Nathan S.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Oct 19, 2018

0120171076 (E.E.O.C. Oct. 19, 2018)

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

Nathan S.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120171076
Agency No. 16-04-055

DECISION

On January 10, 2017, 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
December 19, 2016, final decision concerning his 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that he was subjected to unlawful disparate treatment by the
Office of Inspector General (OIG) based on race (African American/Black) and/or sex (Male),
when his telework privileges were suspended and he was subjected to discipline for not attending
two work-related events.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst GS-
0343-13 at the Agency’s OIG facility in Atlanta, Georgia. On February 10, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against him as set forth above. The
Agency explained that its actions were legitimate and consistent with existing policies; and that
there was no discriminatory animus involved.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, 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 him to discrimination as alleged.

Complainant alleged that the Agency intentionally discriminated against him by denying him
participation in the telework program even though he met all of the eligibility requirements
established by the Agency for teleworking, and he was in good standing in the office.

Complainant stated that on March 30, 2015, the Supervisory Auditor (SA) sent an email to all
members assigned to his team indicating she would be suspending telework for all members,
effective March 31, 2015. Complainant maintained that on October 19, 2015, when requesting
that his telework be restored, he was told that his telework privileges would not be restored because
he missed a 2014 Continuing Professional Education (CPE) training due to an injury, and because
he missed office visits from the Deputy Inspector General (DIG) and the Deputy Assistant
Inspector General for Audit (DAIGA) due to illness. Complainant noted that earlier in the year,
SA told him that he was on the DAIGA’s “list” because he did not attend the CPE training in 2014
and the office visits in 2015. Complainant indicated that other non-black employees in the
organization with the same eligibility status as his were allowed to resume teleworking.

SA stated that Complainant’s telework privileges were not suspended from March 30, 2015, to the
present. She maintained that she suspended all telework agreements, via an email on Monday,
March 30, 2015, for all team members assigned to project number 04-Pl5-002-03-315, because
their audit was completed; and that all team members assigned to this audit were instructed to
report to Atlanta, Georgia for work beginning on March 31, 2015. SA further noted that she
recommended that Complainant’s telework privileges be suspended through September 30, 2015,
because he failed to acknowledge that he had to report to the office for an All Hands Meetings
with senior executives who were visiting; he subjected a co-worker to harassment via email while
he was on sick leave; and because her trust in him was diminished when he claimed that he had
not received her telephone message requiring him to report to the office. She indicated that
Complainant remained unassigned to a project, despite her attempts to have him assigned to
another audit, and his telework privileges remained suspended pursuant to the Office of Audit
Policy. SA testified that Complainant was reassigned to another audit manager in November 2015,
and that it is her understanding his telework privileges were reinstated at that time.

SA testified that she did not tell Complainant that his telework was suspended because he missed
the 2014 CPE conference, or because he missed an office visit from the Deputy Inspector General
(DIG) and the Deputy Assistant Inspector General for Audit (DAIGA). SA stated that she told
Complainant his telework privileges were suspended because he was not complying with his
signed telework agreement. SA alleged that on March 23, 2015, she spoke with Complainant on
the telephone about reporting to the Atlanta office and the required travel for their audit. According
to SA, Complainant informed her that he would be requesting to be excused from the CPE
conference scheduled for July 2015, and that reporting to the office was a financial and physical
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hardship for him since he lives 100 miles away. SA testified that she provided Complainant with
the contact information necessary to request reasonable accommodations based on his statement
that reporting to the office would be a physical hardship.

On March 27, 2015, SA sent Complainant a follow-up email regarding the earlier discussion and
attached an email issued to all staff on March 20, 2015, setting forth the procedure to request to be
excused from the 2015 CPE conference. SA maintained that on April 2, 2015, she resent an email
to Complainant from January 9, 2015, which stated that staff who are unassigned or awaiting
assignments should not be teleworking and must report to their managers for work. SA stated that
she also provided this information during Complainant’s mid-year evaluation, but that he did not
look at the information and left it on her desk where she placed it in front of him.

SA explained that employees requesting telework privileges must complete telework training and
submit a copy of the certificate of completion with a telework agreement. SA testified that Audit
Managers can approve telework requests and that employees must comply with the telework
agreement to retain this privilege. She acknowledged that there is no legal requirement for
management to accommodate an employee’s requests to participate in telework and that Public
Law 111-292 requires agencies to have telework programs, but that nothing in that statute or in
IGD 4-600 that gives employees a right to telework. SA asserted that maintaining a telework
schedule is a privilege and a management option. She indicated that employees without an audit
assignment are not eligible for telework and that the Inspector General Directive and Telework
Agreement specify that the conditions of this agreement require employees to report to the
designated worksite when recalled.

SA testified that when Complainant was first assigned to the project she supervised, he was eligible
to telework. SA indicated that Complainant’s telework privileges, along with those of the other
members of their project, were suspended from March 30, 2015. According to SA, the reason for
the suspension of the team’s telework privileges was because the team submitted its project
document on March 19, 2015, and there was no further work to be assigned for the audit. In
response to Complainant’s allegation that a white female employee on Complainant’s team was
moved to another audit so she could get back on telework, SA testified that she had no role in
reassigning that employee. Specifically, SA asserted that the employee submitted paperwork
requesting a reasonable accommodation for a disability and that she was reassigned to other work
based on that request for an accommodation. SA testified that a supervisor cannot deny telework
to an otherwise eligible employee because of a disability or a need for an accommodation as a
result of the disability. According to SA, she provided Complainant with the same information as
the white female employee with regard to requesting reasonable accommodations, however,
Complainant informed her in November 2015, he did not need accommodations. SA declared that
Complainant's race and sex were not factors when his telework privileges were suspended.

Complainant requested that his telework privileges be reinstated, and that he no longer report to
SA. He also sought compensatory relief for a car accident, and expenses incurred while traveling
to work on days when he should have been teleworking.
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According to SA, Complainant was reassigned to another audit manager in November 2015, and
that it was her understanding his telework privileges were reinstated at that time.

CONTENTIONS ON APPEAL

Complainant stated in his appeal, among other things, that he refused to submit a sworn affidavit
because he was frustrated with the EEO complaint process.

The Agency contends, among other things, that its FAD correctly found that Complainant failed
to establish that he was subjected to unlawful discrimination on the basis of race or sex.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that he or she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. 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, 441
U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, the complainant must prove, by a preponderance of the evidence, that the
agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of race, and sex
discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. In this case, Complainant alleged that his telework privileges were suspended; and that
he was subjected to discipline for not attending two work-related events. SA stated that she told
Complainant his telework privileges were suspended because he was not complying with his
signed telework agreement. SA noted that she recommended that Complainant's telework
privileges be suspended because he failed to acknowledge that he had to report to the office for an
All Hands Meetings with senior executives who were visiting; because he subjected a co-worker
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to harassment via email while he was on sick leave; and because her trust in him was diminished
when he claimed that he had not received her telephone message requiring him to report to the
office. The Agency asserted that SA’s reasons were consistent with existing policies and that there
was no discriminatory intent, nor was Complainant disciplined for missing the work-related events
as being on telework was a privilege that he abused.

In an effort to show pretext, Complainant argued that a white female colleague was quickly
reassigned to a different audit so that she could continue teleworking while he and his black male
colleague were not allowed. However, SA indicated that she had no role in reassigning this
employee, and that she requested a reasonable accommodation for her disability through the
appropriate channels. The record also shows that SA provided information to Complainant on
how to request an accommodation but Complainant did not pursue that option.

Complainant also maintained that he received less favorable treatment than other employees when
he was unfairly disciplined for the two work-related events which he missed because he was on
medical leave. He stated that female employees (some of whom were also white) who missed the
events for the same reasons were not similarly disciplined. However, as indicated above, we find
no persuasive evidence that Complainant was treated differently than non-black and non-male
employees. The record indicates that all members of Complainant’s were required to return to the
office after a project was completed. Moreover, SA had specific reasons for why she thought
Complainant should not resume teleworking. The Commission has long held that an Agency has
broad discretion to set policies and carry out personnel decisions, and should not be second-
guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Here, we simply find no persuasive evidence of an unlawful
motivation.
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 final decision because the preponderance
of the evidence in the record 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
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.

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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

October 19, 2018____
Date