U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lacy R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021001414 Hearing No. 510-2018-00346X Agency No. HS-CIS-00101-2018 DECISION Complainant timely 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 November 19, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as an Asylum Officer, GS-0930-12, at the Agency’s Asylum Office in Miami, Florida. On December 22, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on disability and/or 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. 2021001414 2 1. on June 22, 2017, Complainant was denied a reasonable accommodation to telework and to have extra time to complete his assignments; and 2. on September 20, 2017, Complainant was issued a poor 2017 performance appraisal. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but he subsequently withdrew the request. The Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1: Reasonable Accommodation A federal agency must make reasonable accommodation to the known physical or mental limitations of a qualified employee with a disability unless the agency can demonstrate that the accommodation would impose an undue burden on the operation of its program. 29 C.F.R. § 1614.203(c)(1). A qualified employee with a disability is one who can perform the essential functions of the position in question with or without reasonable accommodation. 29 C.F.R. § 1614.203(a)(6). We assume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability due to his diagnosis of Obsessive-Compulsive Disorder (OCD). Complainant requested a reasonable accommodation of telework (either for half-days or some days per week) and/or an extended time to complete his work. In support of this request, Complainant’s doctor stated that the accommodations should be in place for a year to assist Complainant in better learning his duties. This reasonable accommodation request was denied. Instead, management offered and implemented an alternative reasonable accommodation of removing Complainant from the interview schedule one day per week for a three-month period. Management determined that such an accommodation would provide Complainant with the opportunity to concentrate on completing case work and improve his production time. Complainant argues, however, that this was not an effective accommodation. The Commission has held that the reasonable accommodation process is an interactive one and that a complainant is not necessarily entitled to the specific accommodation he requests as long as an alternative accommodation is effective. See Castaneda v. U.S. Postal Service, EEOC Request No. 01931005 (February 7, 1994). The record supports the fact that the Agency engaged in the interactive process to determine an appropriate reasonable accommodation for Complainant. 2021001414 3 As part of this process, Agency officials directed specific questions to Complainant’s doctor to clarify his need for accommodation. The doctor responded that basically what Complainant needed was more time to complete his work. The Agency asserts that it believed that by taking Complainant off the interview schedule one day per week, he would have extra time to concentrate and complete his case work. Complainant’s supervisor indicated that management was willing to offer this accommodation even though conducting interviews was an essential function of the Asylum Officer position. Complainant admits that he stopped communicating with management after his request for telework was denied, even though he states that his OCD was exacerbated. Moreover, the record shows that the Agency did not deem the interim nature of its three-month accommodation as the final word in its initiatives toward Complainant. Instead, Agency management scheduled a meeting on October 11, 2017, to address either “an extension or revision of reasonable accommodation.” Complainant chose, however, to return to a prior position. Under such circumstances, Agency officials did not have an opportunity to pursue additional alternative accommodations if necessary. In sum, we conclude that the evidence of record does not support Complainant’s claim that, under the circumstances presented and in the limited time Complainant remained in the Asylum Officer position, he was denied reasonable accommodation by the Agency in violation of the Rehabilitation Act. Claim 2: Performance Appraisal 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 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 2021001414 4 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Responsible management officials provided legitimate non-discriminatory reasons for Complainant’s 2017 end-of-the-year performance appraisal. In the appraisal, Complainant received ratings of “3” or “Achieved Expectations” in four Competency elements. However, he received a rating of “1” or “Unacceptable” in the Competency of Technical. In testimony and in the appraisal itself, his supervisor noted Complainant struggled to complete legally sufficient work products; explained his cases continued to be reviewed to ensure accuracy and that more than half were returned for additional work, resulting in delays; and stated he failed to demonstrate he could independently and consistently apply relevant knowledge and skills to perform work, despite training, more than a year in his position, and removal from the interview schedule for one day a week over a three-month period. Upon receipt of this appraisal, Complainant chose to return to a prior position. In general, Complainant does not dispute that he was experiencing work performance difficulties but asserts that he should have been provided with the accommodations that he requested. However, we have already concluded that the Agency did not violate that Rehabilitation Act and provided him with an alternative accommodation. In addition, Complainant asserts that his midyear review was vastly different than his final review, which he argues was evidence of retaliatory motivation by management due to his reasonable accommodation request. However, an examination of the mid-year review shows that it, in fact, identified areas where Complainant needed improvement, including taking the time to ensure that he properly followed procedures, reviewed the record to ensure that all the necessary documents were included, and reduced his typographical errors. The record also contains periodic notes from the supervisor to Complainant identifying issues with Complainant’s work. In sum, we conclude that the weight of the evidence does not support a finding that Complainant’s performance appraisal was the result of discriminatory or retaliatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding of no discrimination. 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. 2021001414 5 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). 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. 2021001414 6 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 April 15, 2021 Date
