[Redacted], Tyra F., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000022 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyra F.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000022 Agency No. ARREDSTON17JUN01830 DECISION On August 16, 2019, 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 July 17, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Procurement Analyst, GS-1102-14, in the Office of Small Business Programs (OSBP) at the Agency’s U.S. Army Garrison in Redstone, Alabama. On July 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Post Traumatic Stress Disorder (PTSD), Panic Disorder, Major Depressive Disorder, Fibromyalgia, migraines, and damage to internal organs - Disabled Veteran), age (41), and reprisal for prior protected EEO activity (2016 EEO complaint) when, in 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. 2020000022 2 May 2017, it denied her request for reasonable accommodation (five days of telework per week).2 The Agency accepted Complainant’s complaint for EEO investigation. During the EEO investigation, Complainant stated that her PTSD impacts her ability to concentrate, affects her interpersonal skills, and makes it difficult for her to feel safe and causes her to be hyper-vigilante in some situations. Complainant stated that her physical conditions cause her constant pain such that she sometimes has difficulty caring for herself. Complainant stated that her in-office work environment was toxic and felt unsafe, and she had a lot of distractions. She stated that her life is impacted by her conditions all the time, she takes 10 medications, and consults with a psychologist, psychiatrist, social worker, and medical specialists. Complainant stated that medication and breathing techniques help her to function daily. Complainant stated, without mitigating measures for her mental and physical conditions, there are times she would not be able to get out of bed. Complainant stated that her position was sedentary and required research, analysis, and clear and concise writing. Complainant stated, in September or October 2016, she was returning to her office from a brief detail so she gave her supervisor (S1) notice that she would need to request four days per week telework.3 Complainant submitted her request with medical documentation by November 2016, and, in January 2017, was granted three days of telework per week as an interim accommodation.4 Complainant stated, in February 2017, management denied her request and offered her an alternate accommodation, which was not effective. (Complainant stated that management offered her an alternate work-space but it would not work for her because it was an unfamiliar space and had no walls). Complainant stated, in February 2017, she contacted her second level supervisor. Complainant stated, on February 16, 2017, she submitted a written request for presence of a support animal when in office and five days per week of telework. Complainant acknowledged that her doctor did not quantify the number of days she needed to telework and stated the Agency did not request that. Complainant stated that her doctor indicated that it was a supervisor’s decision and he just needed to support Complainant’s request for accommodation. Complainant stated that she was able to work satisfactorily at home. Complainant stated that the days when she could not function at work and let S1 know, S1 let her take leave. 2 Complainant stated that she alleged age because Complainant’s supervisor thought Complainant was too young to have the medical conditions she had. Complainant stated that she alleged reprisal because an appraisal, which was the basis of her 2016 EEO complaint regarding another work location, made her supervisor question her character. 3 Complainant had one regular telework day (Friday) per week without medical request. 4 Complainant stated that she was on leave part of November 2016, December 2016, and early January 2017. 2020000022 3 Complainant stated that she asked for a private office due to the way her workstation was situated. Also, she requested four days of telework to lessen the amount of time she was in office and the feeling of powerlessness she felt while there. Complainant stated that she was having several panic attacks per day and it was affecting her concentration. Complainant stated, after May 3, 2017, she was granted three days of total telework per week - Wednesday, Thursday, and Friday. Complainant stated, May 8 or 9, 2017, she went on long term leave because she “pretty much flat-lined” due to the delay in accommodation. Complainant stated she returned June 28, 2017 and the telework days were reduced to two total days per week. Complainant stated that she did not have difficulty completing her tasks when, in January 2017, she had three days of telework per week as an interim accommodation. Complainant stated that the primary modes of communication between her and her colleagues and clients were email and telephone. She stated that she rarely met face-to-face with them. Complainant stated that meetings were usually scheduled in advance so she would have had time to come into the office to attend. Complainant stated that the Agency telework policy allowed up to four days per week of telework with supervisory approval. The Assistant Director for Army Contracting Command (ACC), S1, stated that she received three letters requesting accommodation from Complainant - November 10, 2016, January 30, 2017, and March 30, 2017. S1 stated that she did not deny Complainant’s request, but rather provided alternate accommodations. S1 stated, ultimately, she approved three total telework days per week, a more isolated and quiet work area, flexible work times, and the flexibility to take leave when needed. S1 stated that Complainant’s medical documentation did not support five days per week and Complainant performed satisfactorily while working in the office. S1 stated that she determined that the March 30, 2017 documentation provided by Complainant “did not support the request for additional accommodations or warrant a change to the original accommodation that I had already provided.” S1 stated that she consulted with the Agency EEO and Disability Program Manager (DPM), and the March 30 medical documentation recommended Complainant telework “when possible.” S1 stated that she offered a total of two telework days per week and Complainant’s pick of any one of three cubicles on an isolated and quieter floor, which would eliminate distractions such as constant printer noise or staff entering and exiting consistently. S1 stated that OSBP is an advocate for small businesses so it is very customer-focused and customer-oriented. S1 stated that OSBP performs outreach and meets with small businesses and the contracting community face-to-face. S1 stated that Procurement Analysts meet to discuss regulations affecting small businesses. S1 stated that GS-14 Procurement Analysts are advisors and team-leads in the office. S1 stated that there are five analysts in ACC, and they have to be ready to brief her, senior executive service level staff, the Commanding General, the Chief of Staff, and external organizations. S1 added that the staff sometimes sits in the conference room and brainstorms together. S1 stated that Complainant’s essential duties are “to meet one-on-one with our small business firms to discuss their capabilities, provide them information on how to do business with the government, identify potential contracting opportunities, [and] support outreach events.” 2020000022 4 S1 stated that face-to-face interaction was most effective for outreach, meetings, and training. S1 stated the office was small so she had to coordinate telework days for analysts to ensure in-office coverage. Also, S1 stated that she told Complainant that she could put up a knock first sign on her work-space and could contact S1 if she would not be in office by 9:00 a.m. so that she could extend her start/end times accordingly or take leave. S1 stated that she approved 240 hours of advanced sick leave for Complainant in May/June 2017. S1 noted, in May 2017, ACC and the Army Materials Command consolidated and moved to the second floor. She stated, due to the consolidation, she needed Complainant in office rather than consecutive days out of the office. (S1 changed Complainant’s telework days to Wednesday and Friday.) S1 stated that she did not originally have a private office to offer Complainant, but she was able to give her an office in August 2017. In pertinent part, the record contains the documents that follow. · A Reasonable Accommodation Request, dated October 17, 2016, requesting regular schedule telework four days per week and flexible start and end times. · Letter dated November 9, 2016 from Complainant’s Licensed Professional Counselor (LPC) stating, “If [Complainant] was allowed to work from home, it would facilitate her ability to manage the stressors in her life. This work accommodation would be very helpful in her therapeutic process.” · January 12, 2017 response from Agency to Complainant’s request for accommodation.5 The Agency requested additional medical documentation stating that information on record for her Family and Medical Leave Act (FMLA) request stated that “flare ups” might occur four to five times per month, which conflicts with Complainant’s request for four days per week teleworking. Also, the Agency asked for information on what triggered Complainant’s panic attacks and how the Agency might accommodate in the workplace. · January 31, 2017 email from S1 to Complainant, approving an interim accommodation of two additional telework days (Wednesday and Thursday) per week pending a final determination based on Complainant’s additional medical documentation. · February 14, 2017 approval of alternative accommodation of one additional telework day per week and relocation to a workstation in “an isolated and quiet environment,” with reassessment in one year. · February 16, 2017 reasonable accommodation request for flexible start and end times, door noise to alert of others’ entrance and exit, dim adjustable lighting, presence of support animal during entire workday, teleworking five days per 5 The Agency stated that it received Complainant’s request December 6, 2016. 2020000022 5 week, a private office, a white noise machine and noise cancelling headphones, longer breaks, flexible leave approval, restructure of duties and tasks to only essential ones, written work assignments with clear review and due dates and a self-paced workload, a designated area and personal assistance for use during anxiety attacks, elimination of work place stress and toxic environment, an ergonomic workstation and chair and larger monitor and keyboard, change of supervisory methods to prevent multiple inquiries, and a workstation with quick access to a restroom.6 · February 24, 2017 email request from Disability Program Manager, DPM, for additional medical documentation to support Complainant’s second request. DPM asked why the alternate accommodation (two total days of telework and isolated and quieter workspace would not work for Complainant). DPM also asked the type of support animal recommended and how it would assist Complainant.7 · March 28, 2017 letter from LPC stating: “Prognosis: Poor; for working in any environment, Federal or non-Federal. [Complainant’s] condition is severe enough that she requires being off work periodically and major work accommodations.” LPC recommended: “When possible, allow [Complainant] to work from home where she will have control of her psychical and psychological environment.” · May 3, 2017 memorandum granting reasonable accommodation of two additional telework days (Monday and Thursday) per week, flexibility with start and end time, and flexibility with unplanned leave approval. The accommodation would last for three months and then be reassessed. 6 Complainant provided a January 30, 2017 letter from LPC stating, “[Complainant] has intermittent episodes of panic attacks with depression. [Complainant] is unable to focus, concentrate on job task, unable to control emotions, and unable to respond to people appropriately. Occupational problem . . . patient sees her work environment as emotionally toxic, hostile, and it generates fear and anxiety with depression.” LPC stated that Complainant’s condition was severe and permanent. LPC recommended: A. Reduce distractions in work area. Allow her to work in isolated area. B. Flexible Work Schedule. C. Allow presence of patient’s support animal for duration of work day. D. Allow [Complainant] longer breaks as needed and additional time to complete tasks. E. Allow [Complainant] to work from home. 7 Complainant stated that DPM asked to contact her doctor directly for clarification and she told DPM to put her questions in writing instead. 2020000022 6 · FMLA documentation for Complainant’s absence June 1, 2017 through August 24, 2017. S1 approved 240 hours of advanced sick leave for this absence. · August 28, 2017 email granting reasonable accommodation on one additional telework day (Thursday) per week, relocation to a different cubicle, flexible start and end times. The accommodation would be for a period of ninety days. S1 noted that the office consolidated with another and moved to a new location. S1 also noted that Complainant was resistant to trying alternate accommodations. · September 8, 2017 email moving Complainant’s regular telework day to Wednesday and adding another telework day on Tuesday. The Agency added that Complainant would move to a private office and could put a “knock before entering” sign, but a bell would be disruptive to the rest of the office. · September 19, 2017 memorandum reiterating accommodations offered and stating that it would be an undue hardship for Complainant to telework five days per week. The Agency stated that senior advisor functions are highly interactive, team oriented, and require regular in-person interactions, subject matter expertise, and expert representation. Further, the record reveals that Complainant used leave during October 2016; November 2016; December 9, 2016 to January 17, 2017; April 16 -17, 19, 24 - 26, 2017; and May 8 - July 28, 2017. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the decision stated that Complainant failed to show that the Agency’s actions were based on age or retaliation. Further, the final decision stated that the Agency engaged Complainant in the interactive process and provided alternative accommodations to address her medical documentation. The decision noted that Complainant’s performance in the office was satisfactory. The decision stated that Complainant did not show that the accommodations the Agency offered were ineffective. Further, the Agency stated that the Agency found the medical documentation did not support the need to telework five days per week and Complainant was needed in the office. The decision stated that a stress-free work environment is impractical. The instant appeal from Complainant followed. 2020000022 7 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”). Under the Commission's regulations, an agency is required to make reasonable accommodation to 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. §§ 1630.2(o) and (p). 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 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, 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 Service, EEOC Appeal No. 01931005 (February 17, 1994). We find the record sufficient to show Complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. Melanie F. v. Dept. of Homeland Security, EEOC Appeal No. 0120150163 (May 19, 2017) (citing 29 C.F.R. § 1630.2(g)). Here, the record shows that Complainant has PTSD, Panic Disorder, and Major Depressive Disorder, and her mental health conditions impact her ability to concentrate and focus, affect her interpersonal skills, and make it difficult for her to feel safe and cause her to be hyper-vigilante in some situations. Complainant stated that her physical conditions cause her constant pain such that she sometimes has difficulty caring for herself. Complainant stated that her life is impacted by her conditions all the time, she takes 10 medications, and consults with a psychologist, psychiatrist, social worker, and medical specialists. Complainant stated that medication and breathing techniques help her to function daily. Complainant stated, without mitigating measures for her mental and physical conditions, there are times she would not be able to get out of bed. 2020000022 8 A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Complainant stated that her position was sedentary and required research, analysis, and clear and concise writing. Her supervisor, S1, stated that Complainant’s essential duties are “to meet one-on-one with our small business firms to discuss their capabilities, provide them information on how to do business with the government, identify potential contracting opportunities, [and] support outreach events.” S1 stated that Complainant performed satisfactorily. Based on the specific circumstances herein, we find that the Agency did not violate the Rehabilitation Act. The Agency made sufficient efforts to accommodate Complainant’s disability with alternative accommodations. The record shows, ultimately, the Agency provided Complainant three then two total telework days per week, a private office, flexible start and end times, approved leave as necessary, and 240 hours of advanced sick leave. The record reveals Complainant was granted leave on various days in October 2016 and November 2016; December 9, 2016 to January 31, 2017; February 3, 2017; April 16 - 17, 19, 24 - 26, 2017; May 8 - July 28, 2017; and some time in August 2017. Further, the Agency offered Complainant an accommodation of an alternate work-space that would be quieter and more isolated, but Complainant would not try the new workspace, stating it would not be effective. Also, Complainant’s medical documentation did not quantify the number of days per week Complainant needed to telework. The last medical documentation stated, “When possible, allow [Complainant] to work from home where she will have control of her psychical and psychological environment.” We remind Complainant that individuals are entitled to an effective accommodation, not an accommodation of choice. Castaneda, EEOC Appeal No. 01931005. Further, based on the above, we find the Agency did not discriminate against Complainant based on age or reprisal when it provided alternative accommodations (rather than Complainant’s accommodations of choice) to Complainant. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 2020000022 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). 2020000022 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 May 24, 2021 Date