[Redacted], Meaghan F., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2019005325 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meaghan F.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency. Appeal No. 2019005325 Agency Nos. OCC-18-0001-F, OCC-18-0447-F 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 June 21, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented concern whether Complainant was subjected to discrimination on the bases of disability and reprisal when she was allegedly denied reasonable accommodation, treated disparately with regard to time and attendance, and treated unfairly with regard to travel. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Associate National Bank Examiner, NB-IV, at the Agency’s Atlanta Field Office in Atlanta, Georgia. 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. 2019005325 2 On March 13, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when she was denied the following requests for reasonable accommodation: 1. Telework (on or around September 18, 2017, October 2, 2017, November 2017,2 July 2 and 23, 2018); 2. An emotional support animal (February 23, 2018, and March 4, 2018); and 3. Transportation via Uber (June 29, 2018). The Agency, however, dismissed the complaint for having been untimely filed outside the 15- day filing period. Complainant subsequently appealed the dismissal to the Commission. In Meaghan F. v. Dep’t of the Treasury, EEOC Appeal No. 0120181903 (Sept. 11, 2018), the Commission reversed the dismissal and remanded the case to the Agency for investigation. On August 7, 2018, shortly prior to the issuance of the Commission’s decision in EEOC Appeal No. 0120181903, Complainant filed her second EEO complaint alleging discrimination on the bases of disability (mental) and reprisal for prior protected EEO activity when:3 4. She was charged Absent without Leave (AWOL) or was required to take Leave Without Pay (LWOP) on a number of occasions, including on September 18, 2017, unspecified dates in June 2018, and on July 2, 9, 13, 16, and 23, 2018; and 5. Management treated her unfairly regarding travel the week of September 18, 2017, and in May 2018 and July 2018. In its October 15, 2018, Acceptance Letter, the Agency informed Complainant that it would consolidate her two EEO complaints for investigation due to “considerable overlap between the claims.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On June 21, 2019, the Agency issued a final decision on the merits of the complaint, which concluded that Complainant failed to show that she had been subjected to discrimination as alleged.4 This appeal followed. 22 Complainant did not specify the exact date(s) when she was denied telework in November 2017. 3 As noted in the Agency’s final decision, Complainant raised additional claims, but subsequently withdrew them. Like the Agency, we have omitted the claims that Complainant withdrew. 4 It is unclear from the Agency’s final decision whether Complainant requested a hearing, elected to receive a final agency decision, or failed to make a selection. We note that Complainant did not file any statements or briefs on appeal. 2019005325 3 CONTENTIONS ON APPEAL Complainant did not submit any contentions on appeal. The Agency opposes the appeal and requests that the Commission affirm its final decision finding no discrimination. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Reasonable Accommodation Claims Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p), 1630.9; 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 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Assuming arguendo that Complainant was a qualified individual with a disability, we conclude that the Agency did not fail to reasonably accommodate her disabilities. 2019005325 4 Denial of Telework on or around September 18, 2017, October 2, 2017, November 2017, July 2 and 23, 2018. With regard to Complainant’s denial of telework claim, our review of the record shows that, on April 13, 2016, Complainant requested telework as a reasonable accommodation to address her mental disorders, which included intermittent episodes of major depression. ROI OCC-18-0001- F at 00376. On May 6, 2016, Complainant gave the Agency a medical note from her treating physician, which, in relevant part, recommended telework as a reasonable accommodation. Id. at 00390. In subsequent communications with the Agency’s National Accommodation Coordinator, Complainant clarified that she wanted situational telework on an as-needed basis. Id. at 00278. By memorandum dated July 21, 2016, the Agency granted Complainant’s request for situational telework whenever Complainant experienced flareups in her medical condition. The approval was conditioned on Complainant notifying management at least 15 minutes prior to the start of the workday. The approval was also contingent on the availability of portable work. Under the terms of the reasonable accommodation Memorandum of Understanding (MOU), Complainant was required to take annual or sick leave if no portable work was available. Id. at 00339. Following her initial reasonable accommodation request, Complainant submitted another request, wherein she asked the Agency to advance her leave whenever she had upcoming medical appointments. In response to her reasonable accommodation request, the Agency allowed her to request advanced sick leave whenever she needed to attend medical appointments; however, the Agency conditioned the approval of advanced sick leave on Complainant submitting medical documentation within 15 calendar days from the date she requested sick leave. Complainant requested the opportunity to telework on or around September 18, 2017, October 2, 2017, November 2017, and July 2 and 23, 2018; however, her chain of command denied her requests due to the lack of portable work on those dates. In this regard, Complainant’s second level supervisor (S2) maintained that both he and Complainant’s first level supervisor (S1) would have granted Complainant’s requests if there was portable work for Complainant to perform. S2 emphasized that Complainant had been granted telework for at least 103 days since Complainant’s accommodation took effect in 2016. Complainant, on the other hand, asserted that there was portable work for her to perform. Having reviewed the record, we find that the Agency did not improperly deny Complainant’s requests for situational telework. In this regard, while we acknowledge Complainant’s contention that she was denied telework on or around September 18, 2017, October 2, 2017, November 2017, and July 2 and 23, 2018, we find that Complainant failed to persuasively show that there was portable work for her to perform on those dates. Indeed, the record shows that, on the alleged dates, Complainant’s duties consisted of traveling to banks to physically examine sensitive bank documents onsite. Our review of the record shows that the Agency consistently allowed Complainant to telework, whenever there was portable work for her to perform. In fact, the record shows that Complainant teleworked at least 103 times during the relevant period, and she spent more days teleworking than in the office. 2019005325 5 We find that the only exceptions to the Agency’s accommodative stance was when there was no portable work for Complainant to perform, i.e., the dates in question. Moreover, we note that the reasonable accommodation MOU that Complainant signed with the Agency expressly conditioned telework on the availability of portable work. Given the facts in this case, we find that the Agency did not fail to reasonably accommodate Complainant’s request for situational telework. Denial of Emotional Support Animal and Uber Transportation Claims We turn now to Complainant’s remaining denial of reasonable claims concerning her requests for an emotional support animal and Uber transportation. With regard to her request for an emotional support animal, our review of the record shows that, in August 2017, S2 tentatively granted Complainant’s request for an emotional support animal. The approval was conditioned on the successful completion of a 60-day trial period, during which time management would assess whether the accommodation would be effective for Complainant. ROI OCC-18-0001-F at 00281-284. At the conclusion of the trial period in November 2017, management determined that the emotional support animal was ineffective in enabling Complainant to perform the essential functions of her position and consequently denied Complainant's request on a permanent basis. On January 25, 2018, Complainant submitted another reasonable accommodation request for an emotional support animal. However, management denied the request on February 22, 2018. In denying the request, S2 again determined that the requested accommodation would be ineffective. ROI OCC-18-0001-F at 00366. On the same day, Complainant sent an email to both S2 and her third level supervisor (S3), wherein she requested reconsideration of S2’s decision. Id. at 00361. In requesting reconsideration, Complainant emphasized that, when she received the emotional support animal, the animal was just a five-month old untrained puppy. Complainant explained that that puppy required care to such an extent that it “interfered with [her] assignments and distracted [her].” Complainant maintained that the emotional support animal was no longer a distraction, as the puppy could now be left alone for more than 12 hours. Id. at 00361. By email dated March 2, 2018, S3 denied Complainant’s request for reconsideration on the grounds that the accommodation was ineffective because, during the trial period, Complainant had been removed from an assignment for being disruptive and unproductive and had failed to establish a schedule to care for the animal’s needs. Id. at 00360. S3 offered Complainant to have the Agency’s medical consulting provider, Federal Occupational Health, review Complainant’s request for an emotional support animal. However, Complainant did not respond to S3’s offer. We agree with the Agency that Complainant failed to persuasively show that her request for an emotional support animal would be an effective accommodation. Here, the record reflects that the Agency granted Complainant’s request for an emotional support animal on a tentative basis for a period of 60 days. However, approval of the accommodation on a permanent basis was conditioned on Complainant successfully completing a 60-day trial period. 2019005325 6 Our review of the record shows that, during the trial period, Complainant was not successful in completing her duties. In this regard, we note that Complainant was removed from an assignment for being disruptive and unproductive. Furthermore, she failed to properly care for her emotional support animal. While we acknowledge Complainant’s contention that the Agency should have given her another opportunity to demonstrate that the accommodation was effective, we note that the Agency had concerns with not just Complainant’s performance but also her ability to care for the animal. We are disinclined to find that the Agency had an obligation to offer Complainant another trial period shortly after she failed the first one, as Complainant has not persuasively demonstrated any change in circumstance (aside from the puppy being a few months older). Because Complainant failed to show that an emotional support animal would be effective in addressing her needs, we conclude that the Agency did not improperly deny her request for an emotional support animal on a permanent basis. See Natalie S. v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 0120140815, 0120142049 (Jan. 26, 2018). As for the denial of Complainant’s request for Uber transportation to get to work, we shall dispense with this claim by noting that the Commission has long held that “[a]gencies are not required to provide disabled employees transportation to and from work as a reasonable accommodation unless they provide such services to individuals without disabilities.” See Reita M. v. U.S. Postal Serv., EEOC Appeal No. 0120150260 (July 19, 2017). As such, we find that the Agency did not violate the Rehabilitation Act in denying her request. In reaching this conclusion, we acknowledge Complainant’s contention that the Agency had previously paid for her to use Uber; however, we note that in those two circumstances, the Agency allowed Complainant to expense her Uber fees and seek reimbursement for her out of pocket costs. We note that the reimbursement process is different from the reasonable accommodation process. As noted in the Agency’s final decision, Complainant could have done the same thing here and expensed her costs. However, we again emphasize that the Agency had no obligation to grant Complainant’s request for Uber transportation as a reasonable accommodation. Disparate Treatment Claims We turn now to claims 4 and 5, wherein Complainant alleged that she was subjected to disparate treatment with regard to her time and attendance and unfairly treated with respect to travel. For Complainant to prevail, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). 2019005325 7 Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. These reasons can be summarized as follows. S2 maintained that he charged Complainant as AWOL because Complainant was not at work, did not have any leave to take, was not approved for any portable work, and did not timely provide medical documentation to warrant advanced sick leave or leave under the Family and Medical Leave Act (FMLA). We also note that S2 denied treating Complainant unfairly, and he alleged that Complainant tried to claim excess time than necessary with regard to her travel during the week of July 9, 2018. As for the remaining dates, S2 emphasized that the Agency’s incapacitation travel protections did not apply to Complainant because she was not incapacitated. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext for claim 4, Complainant maintained that she either worked and/or requested leave on all of the cited dates. In addition, Complainant emphasized that she “followed the process for [her] accommodations and request[ed] FMLA leave.” For claim 5, Complainant maintained that, on July 9, 2018, her first level supervisor (S1) did not allow her sufficient time to travel back from a business trip. In this regard, Complainant stated that S1 charged her as AWOL “for time that [Complainant] was still traveling because [Complainant] was unable to call into a work call.” Complainant further stated that she was not paid for work related travel and that S1 was not being fair, as he did not inform her of how much travel time she would be granted. As for the July 23, 2018, incident, Complainant alleged that management refused to apply the Agency’s travel protections to her, as she was incapacitated for the week and could only telework. She maintained that management improperly determined that she was not incapacitated as she could telework. Complainant emphasized that management treated other employees more favorably than her. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. 2019005325 8 The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We find the Agency’s analysis of the claims, as discussed in its final decision, to be persuasive. Having reviewed the record, we see no basis to disturb the Agency’s finding of no discrimination, as Complainant failed to provide any persuasive evidence of discrimination or show that she was treated less favorably than similarly situated employees. CONCLUSION Based on a thorough review of the record, 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. 2019005325 9 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. 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 2019005325 10 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 May 20, 2021 Date