[Redacted], Marie G., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001416 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marie G.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2020001416 Agency No. GSA-19-R4-P-0043 DECISION On December 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 15, 2019 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. Complainant served as the Deputy Director, GS-1170-14, of the Real Property Utilization and Disposal Division within the Public Buildings Service in Atlanta, Georgia. On March 4, 2019, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her on the basis of disability (cognitive issues and anxiety disorder) when, on September 20, 2018, she was told that her request for a reasonable accommodation would be partially granted and thereafter, her request was not granted at all.2 The Agency investigated the complaint and thereafter notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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. 2 One week later, on September 27, 2018, Complainant received written notice from that she would be removed effective September 30, 2018. Complainant’s removal was processed separately as a mixed-case complaint under Agency No. GSA-19-R9-P-0004. 2020001416 2 When Complainant failed to respond, the Agency issued a final decision in which it found that Complainant was not subjected to discrimination as alleged. Complainant claimed that her job as Deputy Division Director required her to manage the day- to-day operations of the real estate disposal program, and she sought a reasonable accommodation for her condition but to no avail. Investigative Report (IR) 57-66. She had been classified as being absent without leave (AWOL) since May 14, 2018. IR 125-27, 165-66. She was seen by a physician on May 21, 2018 and was diagnosed with depression and anxiety disorder but was not given a prognosis. IR 83-86. On July 30, 2018, she submitted a reasonable accommodation request to the Office of Human Resources (OHR) in which she requested a flexible work schedule. A Specialist from OHR responded that she had not provided sufficient medical documentation to support her request and sent her a questionnaire for her physician to complete. The OHR Specialist requested that she return the questionnaire no later than August 14, 2018. IR 182-186. However, Complainant did not respond until August 22, 2018, and when she did, she provided documentation not from the physician but from a speech language pathologist (SLP). The SLP specifically stated that Complainant’s prognosis was unknown, and that as a reasonable accommodation, she needed a 10-hour work week so that she would not have to work in a loud or fast-paced environment. IR 128-30, 193-95. Treating this documentation as a reasonable accommodation request, on September 20, 2018, the Division Director (DD) issued a decision denying her request for a 10-hour work week but granted her a dedicated focus room and permission to telework for up to two days per week. IR 110-16, 132, 196-97. During the entire timeframe, Complainant had remained in AWOL status and was subsequently removed effective September 30, 2018. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); 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); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). We will assume, for purposes of analysis, that Complainant is a qualified individual with a disability. Contrary to Complainant’s assertions, the DD did offer Complainant a reasonable alternative to her requested accommodation of a 10-hour work week. In this regard, the Commission has long held that individuals protected under the Rehabilitation Act are not entitled to the accommodation of their choice, but to an effective accommodation. Quinn B. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019004267 (May 25, 2021) citing Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb 17, 1994) & U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). 2020001416 3 The Agency offered Complainant an isolated workspace while she was in the office and telework two days per week to minimize her exposure to a “loud and fast-paced” work environment. Complainant did not accept the alternative accommodations offered. Complainant has presented no evidence demonstrating that these offered alternative accommodations would have been ineffective. We therefore find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to 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). 2020001416 4 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 3, 2021 Date