[Redacted], Nicki B., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 22, 2022

Appeal No. 2021002192 (E.E.O.C. Mar. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021002192 Hearing No. 540-2019-00242X Agency No. 8L1M1800287T DECISION 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 January 17, 2021, 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 a Contract Specialist, GS-9, at the Agency’s Air Force Sustainment Center in Hill Air Force Base, Utah. On April 11, 2018, Complainant filed a formal EEO complaint. Complainant’s formal complaint consisted of the following matters: 1. Whether complainant was discriminated against based on disability when she was subjected to a continuing denial of reasonable accommodation from April 1, 2016 through February 8, 2018. 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. 2021002192 2 2. Whether Complainant was discriminated against and subjected to harassment based on race (Black), religion (Christian), sex (female), and disability when, on February 8, 2018, she was issued a notice of separation by disqualification during her probationary period. After its investigation into the accepted claims,2 the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested an AJ hearing, but subsequently withdrew her request. On January 17, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit any statements or briefs on appeal. ANALYSIS AND FINDINGS Reasonable Accommodation - (Claim 1) Under the Commission's regulations, a federal agency may not discriminate against a qualified individual based on disability, and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p); EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). Complainant stated that she was diagnosed with psychiatric disorders in February 2014. Complainant explained that her condition requires medication as well as ongoing therapy with a psychologist. Complainant further explained that the side effects from her medication causes major mood swings (manic episodes), high blood pressure, forgetfulness, anxiety, drowsiness, upset stomach, headaches, migraines, and fluctuation of her energy levels, among other conditions. Complainant noted that the side effects had a negative impact upon her quality of life and her ability to perform the functions of her position. During the period at issue, Complainant was hired as a Contract Specialist, effective March 7, 2016, through the COPPER Cap (training) Program, which had a two-year probationary period. The record supports that this program provided “formal, informal, and/or on-the-job training.” Specifically, the participants were required to complete rotational on-the-job training assignments during the training period. 2 The record indicates that Complainant’s complaint included an additional claim which the Agency dismissed on procedural ground. Complainant does not dispute this dismissal on appeal. Therefore, we shall not address this matter in our decision below. 2021002192 3 On October 6, 2017, Complainant requested a reasonable accommodation for telework eligibility and a schedule change. Complainant identified that her psychological disorders (anxiety, depression, bi-polar, borderline personality) were exacerbated at the worksite. Complainant explained the following: . . . teleworking from home would minimize the adverse affect [sic] on current conditions by allowing a period of time without in-person social interaction. It would allow continuity of training plan without added stress and distractions. A scheduled change would allow for less leave to be used during treatment. On October 10, 2017, Complainant submitted supporting medical documentation from her physician regarding her request to the Reasonable Accommodation Coordinator (RAC). On October 16, 2017, the RAC responded to Complainant’s request and informed Complainant that there would be a coordination with Occupational Medicine Services (OMS), who would review the medical documentation, offer recommendations, and the RAC would then follow-up with Complainant. However, Complainant did not receive a response. On October 26, 2017, Complainant emailed the RAC for a status update, and the RAC informed Complainant on October 30, 2017, that the request was still pending with OMS. Meanwhile, on November 7, 2017, Complainant submitted a second reasonable accommodation request. However, this time, she requested use of Family & Medical Leave Act (FMLA) leave on an intermittent basis three times per week for one to three hours. The request noted that Complainant is unable to perform job duties when symptoms are exacerbated. The Agency approved Complainant’s reasonable accommodation for FMLA leave on December 6, 2017. Specifically, the Agency granted Complainant up to 480 hours of FMLA leave in a twelve-month period, to be used intermittently for two days or eighteen hours a week for the purposed of exacerbated symptoms of bipolar disorder, generalized anxiety disorder, or ADHD. However, there is no indication in the record that the RAC responded to Complainant’s initial accommodation request to telework, referenced above. Therefore, Complainant’s reasonable accommodation request for telework is the sole accommodation request at issue. To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. 2021002192 4 Here, the record reflects that Complainant was not a qualified individual within the meaning of the Rehabilitation Act. A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. Here, Complainant’s request to telework and need to avoid “in-person social interaction” prevented her from performing the essential functions of her position. The COPPER Cap (training) Program assessed the participants’ ability to advance in the program by evaluating their performance during rotational on-the-job assignments which necessitated that Complainant work onsite. While the record reflects that another COPPER Cap Program participant (P1) was granted telework, the record reflects that telework requests were not typically granted during training; P1’s telework request was temporary; and P1 had good job performance. In contrast, Complainant had requested to telework for an extended period and had already exhibited poor work performance at her position while onsite. The record supports that Complainant was issued a Letter of Separation because of her poor work performance. Consequently, teleworking, in Complainant’s case, would have furthered her inability to perform the essential functions of her position. A reasonable accommodation is designed to enable an employee to perform the essential functions of the position of record. Therefore, the record does not support that the Agency violated the Rehabilitation Act when it did not grant Complainant’s request to telework.3 For the reasons stated above, we conclude that Complainant failed to prove the Agency violated its duty under the Rehabilitation Act. Disparate Treatment - (Claim 2) 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). 3 Although we find no violation of the Rehabilitation Act because we find that Complainant was not a qualified individual within the meaning of the Rehabilitation Act, we emphasize that the Agency, in this case the RAC, has an on-going obligation to respond, engage, and issue a determination in response to a request for accommodation or provide an interim accommodation while a final determination is pending. 2021002192 5 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 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate non-discriminatory reasons for its actions for removing Complainant from her position. The record reflects that Complainant was issued a Letter of Separation based on poor performance. Specifically, the letter indicated that the separation action was warranted “based on failure to qualify during your probationary period.” The letter noted that Complainant arrived late for her Mock Board Review and was unprepared.4 The letter explained that Complainant was given additional time to upload the required Federal Acquisition Regulation (FAR) slides for her Mock Board Review, but she failed to do so. Additionally, the letter mentioned that Complainant failed to complete assigned tasks and had unsatisfactory attendance throughout the program. Although the Agency had approved Complainant for FMLA leave, the record reflects that the majority of Complainant’s absences were not attributable to her FMLA approved leave related to her disability, but rather Complainant took leave to tend to family issues. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, religion, and disability. Harassment - (Claim 2) To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 4 The record supports the Mock Board Review was an essential aspect of the COPPER Cap program because it allowed the participants to demonstrate their learning, and participants were informed of its importance in advance of the review. 2021002192 6 In other words, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, religion, and disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s additional claim of discriminatory harassment as evidenced by the event in claims 2 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, sex, religion, and disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 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, 2021002192 7 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. 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. 2021002192 8 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 March 22, 2022 Date