[Redacted], Shaun N., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2021000331 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaun N.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, (Internal Revenue Service), Agency. Appeal No. 2021000331 Hearing No. 570-2019-00235X Agency No. IRSCC-18-0276-F DECISION On October 17, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Management Assistant, GS- 7, in Washington, D.C. On February 15, 2018, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against him based on sex (male), disability, and in reprisal for prior protected activity when: a. He was denied a reasonable accommodation in January 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. 2021000331 2 b. He was assigned work duties that his co-workers did not want to do; c. On January 12, his supervisor told Complainant to take off his shirt if he was too warm while at the office; d. On January 18, 2018, his supervisor said Complainant “does not do any work;” and e. On January 24, 2018, his supervisor told Complainant he had never “dealt with your kind of people.” After its investigation, 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 timely requested a hearing. On September 29, 2019, the Agency filed a Motion for Summary Judgment. Complainant did not file an opposition to the Motion. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation: Claim a Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. Complainant’s main duties were clerical, and included answering telephones, typing, taking messages, and filing case files. Complainant identified his disabilities as Post-Traumatic Stress Disorder (PTSD) and anxiety. In his declaration, Complainant denied that he has any restrictions arising from these disabilities The Supervisory Program Analyst, Office of Chief Counsel, also Complainant’s immediate supervisor (“S1”), stated that on Complainant’s first day in the office, Complainant informed him that he has PTSD. S1 further stated that the EEO Program Manager received an email dated January 29, 2018, from Complainant with a copy of his Veterans Administration accommodation package. The EEO Manager responded to Complainant’s email stated that she needed additional information from his medical provider in order to process the reasonable accommodation request. 2021000331 3 S1 stated that on January 26, 2018, Complainant provided the EEO Program Manager a copy of his medical provider’s letter that stated, in pertinent part: [Complainant] is able to able to do all of his required work duties. I recommend that [Complainant] be given his own office when his duties require him to work at the job site. I further recommend continuation of his accommodation of telework from home three days a week. His anxiety symptoms are raised when he is in crowded areas of public transportation.” S1 stated that the first interactive process meeting included the EEO Program Manager, Complainant and himself. He informed Complainant that management needed additional information from his provider in order to evaluate the reasonable accommodation request. S1 stated that he informed Complainant that the essential duties of his position required Complainant to be in the office, and that his position was not compatible with teleworking. As an alternative option, S1 offered Complainant a later tour of duty. which would allow him to commute to work during less crowded conditions on public transportation. However, Complainant refused the alternative option. The Associate Chief Counsel, General Legal Services (male), also Complainant’s third level supervisor (“S3”), was aware Complainant contacted the Office of Chief Counsel EEO Office regarding accommodation issues. Complainant requested a meeting on January 24, 2018, with S3 and S2. In that meeting, Complainant raised issues about his perception of work assignments and instructions from S1. During the meeting, Complainant mentioned he was working with the EEO Office with regard to providing documentation for his reasonable accommodation request. S3 stated that he asked Complainant “what he needed or wanted but he did not provide any specifics of details. I advised [Complainant] to work with his immediate supervisor to address his concerns and issues.” During his deposition on August 23, 2019, Complainant repeatedly replied, “I plead the Fifth,” in response to basic questions regarding his case and the details of the accommodations he sought. In sum, based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within his documented medical restrictions pursuant to its obligations under the Rehabilitation Act. The record shows that Agency management met with Complainant and EEO office staff on several occasions trying to arrive at suitable accommodations for Complainant’s anxiety apparently triggered by crowded public transportation while commuting to work. While Complainant asked for an extensive telework schedule, the essential duties of his position were not suited to telework. However, management offered him an alternative schedule - a later start time so he could commute outside of rush hour, but Complainant declined the offer. Although individuals protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. 2021000331 4 See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not shown that the offered accommodation would not have been effective. Disparate Treatment: Claim b 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, as here, 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. Complainant asserted he was assigned work duties that his co-workers did not want to perform. In his deposition, Complainant asserted that S1 directed him and his two co-workers to assist with filing, and that one co-worker (CW1) did, but the second co-worker (CW2) objected and did not assist. S1 explained that Complainant is responsible for the duties in assisting two groups of attorneys assigned to him. S1 stated further that the other GS-7 employee, CW1, had very similar duties in supporting the other two groups of attorneys in the office. Finally, S1 stated that CW2 was a GS-11 with higher graded duties that did not apply to the Complainant’s assigned duties. The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the suspension were a pretext designed to mask a discriminatory or retaliatory motivation. 2021000331 5 Harassment/Hostile Work Environment: Claims c - e To prove his harassment/hostile work environment claim, Complainant must establish that he 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, his sex, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). To the extent that Complainant included the denial of reasonable accommodation, as part of his hostile work environment claim, these issues are precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Complainant’s alleged that on January 12, his supervisor told him to take off his shirt if he was too warm while at the office. S1 explained that he noticed Complainant was sweating while wearing a knee length cardigan sweater and told him that he was free to take off his sweater if he was too warm. He stated that he did not tell Complainant to take off his shirt. Complainant alleged that on January 18, 2018, his supervisor said Complainant “does not do any work.” S1, however, denied making this comment. S1 stated that, to the contrary, by January 18, 2018, Complainant was already processing incoming and outgoing mail, making legal case jackets, making copies and performing other routine administrative tasks. With respect to Complainant’s claim that on January 24, 2018, S1 told Complainant he had never “dealt with your kind of people.” In his declaration, Complainant was asked to state what the supervisor specifically said to him. Complainant identified only his supervisor, not what he claimed the supervisor had said. S1 stated that he informed Complainant that he “has never supervised someone with a disability, I told [Complainant], that I would help in any way that I could to help him be successful in his new job. I told [Complainant] that because this was new to me that I might not be able to respond to his questions immediately, but that I would try to get answers as quickly as possible.” In sum, the evidence fully supports the AJ’s determination that there was simply no evidence that discriminatory or retaliatory animus played a role in the disputed actions. 2021000331 6 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding 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. 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. 2021000331 7 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 February 10, 2022 Date