[Redacted], Barrett V., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021001566 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barrett V.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency. Appeal No. 2021001566 Agency No. 2019-MDA-004-CE DECISION 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 8, 2020, 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 Human Resource Specialist at the Agency’s Redstone Arsenal in Huntsville, Alabama. On April 23, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (Aurora Vertigo and Irritable Bowel Syndrome) and in reprisal for prior protected EEO activity (request for reasonable accommodation) when: 1. on January 16, 2019, Complainant’s reasonable accommodation request (which took the Agency 71 business days to approve) to telework was approved for only two days per week even though his medical provider recommended more days; 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. 2021001566 2 2. on January 18, 2019, Complainant was issued a negative performance appraisal for the rating period of April 15, 2018 through September 30, 2018; 3. on March 8, 2019, Complainant was issued a Notice of Leave Requirements - Time and Attendance by first level supervisor; and 4. on April 16, 2019, Complainant was issued a memorandum regarding performance expectations which referenced dates from the preceding year. After its investigation into the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested an AJ hearing, but then subsequently withdrew her hearing request. On December 8, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues that the Agency unreasonably delayed processing his October 2018 request for reasonable accommodation when it did not issue a determination on his request until January 2019. Complainant explains that the three-month delay exacerbated his condition and forced him to take sick leave during the period he waited for the Agency to issue a reasonable accommodation decision. Complainant further argues that he received a negative performance appraisal and the notice on leave restrictions because of the sick days he had to take while waiting for the accommodation. ANALYSIS AND FINDINGS Reasonable Accommodation - (Claim 1) Under 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) and (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. 2021001566 3 Here, the record supports a finding that Complainant is a qualified individual with a disability. Complainant testified that as early as June or July 2018, he began having pain in his abdominal area, but that he was not diagnosed with Irritable Bowel Syndrome (IBS) until October 2018. Complainant indicated that IBS caused diarrhea, stomach cramps, and required frequent trips to the restroom. Complainant also indicated that in August 2018, he was diagnosed with Aurora Vertigo which caused dizzy spells, nausea, and light sensitivity. This condition made driving difficult and negatively impacted his depth perception. Complainant indicated that this condition effected his ability to work at a computer for a long time-period and required that he recline or lay down to regain his bearings. Complainant explained that his supervisor (“S1”) and the Disability Program Manager (“DPM”)2 were aware of his conditions after he had applied, and was subsequently, approved for Family & Medical Leave Act (FMLA) leave in August 2018. Complainant indicated that he did not return to work until October 2018. On October 1, 2018, Complainant submitted a reasonable accommodation request to both S1 and the DPM in anticipation of his return to the office. Complainant asserts that he was qualified to perform the essential functions of his position, provided his disabilities were effectively accommodated. Complainant has alleged that the Agency failed to timely respond to his October 2018 reasonable accommodation request when it waited approximately three months to issue a January 2019 decision on the matter. Consequently, our analysis below will focus on whether the Agency responded to Complainant’s accommodation request in a reasonable manner. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Our review of the record reflects that the Agency unreasonably delayed processing Complainant’s October 1, 2018 reasonable accommodation request. The record indicates that on October 1, 2018, Complainant requested “the ability to telework until a diagnosis and treatment plan are enacted to allow [him] to work as regularly as possible.” On the request, Complainant explained that he has extreme nausea, dizziness, and severe bowel movements that affect him daily. While Complainant’s request did not identify a diagnosis, the reasonable accommodation worksheet, completed by Complainant’s physician, did. Complainant’s physician noted that Complainant had aural vertigo, nausea with vomiting, left upper quadrant pain, right shoulder pain, and cervicalgia. 2 The record indicates that the DPM works at a different facility. 2021001566 4 The physician further noted that the cause of Complainant’s acute stomach pain, nausea, and vomiting was pending evaluation by a specialist. However, the physician recommended several accommodations. Specifically, the physician recommended, as also stated in an October 1, 2018 physician note, that Complainant needed the ability to shift and change positions frequently while working, have close access to the restroom, be able to lie down if needed, and be provided a sit/stand desk. Consequently, the physician recommended that Complainant have the option to telework one to four times a week. On November 18, 2018, one month after Complainant submitted his request, the DPM requested that Complainant provided clarification regarding an end date for his need for situational telework. Complainant’s physician indicated that Complainant would require situational telework tentatively until March 31, 2019. On January 22, 2019,3 S1 approved Complainant for situational telework two days per week not to exceed March 31, 2019.4 However, Complainant indicated that he did not receive the approval letter until February 2019, and his situational telework accommodation expired the following month. There no reasonable explanation in the record as to why it took the Agency approximately three months to process Complainant’s reasonable accommodation request. Notably, management officials do not attribute the delay to a lack of medical documentation. The record indicates that Complainant submitted the necessary documentation on October 1, 2018. Complainant’s second level supervisor (S2),5 testified that she believed there was a delay because it was “difficult to ascertain when to start the reasonable accommodation due to Complainant’s absences and on- going medical evaluations.” However, S2’s concern with when to begin providing situational telework is not substantiated by the record. The record indicates that Agency officials were more concerned as to when Complainant’s situational telework would end, rather than begin, when management requested, in November 2018, that Complainant’s physician provide a tentative end date for Complainant’s need of situational telework. Additionally, even though the physician had indicated that Complainant’s had new conditions, the Agency did not request additional documentation related to these conditions. Rather, the Agency only requested that the physician provide an end date for the request for situational telework, which the physician subsequently provided. Moreover, the DPM testified that she had advised S1, S2, and the Human Resources Director to approve Complainant’s request for reasonable accommodation as recommended by his physician. The DPM further testified that she was uncertain why the process was delayed even though she had informed both S1 and S2 that they needed to respond to Complainant’s request, as they had already exceeded the Agency’s thirty-business day deadline. 3 S1 explained that an initial response was issued on January 18, 2019, however, the response was updated via email on January 22, 2019. 4 S1 also approved Complainant to have access to a printer and label maker for use at his alternative worksite. However, Complainant asserts that he did not receive the printer until August 2019. 5 The record indicates that S2 was also a Supervisory Human Resources Specialist. 2021001566 5 Consequently, both S1 and S2 were aware that Complainant’s request was delayed. As a result of this delay, Complainant stated that his conditions exacerbated, and he was forced to take sick leave in October, November, and December 2018.6 Furthermore, there is no indication that the Agency offered or provided Complainant an interim accommodation during the period his request was pending. Given these circumstances, the record fails to support the Agency acted in good faith with the processing of Complainant’s request. Therefore, we find that the Agency violated the Rehabilitation Act when it unreasonably delayed processing Complainant’s reasonable accommodation request. We remand this claim back to the Agency for further processing as indicated in our Order below. Disparate Treatment - (Claims 2 - 4) A claim of disparate treatment is 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 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As previously discussed, Complainant is a qualified individual with a disability. Our review of the record indicates that the Agency articulated legitimate, non-discriminatory reasons for its actions. 6 The record also indicates that Complainant took leave in January 2019. 2021001566 6 Performance Appraisal (Claim 2) Complainant testified that he believed that management issued him a negative performance appraisal for the period April 15, 2018 through September 30, 2018 (prior to his October 2018 reasonable accommodation request) because of his medical condition. Complainant explained that he arrived at the Agency in April 2018, and consequently, did not have a mid-year evaluation. Although Complainant acknowledged that he was absence from work due to his medical condition, he did not believe that S1 took this matter into consideration when she evaluated him. S1 asserted that Complainant’s rating was based on the work products he contributed during the rating period. Both S1 and S2 noted that Complainant did not perform his duties as a full performance HR Staffing Specialist and there were complaints by other managers that Complainant lacked communication, lacked attention to detail to his work, and did not complete his tasks as assigned. S2 indicated that complaints about Complainant’s work occurred when Complainant onboarded with the Agency. S2 further disputed Complainant’s assertion that he was not able to telework during the period at issue. S2 explained that Complainant teleworked on eight occasions, but he produced “very few work products” on those days. Nevertheless, S2 further explained that Complainant still did not perform at the level of expectation when he was at work, he would arrive late, and there were instances where management could not account for Complainant’s whereabouts in the office. A copy of Complainant’s performance appraisal indicates that S1 provided a detailed assessment of the deficiencies in Complainant’s performance. Notice on Leave Requirement (Claim 3) The Human Resources Specialist (HR Specialist) testified that she drafted the notice at issue in coordination with S1. Based on her discussions with S1, the HR Specialist explained that she believed that the notice was warranted. The HR Specialist indicated that S1 had informed her that Complainant would arrive to work late or leave early without submitting a leave request despite S1’s “numerous” conversations with Complainant to inform her when he deviated from his schedule or when he needed to use leave. The HR Specialist also clarified that the notice was an informal action that served as a reminder for Complainant to adhere to the time and attendance rules. A copy of the notice states that it was being issued because of Complainant’s “recurrent use of unscheduled leave, failure to properly request leave, excessive tardiness, and absence from the workplace without supervisor notification or approval [emphasis added].” The evidence shows it was Complainant’s failure to follow proper procedures for using leave resulted in the notice. Complainant, however, did not produce sufficient evidence to show the actual absences he took as a result of the delay in granting his request for accommodation were taken into account. 2021001566 7 Notice on Performance Expectations (Claim 4) The HR Specialist also testified that she drafted the notice on performance expectations on S1’s behalf. The HR Specialist explained that S1 informed her that although Complainant was capable of performing his duties, he would produce negligible or no work products for routine tasks. Consequently, the HR Specialist determined that the notice of expectations was warranted and would be a good tool to help demonstrate to Complainant how he could improve his performance. Finally, the HR Specialist disputed Complainant’s assertion that his medical condition was a factor in receiving the notice. The HR Specialist acknowledged that the notice contained a paragraph concerning medical conditions and reasonable accommodations. However,the HR Specialist explained that the paragraph Complainant questioned was “standard language” that is included in a notice on performance expectations. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability and reprisal for prior protected EEO activity. CONCLUSION Accordingly, we AFFIRM the Agency’s finding of no discrimination for Claims 2 through 4. We REVERSE the Agency’s finding of no violation of the Rehabilitation Act (Claim 1). We REMAND Claim 1 to the Agency in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following actions: 1. Within thirty (30) calendar days form the date this decision is issued, the Agency shall determine and restore the sick leave days Complainant took from October 1, 2018 through January 22, 2019 - the period Complainant’s reasonable accommodation request was pending. 2. Within sixty (60) calendar days from the date this decision is issued, the Agency shall conduct a separate investigation into Complainant’s entitlement to compensatory damages regarding the Agency’s failure to timely process Complainant’s reasonable accommodation request (Claim 1) and issue a decision on compensatory damages thirty (30) days after the investigation is completed. 3. Within ninety (90) calendar days from the date of this decision, the Agency will provide S1 and S2 a minimum of eight (8) hours of in-person EEO training focusing on processing reasonable accommodation requests and the Agency’s responsibility to timely respond to these requests. 2021001566 8 POSTING ORDER (G0617) The Agency is ordered to post at its Redstone Arsenal facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021001566 9 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). 2021001566 10 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 June 3, 2021 Date