U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frank H.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2020001771 Agency No. HHS-CDC-0407-2018 DECISION On January 7, 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 December 17, 2019 final decision concerning his 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. The Commission’s review is de novo. 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 Public Health Advisor, GS-0685-12, in the Agency’s Field Services Branch at the Pennsylvania Department of Health facility in Harrisburg, Pennsylvania. On November 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (chronic degenerative arthritis), 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. 2020001771 2 1. On August 28, 2018, management denied his request for an alternative work schedule (AWS) and consecutive days off; and 2. On August 28, 2018, management notified him his request for a reasonable accommodation was denied. Claim 1 - Denial of Alternative Work Schedule and Consecutive Off Days In July 2018, Complainant requested to be permitted to work a 4/10 Alternative Work Schedule (AWS), with consecutive regular days off (Friday of week 1 and Monday of week 2). The Agency permits two alternative work arrangements: telework and AWS. The Agency has a policy that does not allow consecutive days off or days contiguous to a weekend. Report of Investigation (ROI), Affidavit of S1, Ex. 5, p. 81. In the past, the Agency permitted some staff to be out of the office on consecutive days or two days continuous to a weekend. ROI, Ex. F4, p. 71. The Agency subsequently modified its policy to maximize an employee’s time and visibility within their assigned area. Complainant submitted documentation from his physician in support of his AWS request. The physician indicated that Complainant had a condition that “flares up causing pain, discomfort, stiffness and limits mobility during early mornings and late evenings.” In addition, Complainant’s physician stated that Complainant was “unable to sit for prolonged periods of time, continuous driving for one hour or more, bending at the knees and stair climbing.” The physician stated that the frequency of his flare ups could not be specified, and that treatment would be based on “activity, physical therapy progress and frequency of the flareups.” On August 3, 2018, management denied Complainant’s request for consecutive days off as part of his AWS request. Complainant was told the AWS was approved, but Complainant was asked to choose a consistent day off. Complainant acknowledged that the Agency granted the 4/10 AWS. Management stated that Complainant was denied consecutive regular days off because the Field Services Branch was striving for consistency of operations for all field staff and wanted to maximize Complainant’s presence as a field assignee. Thereafter, Complainant worked the 4/10 AWS schedule with Mondays off. Claim 2 - Denial of Reasonable Accommodation Complainant acknowledged that after he was unsuccessful in obtaining consecutive days off through his Step 1 and Step 2 grievances, he resubmitted the same request as a request for reasonable accommodation. The documentation submitted in support of the reasonable accommodation request was the physician’s information that had been submitted on August 8, 2018 in support of his AWS request. S1 described Complainant’s duties as “desk work.” Affidavit of S1, ROI, p. 80. Complainant conceded, in his affidavit, that “[he] can perform the activities of [my] job. I can perform the job with or without the accommodation.” ROI, F-1, p. 45. 2020001771 3 The Agency’s Medical Reviewing Authority (MRA) located in the Office of Safety, Security and Asset Management (OSSAM) reviewed Complainant’s reasonable accommodation request and medical documentation. The MRA indicated Complainant’s medical documentation supported the approval of a modified work schedule. In accordance with the determination, the management officials offered Complainant a reasonable accommodation per his prescribed limitation. DBC stated the Complainant’s medical documentation did not demonstrate the need for consecutive days off and the approved accommodation met the requirements outlined in the Summary of Findings from the MRA office. ROI Ex. F-3, p. 59; Ex. F-9, pp. 105-107. On September 25, 2018, Complainant received formal written notice that he was denied consecutive days off. The Agency officials averred that the accommodation it granted conformed with the Summary of Findings for the RA, which stated that Complainant’s medical condition supported the approval of the previously granted alternative work schedule. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). The Agency asserts that when Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. This appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center 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 2020001771 4 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). We find that the Agency articulated legitimate, non-discriminatory reasons for its actions as discussed more fully above. The Agency offered employees alternative work schedules with a choice of regular days off and changed its policy regarding consecutive days off to have consistency. Based on the Agency’s policy, Complainant’s request for an AWS with consecutive days off was denied. Complainant was granted an AWS with a consistent day off. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. 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 his burden here. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Denial of Reasonable Accommodation Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9(a). We will assume, without finding, that Complainant is an individual with a disability. In this case, however, we find that the record showed Complainant did not require the requested accommodation (consecutive regular days off) in order to perform the essential functions of his job. He acknowledged that he was able to perform the duties with or without accommodation. Further, management nevertheless provided him the requested AWS. While Complainant argued his request to have consecutive regular days off off should have been granted, he acknowledged he received the accommodation that his physician recommended on his behalf. There was no reference to consecutive days off, only that a modified schedule was appropriate. 2020001771 5 While Complainant may not have received the accommodation he preferred, 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 accommodation offered to him was ineffective. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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). 2020001771 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 August 26, 2021 Date
