Melodee M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120142484 (E.E.O.C. Apr. 8, 2016)

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

Melodee M.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142484

Agency No. 200J-0330-2013102296

DECISION

Complainant filed an appeal from the Agency’s May 21, 2014 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

Complainant worked as a Veterans Service Representative at the Agency’s Regional Office in
Milwaukee, Wisconsin. She was diagnosed as having multiple physical and mental disabilities
such as hearing and visual impairments, musculoskeletal and gastrointestinal conditions, and
post-traumatic stress disorder. Investigative Report (IR) 112-13, 129, 143, 156-67, 363-78.
She was granted a number of accommodations by her second-level supervisor, the Assistant
Veterans Service Center Manager (S2), including: a seat at the front of the room for training
and team meetings with written summaries and materials provided to her as needed; adjustment
of the resolution on her computer monitor; a special keyboard; a flexible tour of duty that
allowed her to arrive between 6:00 AM and 9:00 AM as well as extended breaks; a quiet
cubicle with convenient printer access; and use of her own chair that she used as an
accommodation in her previous duty station. IR 132, 145-46, 175, 193-94.
1This 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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Nevertheless, on June 23, 2013, Complainant filed an EEO complaint in which she alleged that
S2 had discriminated against her on the basis of her disabilities and retaliated against her for
previous EEO activity by denying her request to be reassigned to a different supervisor on
March 29, 2013. She characterized S2’s decision as a failure to provide her with a reasonable
accommodation. Her complaint included a second allegation, that on May 22, 2013, she was
constructively discharged. On May 16, 2014, the Agency issued its final decision finding no
discrimination on both claims. The decision set forth two sets of appeal rights: the right to file
a mixed-case appeal with the MSPB on the constructive discharge claim and the right to appeal
the denial of reasonable accommodation to the Commission.

ANALYSIS AND FINDINGS

We will address Complainant’s reprisal claim first. The Commission cannot second-guess an
Agency’s personnel decisions unless there is evidence of a discriminatory motivation on the
part of the officials responsible for making those decisions. See Texas Department of
Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). In a reprisal claim, Complainant
can establish the existence of a retaliatory motivation by presenting documents or sworn
testimony from other witnesses tending to show that the reason articulated by S2 for denying
her reasonable accommodation request was a pretext. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993). 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. United States Postal Service, EEOC Appeal No.
0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008).

When asked by the investigator why she believed that her previous EEO activity was a
motivating factor in S2’s denial of her reasonable accommodation request. Complainant
responded that she had already been approved for reasonable accommodations at her prior duty
station, and that S2 failed to honor her accommodations. IR 116-17. Beyond this assertion,
Complainant has not submitted any sworn statements from other witnesses or documents that
contradict the explanation provided by S2 that she had been accommodated in several ways, or
which call S2’s veracity into question.

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 multiple disabilities who could perform
the essential functions of her position as a Veterans Service Representative. See 29 C.F.R. §
1630.2(m). There is also no question that S2 provided Complainant with several reasonable

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accommodations, including a flexible tour of duty and a cubicle near a printer. 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). Here,
Complainant is essentially asking to be reassigned. The Commission has long held that
reassignment is the reasonable accommodation of last resort and is required only after it has
been determined that there are no effective accommodations that will enable Complainant to
perform the essential functions of her current position or all other reasonable accommodations
would impose an undue hardship. Zachary K. v. Department of Veterans Affairs, EEOC
Appeal No. 0120130795 (November 19, 2015) citing EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC Notice No. 915.002 (October 17, 2002). Complainant in this case has not submitted
any sworn statements or documents tending to show that the accommodations with which she
was provided were in any way ineffective or would cause an undue hardship. Consequently,
we find that the Agency fulfilled 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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.

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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

April 8, 2016
Date