Ronnie R.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142699 (E.E.O.C. Sep. 1, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ronnie R.,1
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120142699

Hearing No. 531-2013-00117X

Agency No. 63-2012-01909

DECISION

Complainant filed an appeal from the Agency’s July 25, 2014, final order concerning his 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. The Commission deems the appeal timely and accepts for de novo review. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Telephone Interviewer at the Call Center in Hagerstown, Maryland.
On May 18, 2012, he filed an EEO complaint in which he alleged that on February 29, 2012,
the Branch Chief who was his third-line supervisor (S3) discriminated against him on the bases
of disability (depression) and in reprisal for initiating the instant complaint by denying his
request for a reasonable accommodation and by refusing to allow him to finish a training class
that he had started two weeks earlier. The Agency investigated the complaint and thereafter
notified Complainant of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested
a hearing, the AJ assigned to the case granted the Agency’s June 13, 2013, motion for

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.
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summary judgment over his objection and issued a decision on July 8, 2014, without holding a
hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant began working for the Agency in December 2009. In early August of 2011, his
wife died suddenly and unexpectedly. As a result of this tragedy, he developed severe
depression. Investigative Report Exhibit (IRE) 6, p. 3. S3 granted his requests for extended
absences from August 2011 until February 2012. IRE 7, p. 3. In November 2011,
Complainant submitted a request for a reasonable accommodation that consisted of being
allowed to work Monday through Friday from 9:00 AM until 2:00 PM with weekends off. S3
informed Complainant that she would make every effort to allow him to adhere to that
schedule, but informed him that she could not guarantee it since the Agency needed to conduct
telephone surveys during evening hours, when respondents would be available. On December
11, 2012, S3 notified Complainant that his reasonable accommodation request had been
granted, subject to the needs of the Agency. IRE 7, pp. 3-4, 9; IRE 15; IRE 17, pp. 1-3.

Because Complainant was off work for more than three months, he needed to be retrained in
conducting surveys under the American Community Survey (ACS) program. The next
available ACS training class began on February 22, 2012; consequently, he did not return to
work until that date. Upon his return, both S1 and S3 again informed him that the nature of
the work required flexibility in scheduling, and that because of low respondent availability
during weekday mornings and his low seniority (135th on the seniority list), he would have to
work one full weekend per month and one weekend day for the remainder of each month.
Complainant responded that he could work within those parameters, and began the training
class. IRE 7, pp. 4, 9-10; IRE 16, pp. 2, 9; IRE 19, p. 1.

On February 29, 2012, Complainant submitted a second request for reasonable accommodation
in which he again asked for a guaranteed morning-shift tour during weekdays. IRE 6, p. 4;
IRE 12, p. 1; IRE 13, p. 1. When S3 was told of this request, she called Complainant out of
the training class to discuss the matter. Ex. 6, pp. 4-5. She explained that his request for a
guaranteed weekday morning schedule was contrary to the understanding that they had reached
several days earlier, that weekend work was a necessary condition to the job, and that if he
was unable to meet those requirements, there was no reason for him to complete the February
training class. She averred that Complainant returned his training materials and left, and that
as she was escorting him out, she told him that, “when he was ready to return to work, to let
us know.” IRE 7, p. 10; IRE 19, p. 2. Three weeks later, on March 22, 2012, S3 sent
Complainant a memorandum in which she informed him that his request for accommodation
required some clarifying information from his health care provider, and that upon receipt of
that information, the Agency would make every effort to consider his request. IRE 20, p. 1.

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ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions unless there is evidence of a
discriminatory motivation on the part of the officials responsible for making those decisions.
See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, in order to warrant a hearing on his claims of failure to reasonably accommodate
his disability and reprisal, Complainant would have to present enough evidence to raise a
genuine issue of fact as to whether S3 was motivated by unlawful considerations of his
disability or the instant EEO activity in connection with the incidents described in his
complaint. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000).

Initially, we will address Complainant’s reasonable accommodation claim. The 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); 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. Department of
Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). The Agency concedes that
Complainant is a qualified individual with a disability. The pivotal question is whether its
efforts to accommodate Complainant were sufficient. We agree with the AJ that they were.
While Complainant is entitled to an effective reasonable accommodation, he is not entitled to
the accommodation of his choice. Lynette B. v. Dept. of Justice – Bureau of Alcohol,
Tobacco, Firearms & Explosives, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Here, the
Agency presented the affidavits of S1 and S3 together with emails documenting their
conversations with Complainant which show that Complainant had been made aware that a
weekday morning tour could not be guaranteed, and that S3 had promised Complainant on
several occasions that she would attempt to schedule him to work weekday mornings as much
as possible. Moreover, S3’s March 22 memorandum to Complainant establishes that she never
denied his accommodation request, as he alleged. Rather, she simply needed additional
information from his physician, and that the accommodation request would be considered as
soon as the necessary information was received. Accordingly, we find, as did the AJ that no
genuine issue of material fact exists with respect to Complainant’s request for a reasonable
accommodation.

Moving on to his claim concerning the alleged denial of training, we note that in
circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact regarding S3’s motivation by presenting evidence tending to show that the reason
articulated by S3 for not allowing him to finish the ACS training was a pretext, i.e., not the
real reason but rather a cover for discrimination and reprisal. St. Mary’s Honor Society v.
Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802
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(Nov. 20, 2007), req. for recon. denied EEOC Request No. 0520080211 (May 30, 2008). S3
averred that she told Complainant that there was no point in allowing him to finish the training
if he could not agree to working on weekends, as needed. Complainant has not presented any
sworn statements from other witnesses or documents which contradict the explanation provided
by S3 or that call her veracity into question. We therefore concur with the AJ that no genuine
issue of material fact exists with respect to the opportunity to complete ACS training.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).
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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

September 1, 2016
Date