[Redacted], Eryn M., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2021000466 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eryn M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000466 Agency No. ARCEGALV19MAR00954 DECISION On October 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 25, 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 an Administrative Officer, GS-0341-09, at the Agency’s Engineering and Construction Division, U.S. Corps of Engineers, Galveston District in Galveston, Texas. On April 15, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on race (African American), disability, and in reprisal for prior EEO activity (2016-2018 contacts with the EEO office, the Commander, and the Inspector General) 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. 2021000466 2 1. On January 2, 2019, the Supervisor Civil Engineer promised her a paygrade increase to GS-11 and then shortly afterwards, he asked her to accept a demotion to a GS-5 because of her health. 2. On March 1, 2019, she requested to overtime from the Supervisory Civil Engineer, and he asked her to take compensatory time instead; she is questioned and accused of not being truthful on her time; and she is the only employee that works overtime and is asked not to get paid for it. 3. On March 19, 2019, she requested telework on Wednesdays through June for medical purposes based on an approved reasonable accommodation, and the Program Manager denied her request because she required a doctor’s note due to the length of the request but Complainant is the only employee that is required to bring on medical documentation. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. However, Complainant did not request a hearing or a final agency decision. Thereafter, the Agency issued a final decision on September 25, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Reasonable Accommodation: Claim 3 Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. The Commission will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. Complainant identified her disability as metastatic cancer which was diagnosed in 2013. Complainant alleged that in January 2018, she was denied a reasonable accommodation. Complainant’s duties are providing administrative advice and counsel to Division and Branch Chiefs, participating in planning, directing, and coordination of procedural and administrative functions of three Branches, and performing a variety of administrative management tasks supporting all Division employees. Complainant stated that on March 19, 2019, she requested telework every Wednesday through June 2019 for medical purposes based on an approved reasonable accommodation. The Program Manager, however, indicated that a doctor’s note was required due to the length of the request. 2021000466 3 Complainant asserted, however, that she is the only employee who is required to provide medical documentation in similar circumstances. The Program Manager (Caucasian, female, white) stated that she was Complainant’s first level supervisor (“S2”). S2 explained that on March 4, 2019, Complainant made a reasonable accommodation request to her to telework on Wednesdays through June 2019 for medical purposes. S2 asserted that Complainant’s March 4, 2019 request was not a new reasonable accommodation. Rather, S2 stated that this request was part of a prior reasonable accommodation request, which the Program Manager (S1) had approved. At that time, Complainant was teleworking on Fridays. S1 noted that Complainant requested a second recurring telework day because her doctor said she cannot come to work. Thereafter, S1 asked Complainant for medical documentation, but S1 never received the documentation so never completed processing the accommodation request. S2 stated that on March 5, 2019, she informed Complainant she was required to provide her doctor’s medical note because Complainant’s request extended for several months, through June 2019. Specifically, S2 stated medical documentation was required “if it was reoccurring days for sick leave or telework, she would need to provide a doctor’s note. She was calling in sick every Wednesday, as well as other days of the week. Complainant told S2 the Wednesday was for her treatment one time, and then another time, she said it was because her doctor did not want her to come into the office.” On April 9, 2019, the Civilian Personnel Advisory Center (CPAC) put together a packet requesting medical documentation from her doctor due to the excessive sick leave. S2 stated that in May 2019, Complainant provided her a letter from a doctor dated April 2019, and separate correspondence from another doctor. However, it was later determined that both letters were fraudulent. Specifically, CPAC contacted the doctor’s offices and they denied providing the notes. On May 13, 2019, S2 denied Complainant’s request because she did not provide legitimate medical documentation. On the same day, Complainant received a Notice of Proposed Removal for the fraudulent documents.2 However, it appears that S2 still allowed Complainant to take sick leave on Wednesdays when requested. In sum, based on the undisputed evidence of record, the Agency correctly determined that its management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within her documented medical restrictions pursuant to its obligations under the Rehabilitation Act. Disparate Treatment: Claims 1 and 2 2 Specifically, in its response brief on appeal, the Agency states that Complainant was discharged from Agency employment on July 2, 2019, regarding submission of fraudulent medical documents, and that her removal was affirmed in a decision by the Merits Systems Protection Board. 2021000466 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 a complainant to prevail, he or 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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). Regarding claim 1, Complainant asserted that on January 2, 2019, the Supervisor Civil Engineer (S3) (Caucasian, male, white) promised her a paygrade increase to GS-11 and then shortly afterwards, he asked her to accept instead a demotion to a GS-5 because of her health. S3 was Complainant’s second level supervisor during the relevant period. S2 stated he did not promise Complainant a paygrade increase. He explained while he was the Activity Career Program Manager, he had a discussion with Complainant about how to be promoted over a period of time. He stated that he wanted Complainant to work at a higher-level when she started but she never reached that level. Furthermore, S3 stated that he never asked Complainant to accept a demotion. Regarding claim 2, Complainant alleged that on March 1, 2019, she requested to overtime from S2, and he asked her to take compensatory time instead. S2 acknowledged that Complainant had requested overtime for the period from February 23, 2019, to March 1, 2019, for 17 hours that she worked while in training. S2 informed Complainant that if she worked the time, she could claim it on her timecard. However, he denied asking Complainant to substitute compensatory time for overtime. The Resources Management department was told to delete various days of claimed overtime, because Complainant’s training “went over” on those days, which would not have permitted Complainant the time for her work tasks on those days. 2021000466 5 The record evidence supports the Agency’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the suspension were a pretext designed to mask a discriminatory or retaliatory motivation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2021000466 6 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). 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, 2022 Date