Melodee M.,1 Complainant,v.Margaret Weichert, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120172945 (E.E.O.C. Dec. 4, 2018)

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

Melodee M.,1
Complainant,

v.

Margaret Weichert,
Acting Director,
Office of Personnel Management,
Agency.

Appeal No. 0120172945

Hearing No. 531-2017-00197X

Agency No. 2016020

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 31, 2017
final agency decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-11, at the Agency’s Office of the Chief Information Officer in
Washington, District of Columbia.

On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability (multiple sclerosis) and in retaliation for protected EEO
activity when: (1) she received a less than “fully successful” performance appraisal for fiscal
year 2015; (2) on February 5, 2016, she was given notice that her telework days would be
suspended; (3) on February 5, 2016, her Agency-approved reasonable accommodation was not
honored when her supervisor informed Complainant that she needed to provide advance notice

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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prior to taking leave under the Family and Medical Leave Act (FMLA); and (4) on March 29,
2016, her request to telework on March 31, 2016 and April 1, 2016, were denied.

A letter from the Agency to Complainant, dated April 27, 2016, indicates Complainant’s claims
regarding her performance appraisal (claim 1) and the suspension of her telework privileges
(claim 2) were dismissed, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to initiate contact
with an EEO contact within 45 days of the alleged discriminatory event and pursuant to 29
C.F.R. § 1614.107(4), as Complainant raised the matter in a negotiated grievance procedure that
permits allegations of discrimination. The Agency accepted the remaining claims as to whether
the Agency subjected Complainant to discrimination based on disability and in retaliation for
prior protected EEO activity when, on February 5, 2016, her reasonable accommodation was not
honored and, on March 29, 2016, her request to telework was denied.

The Agency conducted an investigation, which revealed the following pertinent evidence.

In 2013, the Agency initially provided Complainant work equipment as a reasonable
accommodation for her disability.

On July 29, 2015, Complainant and her supervisor sent a series of emails addressing
Complainant’s request for additional accommodations relating to use of leave for doctor
appointments and arriving late or leaving early. Complainant indicated that she intended to use
FMLA to use leave intermittently when needed regarding her illness (i.e., requesting sick leave
for doctor appointments or arriving late or leaving early), and requested periodic additional
telework days as an accommodation to her disability.2

On December 24, 2015, the Agency’s Lead HR Specialist sent an email to Complainant
indicating that, based on a review of her accommodation requests performed by the Agency’s
physician, Complainant’s multiple sclerosis warranted a reasonable accommodation of
teleworking and late arrivals/early departures approximately one to two times per month.

An email from Complainant’s supervisor to Complainant, dated February 5, 2016, indicates that
Complainant was granted a reasonable accommodation of telework and late arrivals/early
departures, approximately one to two times per month. If Complainant wished to use this
accommodation, she was told to provide as much notice as possible, as is the normal practice for
requesting leave or unscheduled telework.

2 There are two types of telework at issue in this case. One type was available office-wide to
most employees and will to called “regular telework” in this decision. Like most employees in
the office, prior to the events at issue, Complainant had a regular telework schedule that was
unrelated to her disability. The other type is telework as a form of accommodation to
Complainant’s disability and will be called “accommodation telework.”
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The Agency’s telecommuting/telework policies indicate approval for telecommuting is granted
on a case by case basis, but was not appropriate for employees who are performing at less than
the “fully successful” level.

The Agency’s management had approved Complainant to participate in regular telework on three
days per week. However, Complainant received a less than “fully successful” rating during her
annual performance review for fiscal year 2015. The February 5, 2016 email from Complainant’s
supervisor to Complainant indicates that, effective February 22, 2016, Complainant was
temporarily ineligible for telework based on her fiscal year 2015 performance rating, dated in
October 2015. Complainant addressed the matter of her suspended telework in a negotiated
grievance procedure.

On March 23, 2016, Complainant requested to telework on March 31, 2016 and April 1, 2016,
due to the Nuclear Security Summit in Washington, District of Columbia. Her supervisor denied
this request as she was not eligible for telework at this time, but gave Complainant the option of
taking unscheduled annual leave for those two days.

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 but the
AJ dismissed the hearing request on the grounds that she had failed to notify the Agency of her
request for a hearing. The AJ remanded the complaint to the Agency, and the Agency issued a
FAD 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

On appeal, Complainant asserts that her Agency-approved reasonable accommodation was not
honored when her supervisor informed her via email, on February 5, 2016, that she required
notice of her using FMLA leave, as this was not required by others and was only directed
towards her; her less than “fully successful” rating was not warranted; and the suspension of
telework was in retaliation for her approved reasonable accommodations. Her approved
reasonable accommodations allow her accommodation telework.

The Agency has not submitted a brief or argument in response.

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).
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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”).

As an initial matter, with respect to Complainant’s allegations relating to her 2015 annual
performance review and the suspension of her regular telework privileges, we find that these
claims were dismissed by the Agency, pursuant to 29 C.F.R. § 1614.107(a)(4), as Complainant
raised these matters in a negotiated grievance procedure that permits allegations of
discrimination. Complainant did not challenge this dismissal on appeal and we will not address
these issues further in this decision. Therefore, we will only address claims 3 and 4 on their
merits.

Reasonable Accommodation – Claim 3

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to its
operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (October 17, 2002); Barney G. v. Department of
Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). There is no question that
Complainant is a qualified individual with a disability, who could perform the essential functions
of her position. See 29 C.F.R. § 1630.2(m). There is also no question that the approved a number
of accommodations for Complainant, including work equipment, intermittent accommodation
telework and periodic late arrivals/early departures. While Complainant is entitled to an effective
reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v.
Department of Justice -- Bureau of Alcohol, Tobacco, Firearms & Explosives, EEOC Appeal
No. 0720140010 (December 3, 2015).

With respect to the allegation that Complainant’s reasonable accommodations were not honored
when Complainant’s supervisor indicated that she required advanced notice of leave or
accommodation telework, the record establishes that the advance notice request was consistent
with the Agency’s FMLA regulations, and Complainant has not indicated any hardship in
providing the advanced notice as it appears she used the accommodations for medical
appointments, which were usually scheduled in advance. Moreover, Complainant’s supervisor
clearly indicated this requirement did not apply to emergency situations, and Complainant has
not pointed to an emergency situation related to her disability where a request for telework or a
late arrival/early departure was improperly denied. As such, we conclude Complainant has
failed to establish an unlawful denial of reasonable accommodation in claim 3.

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Disparate Treatment – Claim 4

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine.
450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, non-discriminatory reasons for its actions. With respect to
Complainant’s request to telework during the 2016 Nuclear Summit, the record establishes that
Complainant was under a temporary suspension of her regular telework privileges during this
time due to her rating of less than fully successful in her most recent performance appraisal. The
allowance of telework for situations involving her multiple sclerosis, as a reasonable
accommodation, did not apply to this request, as the request was not related to Complainant’s
disability, but was related to the travel challenges associated with the Summit. Complainant has
not established by a preponderance of the evidence, that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by
some unlawful discriminatory animus.

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.
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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

December 4, 2018
Date