0120170618
03-29-2018
Margaret M.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margaret M.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120170618
Hearing No. 541-2015-00066X
Agency No. IRS140659F
DECISION
On October 31, 2016, 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 28, 2015, 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., 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), 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether Complainant established that she was discriminated against when she was denied various requests for accommodations for her alleged disabilities.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a seasonal Tax Compliance Officer, GS-0501-9, at the Agency's Internal Revenue Service facility in Denver, Colorado.
On December 30, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (over 40), race (mixed), national origin (USA), sex (female), religion (Jewish), color (mixed), and disability when the Agency denied various requests for accommodations.
The Agency accepted the complaint for investigation.
In the record developed during the investigation, Complainant described her disabling conditions to include traumatic brain injury, legal blindness, service-connected PTSD, social phobia, tremors, service-connected low tolerance to surprise, physical assaults, rotator cuff tendinopathy, and speech impediments. She has been prescribed Atrovent, a medicated canned air that she asserted, without medical documentation, was highly explosive if not kept at a constant temperature of 77 degrees.
The record shows that Complainant was experiencing a very difficult time working in her position with the IRS. Numerous day-to-day interactions with her co-workers and taxpayers caused her stress and negatively affected her ability to function in her job. As a result, Complainant made a series of accommodation requests to Agency management.
Complainant's first request was that the Agency modify its workplace policies to disallow "wing leads" (co-workers) from repetitively having "loud, offensive and hostile outbursts to include side conversations with malfeasance of their accomplice." The Agency responded to her request by stating that they monitor the work environment and are not aware of any loud, hostile or offensive outbursts by co-workers.
Complainant's second request was to modify her work schedule to reduce exposure to the "repetitive loud, offensive and hostile work environment." Complainant requested to be removed from the schedule and allowed time off. The Agency responded by granting her leave without pay from 12/19/13 to 3/10/14.
Complainant's third request was that the Agency should prevent retaliation, if any, for use of the reasonable accommodations. The Agency explained to Complainant that there should not be any retaliation for using reasonable accommodations, and that if Complainant believes that she has experienced retaliation, she should consult with her management or an EEO counselor.
Complainant's fourth request was to reassign the wing leads. The Agency explained that reassigning other employees is not considered a reasonable accommodation. Moreover, there was no medical documentation establishing the need for this request.
Complainant's fifth request was to reassign other IRS employees with her symptoms away from loud, sexually explicit and hostile outbursts. The Agency explained that requests for accommodations are for individuals, not groups of individuals with similar diagnoses, as each one may need a different accommodation. The Agency also explained that a reassignment is a "last resort" if an employee is not able to perform their basic job functions. Complainant has previously stated that she could perform her duties.
Complainant's sixth request was to modify workplace policies to accommodate illness absences dating back to March 2011. The Agency granted Complainant leave from December 19, 2013 through March 10, 2014, and March 24 through May 31, 2014, as these periods were supported by medical documentation.
Complainant's seventh request was to "notice the nexus of connection between request for reasonable accommodation and workplace injuries destroying rehabilitation efforts." The Agency advised Complainant to go through the workers' compensation process if she believed she had experienced a workplace injury. There was no evidence that Complainant followed up on this advice.
Complainant's eighth request was to "reassign, with submitted form 4536, to a vacant position for which there are certifications of eligibility and referrals to the Hiring Officials." The Agency explained to Complainant that reassignment is the last resort accommodation if accommodations could not be made in the current position. Complainant had said that she was able to perform the duties of her position.
The Agency further explained that if a job search was conducted under the non-competitive reasonable accommodation reassignment process, an equivalent position would be sought. For Complainant that would mean a seasonal position with promotion potential equal to her current positon. The positions cited by the Complainant were full-time, not seasonal, positions.
Complainant's ninth request was for the Agency to "reserve a copy of the 2014 document 6209 for review after [her] recovery." The Agency indicated it had already provided the document to Complainant upon her return from her absence.
After the Agency replied to Complainant's initial requests, Complainant came to the Agency with additional specific detailed requests. The Agency consistently responded to each one. Of note, Complainant sought to request an accommodation for service animals (Doberman Pinschers), an office-wide policy to keep the temperature at exactly 77 degrees to protect her medication, and the Agency providing her with a pseudonym. The Agency responded to each new specific request, generally indicating the requests were either not within the Agency's authority to grant or were not supported by appropriate medical documentation.
Complainant's documentation was frequently incomplete or missing signatures from the medical sources. For example, RA Form 13661 Part I, completed by Complainant, identified her medical conditions. However, medical documentation was not included. When medical documentation was provided by Complainant, it was often lacking relevant information. For example, Complainant submitted one form from a physician, answering the question: "Have you made a diagnosis that related to this reasonable accommodation request?" The response from the physician was: "No-previous physician. I saw her one time in the office." Another form indicates some medical diagnoses, but the physician indicated she was unsure what job functions Complainant could not perform because she was "unsure what her job entails." Agency staff requested that she provide a Federal Occupational Health (FOH) Authorization form. She did not submit the form. As a result, medical documents were not sent for FOH review.
Complainant submissions and statements were often not understandable. For example, when she was asked if she sought a reasonable accommodation for her medical condition and if so, what accommodation was she requesting, Complainant stated: "With all due respect and because of Complainant's medical demise, due to Service (i.e., Internal Revenue Service) connected conditions, please be reminded that a Complainant is not under an obligation to continually remind the Department of the Treasury of disabling conditions."
When Complainant was asked how the provided accommodation was ineffective or unacceptable, Complainant stated: "In particular, due to Service (i.e., Internal Revenue Service) connected medical conditions from physical assaults and harassments (see number six), the Complainant was prescribed off label use of Atrovent HFA, Xanax, and Propranolol, i.e., medicated canned air and performance drugs for PTSD/specific Social Phobia/Tremors to treat IRS employees with Occupational Disease, surgeons, and opera singers; of which, the Atrovent HFA is highly EXPLOSIVE under exposure to unstable temperature conditions, such as those at the Internal Revenue Service in and near the Complainant's official office, and not experienced by the entire 1st Floor, and for which are for actions of" (names of several managers) "a little faction within the Federal workforce; thenceforth, all four emphatically deny and cover-up the probability of EXPLOSIONS, by radical malfeasance and crafted deceptions, to the detriment of the American taxpaying public, working Service animals in the area, federal agents in the building [names of several individuals submitted] and the Complainant."
When asked why she believed that her disabilities were a factor in the alleged discrimination raised in her EEO complaint, Complainant stated "Please see IRS-14-0135-F." When asked why she believed her age was a factor in the alleged discrimination, Complainant stated "unknown". When asked why she believed her race was a factor in the alleged discrimination, Complainant stated that unlawful bias is prevalent in the official actions of several named managers and co-workers. When asked why she believed her color was a factor in the alleged discrimination, Complainant stated that "racism is prevalent in the official actions" of several named managers and co-workers. When asked why she believed her religion was a factor in the alleged discrimination, Complainant stated that she was uncertain why her Jewish religion was not separated from her official affairs in the U.S. Government. She continued by stating a previously referenced employee "did deny his known Islamic Brotherhood membership, when searched for by the Complainant during his extra prayer breaks. Moreover, he made disparaging remarks about the Complainant's kosher food contribution to IRS potlucks, some of which was poisoned with 'street drugs' in a controlled access area of the IRS." When asked why she believed her sex was a factor in the alleged discrimination, Complainant stated that she was certain that women in America are treated as second class citizens. When asked why she believed her national origin was a factor in the alleged discrimination, Complainant stated, "Because of the collective narcissism and deep seated hostility based on historical injustices, anti-American sentiments are prevalent in the official actions" of several named managers and co-workers. When asked why her prior EEO complaint activity was a factor in the alleged discrimination, Complainant stated that she observed and raised official concerns of waste, fraud, and abuse by several named managers and co-workers.
Complainant mentioned several times that she is capable of performing the duties of her position, however what she called "triggers" would need to be removed or she would need to be relocated so that she would not be near them or pass by them. She was asked to provide documentation to assist management in better understanding these triggers. In one request, dated May 21, 2014, she asked that IAR screen the Q-matic tickets, the system used for assisting customers in turn, to prevent exposure to triggers. Complainant was asked to identify the triggers she was talking about so that they might have a better idea if they could be identified, removed or if mitigating measures could be taken. However, she stated that she was not able to articulate the triggers. When asked how management could screen them out if they are not visually identifiable, Complainant stated she was not able to answer the question or provide a visual description of a trigger.
Complainant said that the last taxpayer she had assisted was a trigger. She was asked how management might have identified him prior to her working with him, but she could not provide an answer. Complainant was also asked what about the person caused the trigger. Complainant said that it was the way he communicated. She said that he was difficult to understand and a co-worker, who may have known the taxpayer from the neighborhood, as they seemed to understand each other, had assisted. During this conversation, Complainant stated that she needed to have her desk moved so that she could avoid passing by triggers on the way to the printer and copier. However, management had told her that where she wanted to move was already set up as a remote kiosk for taxpayers to receive assistance. The space is equipped with the connectivity and machines required for that type of taxpayer contact. Complainant was asked to articulate the triggers she was referencing. She stated she was not able to, but noted that if she could not avoid the triggers, she would need to train her service animals to retrieve copies and prints.
In a conversation with Complainant's manager on May 30, 2014, he relayed that she had named two additional triggers and when asked what the trigger was, stated that they have "violent outbursts" that are causing the trigger. As with the allegations against her co-workers, the taxpayer and the two-additional people she named, they were all African-Americans.
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 Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing. She was not represented by counsel. After two pre-conferences, the AJ denied the hearing request because Complainant failed to demonstrate to him that she could successfully prosecute her case in a hearing. The AJ determined Complainant to be "mentally ill" and incapable of putting on a case.2 The AJ remanded the complaint to the Agency, and 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 her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant submitted a statement in support of her Appeal. Her submission is difficult to follow. It articulates theories and conspiracies concerning why the Agency and others are preventing her from obtaining her requested accommodations. Her statement also addressed several situations that were not an issue raised in this matter.
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").
Initially, it should be noted that a reading of Complainant's Appeal Statement, along with the facts in this case, demonstrate Complainant's lack of understanding of the law and the practices underlying the adjudication of employment discrimination law. There is little detailed evidence presented concerning Complainant's mental condition, apart from her statements, some very general medical documents, and the AJ's observations that Complainant would be incapable of presenting relevant, probative and admissible evidence that could lead to a legal conclusion in her favor. This case will be decided based on Complainant's comprehensible evidence and the Agency's responses.
Disparate Treatment - Denial of Requests for Workplace Accommodations
A claim of disparate treatment is usually 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (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, nondiscriminatory 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. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant claims that the denials of her requests for accommodations were based on her protected categories. However, she was unable to articulate the connection between her age (over 40), race/color (mixed), national origin (USA), sex (female), and religion (Jewish and her rationale for believing that those categories were a basis for discrimination. The Agency management witnesses provided legitimate, non-discriminatory reasons for each accommodation that it could not provide. Complainant failed to provide evidence that would demonstrate that the legitimate, non-discriminatory explanations by the Agency were pretext for discrimination. Further, for Complainant's requests that did not fall under the Agency's authority, Complainant was directed to the source for possibly obtaining those requests. Accordingly, we find that the Agency did not discriminate against the Complainant based on disparate treatment.
Disability - Denial of Reasonable Accommodation
The Agency is required to make reasonable accommodation 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. To establish a denial of reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. The Commission will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Assuming that Complainant is an individual with a qualified disability, the Agency either provided the accommodation, such as granting extended leave requests supported by medical documentation, directed Complainant to the source of other accommodations she sought, or provided evidence in the form of non-discriminatory explanations demonstrating that the requests by Complainant were either not supported by medical documentation, not reasonable or impossible. The record shows that in addition to granting her leave requests, the Agency provided Complainant with computer software and dual screen monitors to accommodate her vision impairment, the relocation of her cubicle, information on participation in a leave bank, and an agreement to perform a workplace climate assessment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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).
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
___3/29/18_______________
Date
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.
2 Complainant did not challenge to denial of a hearing on appeal. Therefore, we will not address this matter in this decision.
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