[Redacted], Anna T., 1 Complainant,v.Janet L. Yellen, Secretary, U. S. Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020003070 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna T.,1 Complainant, v. Janet L. Yellen, Secretary, U. S. Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020003070 Agency No. IRS-19-1220-F DECISION On March 24, 2020, 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 March 5, 2020 final decision concerning her 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. and 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 At the time of events giving rise to this complaint, Complainant worked as a Supervisory Financial Technician, GS-0503-08, at the Agency’s Refundable Credit Examination Operations in Kansas City, Missouri. On August 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (anxiety and depression), and in reprisal for prior protected EEO activity when: 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. 2020003070 2 1. On May 16, 2019, she received a memorandum regarding a miniature baseball bat that was on her desk and her second level manager told her that she needed to work on some meditation or something with her psychiatrist; 2. On June 25, 2019, she was not allowed to telework and was forced to use annual leave, which she alleged violated her approved reasonable accommodation; 3. On June 26, 2019, she was issued a memorandum titled, “Failure to Follow Established Ad Hoc Telework Procedures;” and 4. On unspecified dates, management disclosed her confidential medical information to Agency employees who did not have a need to know.2 The pertinent record reveals the following facts. Complainant had prior EEO complaints, which were known to management and named the same management officials named here. For this current complaint, she identified the Detailed Department Manager, the new first line supervisor (African-American) (S1), her Operations Manager/Program Manager, IR-03401 (Caucasian, prior EEO, no disability) (S2), the Area Director (Caucasian) (prior EEO, no disability) (S3), and the Director for Return Integrity and Compliance Services (S4) (Caucasian). Claim 1 - Directive to Remove Bat and Offensive Comment/Reasonable Accommodation On October 17, 2018, Complainant filed a written reasonable accommodation request with the Agency’s Reasonable Accommodation Coordinator (RAC1). In her request, Complainant alleged that a toxic work environment caused her to experience increased stress and anxiety. Complainant stated that since 2017, she had been subjected to verbal and physical attacks from S2 and S3. Complainant identified her medical condition as situational anxiety and depression. Complainant requested two to three days per week telework on a regular basis. Complainant explained that she was in constant fear of her colleagues and believed regular telework would be an appropriate accommodation. On March 12, 2019, Complainant’s doctor filled out Part III-A of the Reasonable Accommodation form. The doctor stated that Complainant experiences panic attacks and situational anxiety, with episodes of depression and crying. The doctor stated that the condition was expected to last one year or more. The documentation did not specify how many days per week Complainant might be limited. The record shows that management granted Complainant permission to telework on an ad hoc basis one day per month as an alternative accommodation and that Complainant could apply for Family Medical Leave Act (FMLA)-protected leave as well. S3 was the deciding official on the reasonable accommodation request. S3 noted that teleworking two to three days per week could prevent Complainant from interacting with co-workers and prevent her from effectively overseeing subordinate employees. 2 Complainant withdrew one additional claim during the investigation. 2020003070 3 On April 5, 2019, the Reasonable Accommodation Coordinator (RAC), Complainant and S2 met with Complainant in an interactive discussion. They met again on May 9, 2019, as part of the ongoing interactive process. During the discussion, Complainant’s possession of a miniature baseball bat at the workplace was raised. The bat is a 13 ½ inch miniature baseball bat, which was a souvenir Complainant purchased after the Kansas City Royals World Series win. Complainant kept the item in a penholder in her desk as a “security blanket,” because she felt unsafe in the workplace. S2 acknowledged that Complainant wanted the bat in the office because it made Complainant feel safe. After the May 9, 2019 meeting, S2 acknowledged that she contacted Security. S3 acknowledged that she suggested to S2 that S2 contact security. S2 affirmed that she met with security personnel who indicated that certain items that can be used as weapons are not allowed on federal property. S2 drafted a directive directing Complainant to remove the bat. On May 16, 2019, Complainant was called into S2’s office. She was issued a memorandum, the purpose of which was not disciplinary according to S2. Complainant claimed that S2 told her that “You and your psychiatrist need to work on some new meditations, but the baseball bat must go!” Report of Investigation (ROI), Affidavit A, IF at 125-126. S2 averred that she simply suggested that Complainant should consult her psychiatrist about ways to help her feel safe, given Complainant’s comments that she considered the bat a security blanket. ROI, Affidavit C, pp. 204-206. Complainant was also told that she could not keep the bat in her car or on federal property, and that if she did, she would be subject to discipline, including removal. After receiving the directive, Complainant emailed the RAC (with copies to S1, S2 and S3) and accused management of deliberately trying to provoke a response from her by banning the souvenir. Claim 2 - Denied Reasonable Accommodation/Not Allowed to Telework on June 25, 2019 Complainant had been moved out of her regular assignment. S1 became Complainant’s new supervisor. Complainant stated that she had been “utilizing a Telework Agreement since March 2019.” On June 25, 2019, Complainant sent an email to S1 informing her that she would be working from home, while others were at an office picnic. Complainant did not indicate that the telework request was related to her medical condition in the email. After Complainant had completed several hours of her shift, Complainant received an email from S1 notifying her that she needed to come into the office or take leave. Complainant stated that it took her an hour to drive to the office. Complainant averred that since she had been teleworking once a month without securing advance permission, none was required. She said that she did this in accordance with the reasonable accommodation agreement that she believed was in place. In the four months prior to the June 25, 2019 incident, management had permitted Complainant to telework one day per month on a regular basis. Complainant claimed that she was “made to use her annual leave even with the Reasonable Accommodation in place.” She also averred that S1 “demanded for her to use her leave” and [the demand] happened after she had been working from 5:30 a.m. to 10:00 2020003070 4 a.m.” She averred this was a breach of the Agency’s agreement and questioned whether she could get her leave back. S1 averred that she was unaware of Complainant’s medical condition and that Complainant had not requested to telework, but simply sent an email stating that she intended to work from home on June 25, 2019. Claim 3 - Reprimand Memorandum The next day, on June 26, 2019, her second-level supervisor (S2) sent Complainant a Memorandum, titled “Failure to Follow Established Examination Operations Ad Hoc Telework Procedures.” The memorandum stated that Complainant’s “reasonable accommodation allows ad hoc telework, but it did not change the requirements for ad hoc telework.” Additionally, the memorandum stated that there must be enough work while teleworking. Complainant argued that because permission to telework is tied to her mental condition, it cannot be pre-scheduled. She also contends that she should not be required to divulge her medical conditions as a prerequisite to being allowed a telework day. The memorandum stated that ad hoc telework procedures require that an employee “request and receive manager approval in advance of each instance of telework.” The Agency says there are two different processes at issue here. One is the reasonable accommodation process. The other is the Agency’s ad hoc telework process that is available to both bargaining unit and non-bargaining unit employees. Separate from the reasonable accommodation procedure that was informally in operation, the record references the office policy that stated “consistent with the provisions of IRM IRS Telework Programs, employees must secure manager/supervisor approval for each requested Ad Hoc telework date. ROI, p. 607, Ex 15, Telework Agreement. Complainant stated this was an unanticipated illness and occurrence. She was requesting ad hoc telework. Complainant sought the recovery of 3.5 hours of leave, to be restored for June 25, 2019. Claim 4 - Disclosure of Confidential Information On July 31, 2019, Complainant claimed that management disclosed her confidential medical information to two Agency employees who did not have a need to know the information. She says the information was shared with both the Department Manager (DM1) and the Resources Training Coordinator (RTC). RTC approached Complainant on July 31, 2019 and asked her about her permission to telework. RTC stated that it was unfair that Complainant was permitted to telework when others were not granted that permission. Both DM1 and RTC deny that anyone in management ever shared any of Complainant’s confidential medical information with them. 2020003070 5 After an investigation, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), concluding that Complainant was not subjected to discrimination or reprisal as alleged. 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”). Disparate Treatment Section 717 of Title VII requires that federal agencies make all personnel actions free of race and color discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color or sex”). Reprisal is also unlawful under Title VII. In addition, Section 501 of the Rehabilitation Act bans discrimination against individuals with disabilities in the federal workplace. It also requires an employer to accommodate the known disabilities of a qualified individual with a disability, unless doing so would be an undue hardship. A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC 2020003070 6 Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even if we assume that Complainant established a prima facie case of discrimination and reprisal, the Agency offered legitimate, non-discriminatory reasons for requiring the removal of the baseball bat, not allowing the second day of ad hoc telework. and the issuance of the memorandum regarding the use of ad hoc telework. She was asked to remove the baseball bat because it violated policy, was viewed as dangerous and, according to the Reasonable Accommodation Coordinator and S2, she had threatened to use the bat to defend herself, “if someone came at her.” She was not allowed to telework without prior approval because she had already used her once-a-month telework day that the Agency provided as an accommodation and the Agency policy required prior coordination for regular ad hoc telework requests. There is no evidence that others who were similarly situated were treated more favorably. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Denial of Reasonable Accommodation An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep't. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). The term “reasonable accommodation” means, in pertinent part, modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of the position in question. See 29 C.F.R. §1630.2(o)(1)(ii). While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Owen T. v. Dep't of the Army, EEOC Appeal No. 0120180596 (June 12, 2019) citing Lynette B. v. Dep't of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). We will assume for purposes of our analysis that Complainant is a qualified individual with a disability. In this case, however, we find that the record does not otherwise substantiate her claims that the Agency denied her reasonable accommodation. The Agency acted on her request and provided an alternative accommodation. In lieu of her request to telework two to three days a week, S2 allowed her to telework once a month, offered to assist her to locate another position, and offered help with FMLA-protected leave. The record shows that Complainant acknowledged that she accepted the accommodation and had been permitted to telework one day per month for the preceding four months and had already teleworked one day in June, when she informed her supervisor and management that she intended to work from home on June 25, 2019. In that 2020003070 7 email, however, Complainant did not indicate that the telework request was related to her condition or reasonable accommodation. We further note that the Agency also permitted Complainant to have a unique tour of duty. Complainant’s tour of duty started at 5:30 a.m. to 2:00 p.m. Her first-level supervisor reported to work at 10:00 a.m. S1 was not aware that Complainant’s June 25, 2019 request was related to her condition; rather, she viewed it as a regular ad hoc telework request that required prior approval. As a result, S1 did not authorize her to work from home and told her to report to the office or request leave. Further, the record evidence does not support her claim that she alone was required to coordinate her requests that fell under the general ad hoc telework procedure. All employees were held to the same ad hoc requirements. S2 issued the memorandum for not coordinating the second ad hoc request in advance. While Complainant may not have received the accommodation she preferred, as noted above, we have held that protected individuals are entitled to an effective reasonable accommodation, not necessarily the accommodation of the individual's choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not offered sufficient evidence demonstrating that the alternative accommodations offered to her were ineffective. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Unauthorized Disclosure of Confidential Medical Information The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c). Consequently, where unauthorized disclosure of medical information is at issue, it is not necessary to prove the existence of a discriminatory motivation in order to establish a violation of the Rehabilitation Act; mere disclosure of such information without justification is enough. See e.g. Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for reconsid. den'd EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). We find no basis to disturb the Agency’s finding that there was no unauthorized confidential medical information disclosure. Here, RTC confirmed that no one in management shared any medical information about Complainant to her. RTC stated that she simply had one conversation with Complainant about how often she teleworked and questioned the fairness of her own prior situation. Management officials denied disclosing any confidential medical information about Complainant and Complainant has provided no evidence in support of this claim. Accordingly, the Commission finds that Complainant has not demonstrated that the Agency unlawfully disclosed her confidential medical information in violation of the Rehabilitation Act. 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. 2020003070 8 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. 2020003070 9 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). 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 May 24, 2021 Date