[Redacted], Shellie T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2020003791 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shellie T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003791 Agency No. ARAPG16MAY01780 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 October 30, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, NF-0560-03, at the Agency’s U.S. Army Installation Management Command, U.S. Army Garrison, at Aberdeen Proving Ground in Maryland. On June 30, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination based on disability (Post Traumatic Stress Disorder (PTSD), Panic Disorder, Psychotic Disorder, and Major Depression) and in reprisal for prior protected EEO activity when: (1) on March 7, 2016, the Chief of the Resource Management Division (Chief) denied her request to participate in the Voluntary Leave Transfer Program (VLTP); (2) on March 8, 2016, Chief denied her request for advanced sick leave; and (3) on April 28, 2016, Chief failed to respond to and process her request for reasonable accommodation in accordance with regulatory timelines. 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. 2020003572 2 Following an investigation, the Agency provided Complainant a copy of the report of investigation and notice of her right to request a hearing before and EEOC Administrative Judge. Pursuant to Complainant’s request, the Agency issued a final decision in which it found that Complainant failed to show that Agency management subjected her to discrimination or reprisal as alleged.2 The instant appeal followed. FACTUAL BACKGROUND On April 3, 2015, Complainant was diagnosed with PTSD, Panic Disorder, Psychotic Disorder, and Major Depression. She was unable to drive, and she suffered from panic attacks at work as a result of her medical conditions. Complainant testified she informed her third-line supervisor (S3) and the Human Resources Officer (HRO) about her medical conditions. In or about April 2015, Complainant notified management of her inability to work around certain staff members. The Agency accommodated Complainant in or about August 2015, by reassigning her to the position of Budget Analyst. In December 2015, Complainant was accommodated again due to a conflict she had with another employee and was relocated to a different building. On or about March 7, 2016, Complainant did not come into work and advised her supervisors that she needed to take leave for an unknown duration. Complainant explained that she started a new medication and was having a hard time adjusting to it. Complainant requested advanced leave and participation in the VLTP because she did not have any leave to use. Complainant asserted that on March 8, 2016, Chief unofficially denied her request for advanced sick leave because she was carrying a negative leave balance and it would have taken a long time for her to repay the leave. The record shows that on March 14, 2016, Chief approved 100.75 hours of advanced sick leave. On April 7, 2016, Chief approved a second request for advanced sick leave for 139.25 hours. Complainant’s advanced sick leave totaled 240 hours. The record also shows that on April 19, 2016, Chief approved Complainant's request to participate in the VLTP from April 12, 2016, to May 26, 2016.3 2 Complainant previously filed an appeal with the Commission after the Agency failed to timely issue a final decision. In Gena C. v. Dep’t of the Army, EEOC Appeal No. 2019000315 (May 31, 2019), we ordered the Agency to issue a final decision. 3 On March 23, 2016, Complainant’s husband requested the VLTP form from Human Resources. He later signed and turned in the form, but it was not accepted because there was no official power of attorney in place delegating him that authority. Complainant’s husband was required to provide a VLTP form signed by Complainant in order to process the request. The signed document was received on April 19, 2016. 2020003572 3 Around this time, Complainant submitted a year-old letter from her mental health provider (P1).4 In the March 14, 2015 letter, P1 stated: [Complainant] was seen for an evaluation on April 13, 2015. She was recommended for individual therapy and has been seen on a continuing basis since her initial evaluation. Because of working conditions in her position under [a retired official] a recommendation for work accommodation was made and was provided by the Department of Human Resources. This supported her progress in treatment. A pending meeting about the Exton Golf Course and [retired official] has not yet been completed, which has added additional difficulty to [Complainant’s] confidence and concentration at work. [Complainant] continues to make progress in therapy. However. it is my professional judgment that her therapeutic progress would be strengthened if a work accommodation to allow telecommuting for 75 percent of her workweek could be arranged. This would limit the additional stress and uncertainty she experiences until the pending meeting is finally resolved. Thereafter, P1 provided an updated letter to the Agency dated March 28, 2016 stating as follows: This letter is a follow-up to my letter of March 14, 2016 [sic] to [S1] requesting a work accommodation that would allow telecommuting to work for 75 percent of her workweek. The reasons for this recommendation are as follows: [Complainant] was seen for an evaluation on April 13, 2015, following her discharge from inpatient hospitalization for Post-Traumatic Stress, Major Depression, and Panic Disorder. Factors contributing to these diagnoses have been ascribed to her working conditions immediately preceding her hospitalization. For more than a year before her hospitalization, [Complainant] had attempted to inform supervisors of improprieties at the Exton Golf Course. She was unsuccessful in fully reporting her concerns and believed that subsequent behaviors towards her at her job were retaliations for her attempt to report on the situation. These behaviors undermined her sense of security, support, and accountability and ultimately exacerbated her Post Traumatic Stress disorder resulting in her hospitalization. [Complainant] stated she had been highly functional in her employment at Edgewood Arsenal prior to this targeting behavior. Her transfer to the Financial Management Division and placement in Building 2503 assisted her 4 The undisputed record indicates that this is the first time this letter was submitted to the Agency. 2020003572 4 ongoing stabilization, as she continued to attempt to inform officials of her documentation about the Exton Golf Course operation. Unfortunately, delays in meeting with officials in March have again exacerbated her Post-Traumatic Stress disorder. It reawakened fears of possible retaliation for attempting to report her information. [Complainant] continues to make progress in therapy. However, her therapeutic progress would be strengthened if a work accommodation to allow telecommuting for 75 percent of her work week was arranged. This would limit the additional stress and uncertainty she experiences until the pending meeting is held and all of her supporting documentation is reviewed. On April 6, 2016, Complainant met with Chief to discuss her accommodation issues, which included advanced sick leave, enrollment in the VLTP, and telework. HRO asserts she was having trouble obtaining the required level of detail (including Complainant’s diagnosis and prognosis). Accordingly, on April 20, 2016, to expedite the processing of Complainant’s accommodation request, HRO contacted P1 directly seeking clarifying information. On April 21, 2016, HRO submitted a memorandum detailing her conversation with P1 to APG Commander (COM) which states as follows: To enable management to make a final determination in response to the telework reasonable accommodation request by [Complainant] additional clarifying information was still necessary to obtain. On 19 Apr 2016 around 10:30 a.m., I called P1] (Therapist) which [Complainant] is under the care of to further discuss. The following information was provided: The diagnosis, as indicated in the 28 Mar 2016 memo for [Complainant] are: Post Traumatic Stress Disorder (originally developed much earlier in life however exacerbated due to work environment endured with Leadership at Golf Course and within chain of command), Panic Disorder & Major Depression (other two diagnosis are subsequent to the exposure at the workplace). These two additional items did not further impact her ability to work throughout her tenure at the Golf Course as witnessed through performance evaluations and recognition awards. Prognosis: An assessment of the temporary or permanent state for the individual cannot be determined to date, however within a six-month period additional guidance can be provided in regards to longevity to further assess if/when she will get back to her baseline (i.e. pre-hospitalization). Perceived response to her documentations are somewhat part of response/healing process; if individual feels her documentation/statements are being received and acted upon (at minimum acknowledged and reviewed), and there are no retaliatory responses - a better assessment may be made. Conditional part of the healing process is the response and support to her meeting requests. 2020003572 5 Individual and therapist agree that going back to the Golf Course is not an option for her mental health - at this point and foreseeable future - due to individuals still within chain of command. Based on her ability to be effective and comfortable. Move to FMD assisted in stabilizing her behavior. Currently lack of action on management's behalf and/or instances that lead the employee to feel unsafe with her surroundings (i.e. safety in regards to trust and respect from those around her) causes regressing - destabilizing behavior due to her feeling of vulnerability. Telework request: individual is capable of completing the work as assigned/required, however for her healing process may not be around individuals that have left her feeling vulnerable and unsafe. For example, the feeling of retaliation she has felt after meeting with [S3] and the impact on her in response to her colleagues’ behavior that was deemed by leadership as inappropriate and childish. The request to conduct 75 percent telework is based on her current work structure at the off-site location enabling her to complete her work without having to go into the office. As part of the 25 percent, for her wellbeing it is recommended she go into work at times unlikely to run into individuals she is anxious about and therefore could come in to work to accomplish onsite duties -with the understanding of the times scheduled to come in would be flexible and around the other individuals work schedule. The employee endures, at this time, stress factors when treatment and/or behavior of others change (element of surprise) and leaves her feeling unsafe to possible retaliation, sabotage or other negative impact. At this time an assessment cannot be made that future instances would cause the same response in her behavior (prone to withdrawal - not conflict driven) and would have to be assessed on a case-by-case basis. Chief evaluated Complainant’s telework request. Based on requirements of Complainant’s position description and standards, he recommended that Complainant be permitted to telework 50 percent of her work week, based on the following reasons: (1) [Complainant's] duties require her to use Army Non-appropriated Fund automated systems. Two examples include Rec Trac and the NAF Time Labor Management System (TLMS). These systems are on a separate NAF server that is not accessible through internet access or through the use of a Virtual Private Network (VPN). The Rec Trac server must be accessed at the APG worksite, using a NAF-only computer which is not in the Army domain. There are duties that can be shifted to [Complainant] in order to accommodate her request to telework from 2020003572 6 home. An example would be inputting contracts in the NAF automated contracting system (SNAC). This can be done through use of a VPN. (2) [Complainant’s] duties require her to service customers face-to-face on a daily basis. Her duties include tasks such as attending meetings within the various Family and Morale, Welfare and Recreation (FMWR) activities, assisting with Rec Trac entries and corrections, filing procurement documents, performing cash counts in NAF facilities, gathering budget information from the FMWR worksites, and performing checklist inspections at activities for internal controls. All members of the Support Services Division are also required to attend Division-wide meetings, mandatory trainings, and are also cross trained to step in for coworkers during their absences due to leave, training, and other requirements associated with the Support Services Division mission. (3) Additionally, those duties that would not be performed by [Complainant], in the APG workplace would be required to be re-distributed to other staff members within the Support Services Division. This would cause undue hardship for staff members and additional expense to the organization as other staff members would be required to work in an overtime status in order to cover those duties listed above, that [Complainant] would not be present to perform. On May 2, 2016, Complainant’s telework request was approved, in part. Management approved Complainant for a 50 percent telework schedule because 50 percent of her duties required Complainant’s presence in the office. Within a couple of weeks of the telework decision, Complainant advised the Agency that she was no longer able to come to work and required 100 percent telework to perform her job. Complainant’s husband informed the Agency that the delay in approving Complainant's reasonable accommodation request exacerbated her medical condition. In addition, Complainant stated in her affidavit, rebuttal affidavit and argument on appeal that she has a “hyper-sensitivity to unfairness” that will “never get better” and that she will never be able to work again. ANALYSIS AND FINDINGS 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”). 2020003572 7 Denial of Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. To establish that Complainant 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1614.203(c). Complainant also must demonstrate a causal relationship between her disabling condition and the agency's reasons for its actions. Absent a connection between the two, the agency has no obligation to reasonably accommodate Complainant's disability. See Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981). We assume for purposes of this decision that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Complainant requested the following accommodations: (1) participation in the VLTP; (2) advanced sick leave; and (3) 75 percent telework. The record shows that the Agency granted Complainant’s requests with respect to VLTP and advanced sick leave. However, the Agency only granted a portion of Complainant’s telework request. We find that a fair reading of the record shows that Complainant requested telework because she feels she has been subjected to retaliation and a hostile work environment with respect to her work with management officials since 2015. As a result, she feels unsafe and vulnerable. The record does not support a finding that Complainant was subjected to a hostile work environment in 2015 or at any time relevant to this matter. Rather it seems as though Complainant’s “hyper- sensitivity to unfairness” may cause her to perceive hostility during ordinary work-place events, disputes, or interactions. In addition, we find that a fair reading of the record indicates that Complainant seeks to telework solely to avoid interpersonal conflicts with management and other officials. Complainant is not entitled to such an accommodation. See Stefany D., v. Dep’t of Def., EEOC Appeal 0120172976 (Mar. 5, 2019) (a request for telework to accommodate interpersonal conflicts with management is not a reasonable accommodation); Tessa L. v. Dep't of the Interior, EEOC Appeal No. 0120141159 (July 25, 2017) (finding that complainant's request for an accommodation of a non-hostile work environment or a stress-free work environment cannot be considered as a request for reasonable accommodation) (citing Powell v. Dep't of the Army, EEOC Appeal No. 0120070275 (Apr. 16, 2009); Storman v. Dep't of the Treasury, EEOC Request No. 05990112 (Sept. 7, 2000). Furthermore, we note that Agency officials offered Complainant 50 percent telework as an alternative accommodation. Complainant declined this offer and subsequently requested 100 percent telework. 2020003572 8 While Complainant may not have received the accommodation she preferred, we have held that protected individuals are entitled to an effective reasonable accommodation, not necessarily the accommodation of the individual's choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not offered sufficient evidence demonstrating that the alternative accommodation offered to her would have been ineffective. Accordingly, the record does not support a finding that the Agency failed to accommodate Complainant in violation of the Rehabilitation Act. Disparate Treatment To the extent that Complainant alleges that she was subjected to disparate treatment (apart from accommodation), Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions as discussed above. Namely, Complainant was in fact granted both advanced leave and enrollment in VLTP after all proper documentation was submitted. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. We find the record devoid of evidence to support the assertion that any responsible management official held animus toward Complainant based on her protected classes. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision finding that Complainant failed to prove discrimination and reprisal as alleged. 2020003572 9 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. 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). 2020003572 10 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 December 6, 2021 Date