to establish that the Agency’s reasons for its actions were pretextual, Complainant
does not dispute that she incurred the absences at issue; rather, she claims that management was
aware of her condition and its effect on her leave usage. While the record establishes that
Complainant may have been hired as a service-connected veteran, each management official
denied having any specific information about Complainant’s condition. Moreover, there is no
evidence in the record demonstrating that Complainant ever requested an accommodation for her
condition prior to the February 2013 meeting.

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Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant’s disability was a factor in any of the Agency’s actions.
Complainant’s subjective belief that the management actions at issue were the result of
discrimination is insufficient to prove pretext. 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 animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant has
not established that she was subjected to discrimination as alleged.

Finally, to the extent that Complainant claims that the Agency failed to provide her reasonable
accommodation, the Commission notes that an agency is required to make reasonable
accommodations to the known physical and mental limitations of an otherwise qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that
Complainant is a qualified individual with a disability.

Complainant has not demonstrated that management officials were aware of her impairments or
her need for accommodation. There is no evidence that Complainant requested a reasonable
accommodation prior to the February 25, 2013 meeting during which she requested an
ergonomic keyboard and chair. ROI, at 167. Complainant was informed that she should submit
the request in writing along with medical documentation in support; however, S1 stated that
Complainant failed to submit anything thereafter. Id. Complainant did not identify any
accommodation she needed or requested prior to this meeting. Accordingly, the Commission
finds that Complainant failed to establish that she was denied reasonable accommodation in
violation of the Rehabilitation Act.

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 order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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

February 2, 2018
Date