[Redacted], Adalberto D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 10, 2021Appeal Nos. 2019005111, 2019005112 (E.E.O.C. Feb. 10, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adalberto D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal Nos. 2019005111 & 2019005112 Hearing No. 541-2018-00007X Agency Nos. 2003-0339-2017101517 & 2003-0339-2018105059 DECISION On July 8, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a June 28, 2018 final Agency decision (FAD) concerning his 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 his two complaints, Complainant was employed by the Agency as a Review Appraiser (Staff Appraiser), GS-1171-11 at the Denver Regional Office, Regional Loan Center, Construction/Valuation Section in Lakewood, Colorado. Complainant accepted a 120-day virtual (not in office) detail to the Veterans Identification Card Program in the Veterans Experience Office effective July 9, 2018. While on detail, on September 30, 2018, he accepted the position of Field Examiner with the Agency’s Indianapolis Fiduciary Hub. This Hub has locations in the Eastern U.S., and it appears Complainant was located in Pennsylvania as a Field Examiner. 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. 2019005111 & 2019005112 2 On April 3, 2017, Complainant filed EEO complaint 2003-0339-2017101517 (Complaint 1), as amended. On October 10, 2018, Complainant filed EEO complaint 2003-0339-2018105059 (Complaint 2). He alleged, in relevant part, that the Agency subjected him to discriminatory actions and a hostile work environment based on reprisal and his disability (Complaint 1 - Irritable Bowel Syndrome (IBS), frequent urination, sciatica, chronic knee pain, sleep apnea, asthma, allergic rhinitis, sinusitis, migraines, Post Traumatic Sleep Disorder (PTSD); Complaint 2 - asthma, migraines, sleep apnea, and PTSD) when: Complaint 1 1. On January 25, 2017, the Chief of the Denver Regional Loan Center (Complainant’s fourth line supervisor) (S4) and Complainant’s first line supervisor (S1) notified him that his telework agreement as a reasonable accommodation was going to be rescinded. 2. As of April 3, 2017, S4 denied his August 2016 request for assistance with printing while teleworking as a reasonable accommodation. 3. From August 2016 to April 3, 2017, S4 gave him negative monthly performance ratings. 4. As of August 9, 2017, the Denver Local Reasonable Accommodation Coordinator (RA Coordinator 1) denied his January 30, 2017 reasonable accommodation request, in part. 5. On August 9, 2017, RA Coordinator 1 denied his January 30, 2017 reasonable accommodation request for no overnight field review. 6. As of September 28, 2017, the District Office failed to grant or deny his January 25, 2017 hardship transfer request. Complaint 2 7. On October 13, 2017, the Agency did not grant his requests for specialized masks. On May 8, 2018, S4 denied his reasonable accommodation of no long-distance driving, no overnight travel, payment for parking close to the airport and an extra bag (if required to travel overnight), and no travel to smoke filled areas.2 8. On December 7, 2017, S4 issued him a monthly performance review that he did not meet standards. 2 This claim is a combination of two issues defined by the Agency. We reworked them to better reflect Complainant’s claim. 2019005111 & 2019005112 3 9. From March 2018 through May 2018, S4 refused to respond to his emails requesting approval of his reasonable accommodation request. 10. From March 2018 through July 2018, S4, the local Union President, RA Coordinators 1 and 2 requested documents from him that were not relevant to his reasonable accommodation and request for a hardship transfer. 11. On May 18, 2018, S4 denied his May 16, 2018 hardship transfer requests to Manchester, Boston, or New Hampshire. 12. On June 11, 2018, S4 denied his reasonable accommodation transfer request to the Indianapolis Fiduciary Hub. 13. From June 1-20, 2018, S4, and RA Coordinators 1 and 2 e-mailed and called him numerous times requesting additional medical paperwork and information that had already been provided for his reasonable accommodation. 14. On June 20, 2018, S4 issued him a proposed 15-day suspension. 15. From June 21-28, 2018, S4 continually asked him to revoke his request for an internal transfer detail. 16. On June 24, 2018, S4 denied his June 21, 2018 second hardship transfer request to the Indianapolis Fiduciary Hub. 17. On June 27, 2018, the Union President, who colluded with S4, conveyed to him S4’s denial of his second hardship transfer request to the Indianapolis Fiduciary Hub. 18. On June 28, 2018, S1 sent deceptive emails to the RA Coordinator stating he agreed to revoke his reasonable accommodation and accept the internal transfer detail. 19. On July 5, 2018, the Director of the Denver Regional Office (Complainant’s fifth or sixth- line supervisor) (S5) issued him a 2-day suspension. 20. On July 6, 2018, S4 revoked his reasonable accommodation for telework. Following separate investigations on Complaints 1 and 2, the Agency notified Complainant of his right to request a hearing before an EEOC Administrative Judges (AJ). Complainant timely requested a hearing on Complaint 1, but subsequently withdrew his request. He requested a FAD without a hearing on Complaint 2. Consequently, the Agency’s issued a FAD concluding no discrimination was established. The instant appeal followed. 2019005111 & 2019005112 4 ANALYSIS AND FINDINGS Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). Once an individual with a disability requests a reasonable accommodation, the employer must make a reasonable effort to determine an appropriate accommodation. 29 C.F.R. Part 1630.9. We agree with the Agency’s finding that Complainant was a qualified individual with a disability. To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Issues 1 - 3, 8 Per a telework agreement he entered into on June 22, 2015, Complainant teleworked twice a week. Effective June 29, 2015, he was granted the reasonable accommodation of also teleworking ad hoc when his disabilities became symptomatic. This referred to migraines and IBS. According to Complainant’s supporting medical documentation from his physician, his IBS flared about every two weeks, and his migraines typically occurred every few weeks with an episode of 3-5 hours. Report of Investigation (ROI) on Complaint 1 (ROI 1), Ex. 7-10, at Bates Nos. 169 - 171. 2019005111 & 2019005112 5 Nevertheless, Complainant typically reported to the office one day a month, and did not report there at all in October, November, and December 2016. ROI 1, Ex. 7-2 at ¶ 19, Bates No. 86. One of Complainant’s primary duties was to conduct desk reviews of appraisals of residential properties, including the quality of Notices of Value (“NOVsâ€) issued by staff appraisal reviewers. Regarding issue 1, on January 25, 2017, S4 issued Complainant a notification that because he was not coming to the office to timely print and mail his NOVs, his telework agreement was being terminated effective February 9, 2017. S4 viewed the creating, printing, and mailing of NOVs to be part of the same task - issuing NOVs. On January 31, 2017, Complainant submitted updated medical documentation by his family physician, but it contained no information on why he needed all this additional ad hoc telework. Instead, the physician recommended accommodations for when Complainant came to the office without stating he could not go there if all these things were not provided. S4 repeatedly extended the termination date of Complainant’s telework to allow him an opportunity to update his medical documentation, and ultimately did not terminate it. Id., at Ex. 7- 12, at Bates Nos. 261, 264 (top of page), Ex. 7-13, at Bates No. 302. Regarding issue 2, Complainant requested as a reasonable accommodation alternatives to reporting to the office all day when NOVs needed to be printed. On or about June 29, 2017, Complainant submitted a brief note by his internist asking the Agency to accommodate his IBS and migraines by giving him printing assistance. Complainant resided a 10 minute drive from the Denver Regional Office. Over a period of months, in interactions with his line management, Complainant suggested printing from home, reporting to the office during work hours for short periods (less than 15 minutes to print) and making up the time driving at home, reporting to the office during lunch to print, having willing coworkers print, swapping work with coworkers in exchange for them printing, getting mailroom clerks to print, emailing veterans the NOV in PDF form, and other ideas. All these suggestions were rejected by line management for various reasons. On July 24, 2017, the Denver Regional Loan Center started a “print farm†which eliminated the printing and mailing issue. When this started, the Loan Center increased telework for staff from two to three days a week. Because Complainant chose a compressed work schedule, his new schedule was to report to the office once a week. Issues 3 and 8 regard Complainant being issued his monthly performance numbers by S1 (not S4) and indicating while he timely created NOVs, he did not meet NOV standard because he did not timely print and mail them. The numbers measured many tasks. For the months at issue, the notices to Complainant indicated that overall he exceeded by multiples exceptional numbers. S1 explained that he reflected Complainant’s NOV numbers as they were. 2019005111 & 2019005112 6 In the FAD, the Agency found that Denver Regional Loan Center policy did not permit employees to print and mail while teleworking. Rather, they were required to do so on their non-teleworking days. It found that management reasonably accommodated Complainant in accordance with his medical documentation. Regarding S1’s reports to Complainant on his monthly performance numbers, the Agency found that they were not negative. We agree with Complainant that prior to the print farm, management was inflexible on providing an accommodation regarding printing and mailing. S4 believed that printing and mailing NOVs was part of the essential function of doing NOVs. Complainant disagreed. We need not decide whether printing and mailing were an essential function of Complainant’s job or if the accommodations Complainant suggested would pose an undue hardship on the Agency because the medical documentation he submitted did not support his reporting to the office so infrequently that he could not timely print and mail. Moreover, on issues 1 - 3 and 8, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected classes. As such, he also did not prove his claim of discriminatory harassment. Issue 4 On January 30, 2017, as reasonable accommodations Complainant requested liberal leave when symptomatic, ergonomic adjustments to his office workstation, an air filter for his desk area to reduce respiratory issues, flexible breaks for bathroom use, noise reduction or a noise free zone around his workstation, and that the overhead lights above his work station be removed. On January 31, 2017, he submitted supporting documentation by his physician recommending an “ergo set up†for his sciatica, liberal leave, flexible breaks for bathroom use and stretching, “appropriate lighting†above his workstation to prevent migraines, “reduction of soundâ€, and an asthma air filter. Complainant never asserted management actually limited his bathroom use and stretching, or denied his requests for leave when symptomatic. On February 9, 2016, the Agency conducted an ergonomic evaluation of Complainant’s work station. Pursuant thereto, he was provided an ergonomic chair around June 15, 2016. ROI 2, Ex. 7-14, Bates No. 419. His desk was raised around March 6, 2017. Id., at 418. In response to his air quality concerns, the Agency secured an Airborne Particulate Assessment on June 19, 2017, which showed dust levels were almost ⅔’s below Occupational Safety and Health Administration (OSHA) indoor limits. Nevertheless, Complainant requested a filter for his desk area, which S4 approved in a July 26, 2017 “Accommodation Request Determinationâ€, indicating it would be obtained. Complainant wrote on July 17, 2017, that the ergonomics and lighting of his workstation were okay. On July 25, 2017, S4 on its own initiative offered to order Complainant, upon his request, noise canceling headphones with a microphone. Complainant indicated he was willing to give them a try. With the increased telework starting around late July 2017, the Loan Center introduced “hotelingâ€, meaning Complainant moved to a shared workstation, began around then. The desk height was adjusted for Complainant. He stated the lighting was not addressed in the shared workstation. 2019005111 & 2019005112 7 On August 9, 2017, RA Coordinator 1 emailed Complainant that his medical documentation for ad hoc additional telework as a reasonable accommodation for episodic migraines and IBS did not support his current pattern of usage both in terms of number of days, and always taking full telework days since the documentation suggested episodes lasted less than a work day. He invited Complainant to submit updated medical documentation. Regarding overhead lighting causing migraines, RA Coordinator 1 wrote in the email that this was accommodated with allowing telework during flairs. On October 12, 2017, Complainant’s internist advised that environmental light and sound control could be addressed with ear plugs and sunglasses. ROI 1, Ex. 7-16, at Bates Nos. 619 - 620. On Complainant’s requests for reasonable accommodations on overhead lighting, dust, ergonomics, liberal leave and breaks, the Agency found that after he provided medical documentation addressing ambiguities and missing information, S4 approved these requests on July 17, 2017 (which he formalized on July 26, 2017). S4 approved liberal leave, wrote the ergonomic chair and adjustments were already provided, the overhead lights had been removed or were off, that a HEPA filter would be provided and Clorox wipes were available, and offered noise cancelling headphones with a microphone. Regarding noise, Complainant’s main concern was being irritated by sound caused by heating and air-conditioning through vents. ROI 1, Ex. 7-1, ¶ 22.b, Bates No. 65, Ex. 7-13, Bates No. 375. While the Agency offered Complainant noise cancelling headphones with a microphone, he has not indicated what came of this. The record, as it stands now, fails to show Complainant was not provided an effective reasonable accommodation for noise. We disagree with RA Coordinator 1 that allowing telework for a migraine flare was an effective reasonable accommodation on lighting. But this problem was resolvable by Complainant wearing sunglasses, a personal use item. An employer does not have to provide as a reasonable accommodation personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with eyeglasses, hearing aids, or similar devices if they are also needed off the job. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, OLC Control No. EEOC-CVG-2003-1, at GENERAL PRINCIPLES section (Oct. 17, 2002). Sunglasses fall into this category. While an individual is not required to use mitigating measures, such as medicine to obviate the need for accommodation, given the facts in this case we exercise our discretion to find that the Agency’s inaction on lighting did not violate the Rehabilitation Act. Regarding dust, Complainant requested a filter for his desk area. A June 19, 2017, air quality report showed indoor dust levels were almost ⅔’s below OSHA indoor limits. Nevertheless, Complainant requested a filter for his desk area, which in a July 26, 2017 “Accommodation Request Determinationâ€, S4 approved, writing it would be obtained. On October 12, 2017, Complainant emailed RA Coordinator 1 asking why the dust issue had not been addressed. 2019005111 & 2019005112 8 The record, as it stands now, fails to show Complainant was not provided an effective reasonable accommodation for dust. Complainant has not stated he did not get the filter for his desk area, or what occurred regarding the dust matter after July 26, 2017. Explaining that certain conditions and medications at times restrict his ability to drive, on January 30, 2017, Complainant requested as a reasonable accommodation that the Agency pay the costs of public transportation when he needs to use it to commute the four miles from his home to the office. In response, the Agency provided him a link to the Agency transit benefits program. ROI, Ex. 7-13, at Bates No. 378. S4 determined this accommodated Complainant. The record does not reflect whether Complainant received transit benefits. Regardless, we find that the Agency is not required to pay for commuting costs under the Rehabilitation Act. Further, regarding issue 4, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected classes. Issue 5 While Complainant had not done any overnight travel since around 2014, his January 30, 2017 reasonable accommodation request included no overnight travel. To support this he submitted the above referenced medical documentation by his family physician dated January 31, 2017, which read “not able to travel - local onlyâ€, with no specific information as to why. While Complainant had not been scheduled for any overnight travel, on August 9, 2017, RA Coordinator 1 advised that having flair ups every two or few weeks was insufficient justification for a total ban on travel. He also advised Complainant that the Agency’s Office of General Counsel determined that travel for field reviews was an essential function of his position, so management would not remove this requirement no matter what medical documentation he provided. On September 26, 2017, S1 emailed Complainant and one of his coworkers that per the rotation for Staff Reviewers of assignments requiring overnight travel, they were assigned to perform Memorandum of Values (MOV) on three cases in Lake County, Oregon. S1 asked that they schedule the trip from October 16, 2017 - October 20, 2017, and to make an itinerary for management approval. This trip required a flight from Denver, Colorado to Medford, Oregon. S1 advised the coworker would get a rental car and do the driving during the trip. The trip included driving from Medford to Lakeview, Oregon, about three hours and twenty minutes. On October 12, 2017, RA Coordinator 1, presumably in response to Complainant’s concerns, created a medical inquiry indicating that Complainant advised that out of town travel may cause a flair up of his medical conditions and he may need more time while traveling, and asked questions designed to elicit information on accommodations. On October 12, 2017, Complainant’s internist replied that Complainant had IBS, frequent urination, migraines, allergies, and obstructive sleep apnea, and may need to have frequent rest stops to use bathroom facilities and wear a “basic mask†to prevent allergy flairs. ROI 1, Ex. 7-16, at Bates Nos. 619 - 620. Prior to the trip, the Agency provided Complainant masks. 2019005111 & 2019005112 9 We need not decide if doing work that required overnight travel was an essential function of Complainant’s job. He has not shown that the trip to Oregon violated the medical restrictions he had at that time. He has not indicated that during the trip he got insufficient restroom breaks or other problems. Further, regarding issue 5, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected classes. Issue 6 On January 25, 2017, Complainant requested a hardship transfer to the position of Program Analyst, GS-0343-11/12/13, an all virtual position (no in office) with a negotiable location. S4 forwarded Complainant’s request to the Director’s Office. S4 stated that due to a hiring freeze, this position became unavailable, and thereafter was not filled. Complainant disputes this. Regardless, to the extent Complainant claims this matter constitutes a denial of reasonable accommodation, we disagree. The Rehabilitation Act does not require an agency to promote an employee as a form of reasonable accommodation. Jefferies v. USPS, EEOC Appeal No. 01A51415 (Jun. 9, 2006). While Complainant contended he would have lateralled in as a GS-11, we find the job would still be a promotion because it had a noncompetitive career ladder to the GS-12/13, and Complainant’s position topped out at GS-11. Further, S4 wrote that hardship transfers do not include promotions. ROI 1, Ex. 7-15, at Bates No. 511. We find this credible. Further, regarding issue 6, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected. Issue 7 The record indicates that on or prior to October 2, 2017, Complainant submitted medical documentation that he may be “challenged by road trips in excess of 5 hours.†ROI 1, Ex. 7-16, Bates No. 639. In his investigatory EEO affidavit, Complainant indicated this meant no driving over five hours in smoke filled areas at higher altitude. ROI 2, Ex. 7-1, at ¶ 16.b, Bates No. 132. On October 12, 2017, Complainant emailed HR Coordinator 1 that the inexpensive masks the Agency gave him for the Oregon trip were inadequate to protect him from a respiratory flareup caused by forest fire smoke, and provided a link for Respro Allergy Masks. On October 13, 2017, RA Coordinator 1 replied by emailing Complainant, Complainant’s Section Chief - his second line supervisor (S2), and S4 that it appeared Complainant wanted to engage on the interactive process on masks. He advised that no additional action be taken on masks without advice on what was needed by Complainant’s health care provider, cautioning that relying on marketing or OSHA materials could be dangerous because the wrong mask could exacerbate Complainant’s medical condition(s). ROI 1, Ex. 7-16, Bates Nos. 567 - 568. We note that that on October 12, 2017, Complainant’s physician advised that he wear a “basic maskâ€. 2019005111 & 2019005112 10 Complainant contended that on December 13, 2017, he made reasonable accommodation requests to not travel long distances (no overnight travel), if he did reimbursement for close airport parking and an extra bag, and no field work in smoke infested areas, a reference to fires. He submitted a completed form by his health care provider dated December 19, 2017, which opined that because of his sleep apnea he should avoid long distance driving, that walking long distances exacerbates his asthma so he would benefit by parking near the airport, that he required an extra bag when flying because he used a continuous positive airway pressure (CPAP) and distilled water for his sleep apnea, and that he should avoid field work in smoke infested areas because it could cause an asthmatic flare up. The provider did not address overnight travel. On May 18, 2018, S4 denied Complainant’s requests for no long distance driving, overnight travel, and field work in smoke infested areas, and to pay for close parking next to the airport and an extra bag. He denied the requests for the first three things because field work, which could include overnight travel and travel into smoky areas was an essential function of Complainant’s job. He denied the close airport parking because the Denver International Airport’s economy parking lots had free shuttles with drop offs at the entrances. He denied payment for the extra bag as an automatic thing, advising Complainant to first ask the airline if it would waive the fee for a bag with medical equipment, and if not approved, then request the Agency in advance for reimbursement for the extra bag. The Agency did not violate the Rehabilitation Act by giving the type of mask it did to Complainant. His internist advised Complainant may need to wear a “basic mask†to prevent allergy flairs. The Agency rightfully expressed concern about giving Complainant a specialized mask without medical support. Regarding denial of Complainant’s requests for no field work requiring long distance driving or being in smoky areas the Agency found that this was an essential function of Complainant’s job. We need not decide whether these things were an essential function of Complainant’s job. After Complainant’s Oregon trip ended on October 20, 2017, he continued his employment as a Staff Reviewer in Denver until he moved to other Agency positions starting on July 9, 2018, where the above field work was no longer an issue. Complainant does not contend that he was assigned field work requiring overnight travel for the remaining time he was a Staff Reviewer in Denver, and there is no indication of this in the record. The same is true regarding field work requiring long distance driving of more than five hours into smoky areas at high altitude and working in smoke infested areas. The record reflects that the parking and bag matter regard the Oregon trip. Complainant does not contend and there is no indication in the record that while working as Staff Reviewer in Denver after October 20, 2017, he took a flight for work. He did not request these until after the Oregon trip. The Agency is not retroactively required to grant a reasonable accommodation requested after the fact. 2019005111 & 2019005112 11 In finding no discrimination on denying Complainant’s requests on the parking and extra bag, the Agency agreed with S4’s reasoning. We also agree, except regarding extra bag if it became clear an airline’s policy was not to waive the fee. The record reflects that Complainant’s actual concern about the parking and extra bag was that the Agency denied his voucher for these things. These items are not normally reimbursable. He did not get approval for these expenses because he did not seek or get approval in advance for them, not discrimination. Further, regarding issue 7, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected classes. Issues 9, 15, 18 The Agency found that issue 15 did not occur, and while not specifically addressing issues 9 and 18, seemed to group them by reference with issues it found did not occur. It found that even if they did occur, Complainant failed to prove these actions were based on his protected groups. Based on our review of the record, we find issues 9 and 18 did not occur, and accordingly find no discrimination on them. Regarding issue 15, on or before June 20, 2017, Complainant accepted a 120 day virtual detail to the Veterans Identification Card Program in the Veterans Experience Office effective July 9, 2018. ROI 2, Ex. 7-2, at ¶ 87, Bates No. 188; Ex. 7-29, Bates No. 623. Meanwhile, Complainant had a hardship transfer request pending with the Indianapolis Fiduciary Hub. On June 26, 2018, S1 emailed Complainant that it was not fair to hold up both offices, so he needed to either retract the hardship request or advise the Veterans Experience Office he could not commit to the detail. ROI 2, Ex. 7-29, Bates No. 601. Complainant contacted the local Union President about this, and he responded that “they†are asking S1 because if he is on the detail, the Indianapolis Fiduciary Hub would decline his hardship request based on that and he was being trained for the detail with the expectation that he would be on it for the duration. We find Complainant has not shown S1’s instruction to Complainant to make a choice was based on his protected groups. Issues 10 and 13 Complainant requested a hardship transfer to the position of Field Examiner. S4 advised him on May 18, 2018, that while the lower New Hampshire/Manchester, NH area had no openings, there were openings in Fairfield, CT, Long Island, NY, and New Cumberland, PA, and asked if any worked for him. On May 18, 2018, Complainant initially replied no, but on June 1, 2018, replied again that he was interested in Fairfield, CT. He added that he would not need reasonable accommodation there because a Field Examiner is based in a home office, there is flexibility in scheduling interviews, and being in a suburban area does not affect his lungs. Field Examiners travel approximately 60% to 75% of the time by driving inside their territory to conduct their work assignments and the remaining time in their home scheduling appointments with veterans at their homes, care facilities, and so forth and typing field exams. Given this, in response to Complainant’s expression of interest in Fairfield, CT, S4 on June 1, 2018, emailed him that before he coordinated with the Director’s Office, could he verify that he could handle these duties. 2019005111 & 2019005112 12 Complainant responded the same morning that he could. The record suggests that S4 did coordinate with the District Office. Specifically, Complainant emailed the Union President on June 27, 2018, that he believed his delay in indicating he wanted the Fairfield, CT job likely resulted in the denial of this hardship transfer. ROI 2, Ex. 7-29, Bates No. 687. Meanwhile, on June 21, 2018, Complainant applied for a hardship transfer to Fairfield, CT, which he referred to as his second hardship request. While Complainant’s Denver office approved the request, on June 29, 2018 the receiving office rejected it. On June 14, 2018, RA Coordinator 2 provided Complainant a medical inquiry to give to his physician. While the record does not contain a copy thereof, the record shows it was designed to elicit information clarifying why Complainant’s medical documentation indicated he was restricted from long distance driving and overnight travel as a Staff Reviewer, he confirmed he could do these things in another job for which he was seeking a transfer, and whether he still needed these accommodations. On June 20, 2018, Complainant emailed RA Coordinators 1 and 2 questioning the need for additional medical documentation. In response, RA Coordinator explained Complainant recently confirmed he could perform duties of the transfer position which he indicated he could not perform in his current job, and this made them question if they had an accurate understanding of his current medical conditions and limitations. In response, Complainant indicated that he would not be providing more medical documentation. He then followed up by replying it was common sense that long distance driving in remote high altitude areas where there is fire activity impacted his ability to drive, and distance driving at sea level in a suburban area would not. RA Coordinator 1 replied by urging Complainant to get medical documentation to address this. Prior to an offer of employment, the Rehabilitation Act prohibits all disability related inquiries and medical examinations, even if they are related to the job. After employment begins, an employer may make disability related inquiries and require medical examinations only if they are job related and consistent with business necessity. An employer should treat an employee who applies for a new job as an applicant for the new job. Therefore, an employer is prohibited from asking disability related questions or requiring a medical examination before making the individual a conditional offer of the new position. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, OLC Control No. EEOC-CVG-2000-1 (July 26, 2000). But where the employer already has medical information concerning an individual at the pre-offer stage for the new position (e.g., information obtained in connection with the individual's request for reasonable accommodation in his current position) and this information causes the employer to have a reasonable belief that the individual will need a reasonable accommodation to perform the functions of the new job, the employer may ask what type of reasonable accommodation would be needed to perform the functions of the new job before extending an offer for that job. Id., at note 37. 2019005111 & 2019005112 13 Applying these rules, we find that the Agency did not make an unlawful medical inquiry. We disagree with Complainant, for example, that common sense dictates that his distance driving medical restrictions would apply to one area and not another. This is especially so since Complainant’s health care provider attributed his need to avoid long distance driving to his sleep apnea, and Complainant attributed it to his sciatica. These things would seem to apply anywhere. ROI 1, Ex. 7-16, at Bates No. 564. Further, regarding issues 10 and 13, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected. Issues 11, 12, 16, 17 All these issues regard denials of hardship transfers away from Denver, with the great majority being to the Indianapolis Fiduciary Hub in various locations. In his EEO investigative statement, Complainant stated that S4 made all these denials. He speculated that S4 had a grudge against him, that S4 requesting medical documentation to show he could do the job evidenced he denied he hardship transfers, and regarding one of the denials, that the local Union President in his self- interest colluded with S4 to deny his transfer, as shown the Union President being promoted to GS-13. Complainant indicated the Indianapolis Fiduciary Hub was not responsible for the discrimination. ROI 2, Ex. 7-1, at ¶ 98, Bates No. 146, and at Ex. 7-1, Complainant’s rebuttal, at ¶ 3, Bates Nos. 164 - 165. In finding no discrimination, the Agency determined it was the receiving offices that denied all these hardship transfer requests, not S4. We agree. Since Complainant emphasized that it was S4 who denied the transfer requests (when he did not), even going so far as to indicate that one of the main offices which denied them did not discriminate, we agree with the Agency’s finding of no discrimination on these issues. Issues 14 and 19 On June 20, 2018, S2 (not S4) proposed suspending Complainant for 15 days for conduct unbecoming a federal employee. The Agency charged as follows. On May 23, 2018, Complainant attempted to gain entry into an unauthorized entry point (no guard), and a student employee refused his request for entry because he had been instructed not to open the door for anyone to allow entry when no guard was present. After Complainant went to an authorized entry point he came to the classrooms area. There, he angrily confronted the student employee with an aggressive posture and with a raised voice demanded “next time, just open the door!†This provoked a heated argument with the student employee who alerted people to step in fearing a fight would ensure. The Agency also charged Complainant with unauthorized admission to property. In support of this it specified that Complainant attempted to access the office building at unauthorized entry points where there was no guard using his Personal Identity Verification (PIV) card on April 30, 2018 and May 23, 2018. 2019005111 & 2019005112 14 In her final decision on the proposed removal, S5 sustained the charge of conduct unbecoming a federal employee and did not address the unauthorized admission charge. She determined that the sustained charge did not support a 15 day suspension, and reduced it to two days with no loss of pay to be served on the weekend on July 21 - 22, 2018. Complainant contended that he did not start the charged confrontation. The version of events that management charged occurred on May 23, 2018, is corroborated by five eyewitnesses, and more credible then Complainant’s version of events, which leaves out much of what occurred. The Agency found that management articulated legitimate, nondiscriminatory reasons regarding the suspension claims, and Complainant failed to prove pretext. We agree. Complainant has not shown he was disparately treated or that the Agency took action against him based on his protected groups regarding issues 14 and 19. Issue 20 Effective July 9, 2018, the Agency terminated Complainant’s telework agreement of July 12, 2017, because on July 5, 2018, the Denver Regional Loan Center sustained the charge that he engaged in conduct unbecoming a federal employee. ROI 2, 7-21, Bates No. 790. While Complainant stated S4 did this, S4 stated he was not involved. Complainant related he was informed of the revocation by his immediate supervisor at the time, who was not S1, and contended she did not have authority to do so and S4 did. The Agency found that while Complainant’s telework agreement was revoked, it had no practical effect on him because it was not effective until July 9, 2018, when he started his virtual detail. Based on this, the Agency found that Complainant’s reasonable accommodation was not revoked. On appeal, Complainant does not specifically contest that because his telework agreement was revoked on the effective date his virtual detail it had no practical effect on him. After the detail Complainant transferred out of Denver to a permanent position based in a home office. We agree with the Agency’s finding regarding issue 20 that his reasonable accommodation was not revoked. Further, regarding issue 20, Complainant has not shown he was disparately treated or that the actions complained of were based on his protected classes. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the FAD. 2019005111 & 2019005112 15 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019005111 & 2019005112 16 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 February 10, 2021 Date Copy with citationCopy as parenthetical citation