Nick S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120171188 (E.E.O.C. Dec. 18, 2018)

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

Nick S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.

Appeal No. 0120171188

Agency No. 200H-0310-2015105373

DECISION

On February 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
January 11, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Supervisory Coach and Decision Review
Officer (DRO), GS-13, at the Agency’s regional office in Philadelphia, Pennsylvania.

On an unspecified date, after being hit with a softball, Complainant stated that he began to suffer
severe vertigo episodes. In September 2014, while assigned to a supervisory GS-13 “coach”
position, Complainant suffered vertigo so severe that he was transported in an ambulance from
work to the emergency room. Thereafter, the severe vertigo episodes remained ongoing.

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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Complainant’s doctor provided the Agency with a medical recommendation that limited
Complainant’s driving to 15 minutes at a time because of the vertigo condition. In October 2014,
Complainant and the Agency entered into a telework agreement that permitted Complainant
telework on an ad-hoc basis for 7 to 12 months. In early December 2014, the Agency detailed
Complainant to a non-supervisory role in the front office. Complainant retained his title as a coach
in front office, where the Agency allowed him unrestricted telework until his detail ended effective
October 1, 2015.

On September 16, 2015, Complainant emailed his regional director the following message:

Please consider this a request for a lateral move to the Decision
Review Officer (GS-13) position . . . [s]ince last Thursday, I have
not been able to come to the office or drive any distance due to my
service connected anxiety inducing episodes of vertigo. I have been
requesting [sick leave] for the last 5 days due to no [reasonable
accommodation] in place. I feel that this move would allow me to
continue to function at a high level without the added anxiety of
being in a supervisory role.

The next day, the regional director responded to Complainant. The regional director acknowledged
that the Agency had allowed him ad-hoc telework, but had not resolved his reasonable
accommodation request. Regarding his DRO reassignment request, she described it as “the last
option.”

On September 22, 2015, the Agency’s reasonable accommodation coordinator (RAC) emailed
Complainant to acknowledge his most recent accommodation request and provided forms which
he completed. On September 28, 2015, the Agency also interviewed Complainant for a GS-14
vacancy for Assistant Service Center Manager.

On October 1, 2015, Complainant resumed his regular supervisory responsibilities as a coach. On
October 13, 2015, the Agency announced a vacancy for a non-supervisory GS-13 decision review
officer (DRO) position in the regional office. On October 14, 2015, Complainant emailed the
RAC that he could not function properly “as a coach” due to stress anxiety and vertigo. He stated
a lateral transfer to the DRO vacancy was a possible long-term solution.

In November 2015, Complainant’s physician provided a medical opinion fully supporting the
Agency reassigning Complainant to the DRO position. Effective December 4, 2015, the Agency
granted Complainant’s reassignment request, laterally transferred him from coach to DRO, and
permitted his ongoing ad-hoc telework arrangement.

On December 28, 2015, Complainant learned he had been non-selected for a GS-14 management
position vacancy for which he had applied and interviewed.

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On October 27, 2015, Complainant filed the instant formal EEO complaint. Complainant claimed
that the Agency discriminated against him based on disability and in reprisal for prior protected
EEO activity when:

1. From December 2014 through September 2015, Agency officials mishandled
Complainant’s reasonable accommodation requests and denied his request to
telework; and

2. On September 17, 2015, Agency officials denied Complainant’s request for
reassignment or a lateral transfer due to his disability.

On January 11, 2016, the Agency amended the formal complaint to include a third claim:

3. On December 28, 2015, Complainant was informed that he was not selected for the
position of Assistant Service Center Manager, GS-14 (Vacancy ID No. 1474953).

After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In
accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.2

The instant appeal followed. On appeal, Complainant contends he had been unjustly relieved him
of supervisory responsibilities. Additionally, Complainant argues that he would have been
promoted to the GS-14 position but for his need to telework based on his disability. Complainant
further states that the Agency acted in reprisal for reporting his supervisor in the front office detail
for hostile remarks. He stated that he had also reported his immediate supervisor for racial remarks
to the effect of “blacks prefer Pepsi and whites prefer Coke.” Complainant argues that the Agency
failed to investigate his supervisors’ alleged EEO violations.

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”).

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29
C.F.R. § 1630. In order to establish unlawful denial of a reasonable accommodation, Complainant
must show: (1) he was an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he
was 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 absent undue hardship. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance).

In the present matter, Complainant also alleged that the Agency retaliated against him. To
establish a prima facie case of reprisal, a complainant must show that: (1) he engaged in prior
protected activity; (2) the agency was aware of the protected activity; (3) the agency subsequently
subjected him to adverse treatment; and (4) a nexus exists between his protected activity and the
adverse treatment. See McMillen v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26,
2009); Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We
may infer retaliation where there is proof that the protected activity and the adverse action were
related. See EEOC Compliance Manual Section 8: “Retaliation,” No. 915.003, at 8-18 (May 20,
1998). Typically, the link is demonstrated by evidence that: (1) the adverse action occurred shortly
after the protected activity, and (2) the official who undertook the adverse action was aware of the
complainant’s protected activity before taking the action. Id.

Reasonable Accommodation Process

We analyzed Complainant’s accusation regarding mishandling of his accommodation requests in
the context of the purported Agency failure to engage in the interactive process. Agency
management admitted some problems with documentation and decisiveness. Nevertheless, we
have consistently held that the Agency’s failure to properly engage in the interactive process, does
not, by itself, demand our finding that Complainant was denied a reasonable accommodation.
Rather, to establish liability for a Rehabilitation Act violation, Complainant had to establish that
Agency’s the failures in the interactive processes resulted in its failure to provide him a reasonable
accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sep. 13, 2002).
req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003).

Here, the Agency, albeit informally, granted Complainant’s late 2014 reasonable accommodation
request for unlimited telework. Eventually, in late 2015, the Agency also granted Complainant’s
second reasonable accommodation request for a lateral transfer from coach to DRO. Complainant
did not dispute that the Agency had authorized ad-hoc telework the entire time he was a detailed
as a non-supervisory coach or following the transfer to the DRO position.

Denials of Requested Accommodations

A fair reading of the record reflects that Complainant would have preferred to remain a supervisory
coach or been promoted while having unlimited telework in those positions. As previously stated
above, the Agency permitted Complainant telework as a reasonable accommodation.
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At one point during the September 2015 interactive process, the Agency indicated that its
willingness to transport Complainant to the office so that he could be sufficiently present to
perform as a coach. The Agency reasoned that coaches charged with supervising other employees
were limited to one telework day per month. Based on Complainant’s asking for relief from
supervisory stress, the Agency lateral reassigned him to as a DRO and permitted ad-hoc telework.
Ultimately, Complainant did not receive the exact accommodation he wanted. However, the
Rehabilitation Act only required the Agency to offer accommodations which were effective as
opposed to the accommodations of a complainant’s choice. See U.S. Airways v. Barnett, 535 U.S.
391, 400 (2002). Complainant has failed to persuade us that the Agency’s offers were ineffective
in accommodating him to perform the essential functions of his positions. It was ultimately the
Agency’s discretion to choose between the effective accommodations. See Surprenant v. U.S.
Postal Serv., EEOC Appeal No. 01A15015 (Mar. 4, 2003); Polen v. Dep’t of Def., EEOC Appeal
No. 01970984 (Jan. 16, 2001).

Nonselection for GS-14 Management Vacancy

We examined the nonselection claim as one of disparate treatment under the Supreme Court’s
three-part test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant
to prevail, he must first establish his prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, e.g. that disability or reprisal
were factors in employment decisions. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Then, the burden shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its action. See Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once an agency has met its burden, a complainant bears
the ultimate responsibility to persuade the fact-finder by a preponderance of the evidence that an
agency acted out of prohibited discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
(1993) and Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). If an agency has
articulated a nondiscriminatory reason for its action, this Commission can dispense with the prima
facie inquiry of Mc Donnell Douglas. We may proceed to the third issue of whether Complainant
has shown by a preponderance of the evidence that the Agency’s explanations for its decisions
were pretextual, to mask unlawfully discriminatory motivations. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711,713-714 (1983). A complainant is entitled to a rationale for
management’s action that provides an opportunity to attempt satisfy his ultimate burden of proving
pretext. In a non-selection case such as the present one, a complainant may show that an agency’s
reason for nonselection was a pretext by demonstrating that his qualifications were “plainly
superior” to those of the selectee. Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov.
2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

Agency management officials were aware of Complainant’s EEO activities and his disability
accommodation requests. We find, however, Complainant’s arguments on this matter
unpersuasive. Complainant in essence asserted that the Agency had undercut his otherwise equal
chances at promotion to the GS-14 vacancy for Assistant Service Center Manager by removing
him as a supervisory coach due to his need to telework. To the contrary, the record confirmed that
the Agency interviewed Complainant while he was technically a coach in September 2015.
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Complainant acknowledged he did not perform well on interviews. He did not demonstrate his
qualifications to be plainly superior. Among the 14 applicants deemed qualified, Complainant
scored below five other candidates on the telephone interview and writing analysis exercise.
Finally, it was Complainant, not the Agency, who initiated his being relieved of supervisory duties
even after the Agency had returned him from the detail to his regular coach assignment.

CONCLUSION

Based on a review of the entire record and contentions on appeal, we AFFIRM the Agency’s final
decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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

December 18, 2018
Date