Shad R.,1 Complainant,v.W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Jun 14, 2019

0120181432 (E.E.O.C. Jun. 14, 2019)

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

Shad R.,1
Complainant,

v.

W. Thomas Reeder,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120181432

Agency No. FC17004F

DECISION

On March 19, 2018, 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
March 1, 2018 final agency decision (FAD) 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. 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 Student Trainee
(Human Resources Assistant) at the Agency’s Human Resources Department, Customer Relations
and Business Analytics Division in Washington, D.C. Complainant entered duty with the Agency
on August 8, 2016, on a temporary appointment for a period not to exceed August 8, 2017.

Complainant averred that he has the conditions of anxiety disorder and obsessive-compulsive
disorder, which were diagnosed in May 2011. Complainant stated that his conditions do not affect
his ability to perform major life functions, but his anxiety level increases when engaging in social
activities, such as when he is in large gatherings and enclosed spaces.

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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On or about September 14, 2016, Complainant met with the Agency’s Reasonable
Accommodation Coordinator (RAC), where he requested telework and/or desk relocation as a
reasonable accommodation. The RAC offered Complainant a new desk location on the second
floor, but Complainant declined. Following the meeting, Complainant emailed RAC, noting that
he could not see his physician until October 13, 2016, and requesting a copy of the Reasonable
Accommodation Medical Certification form. In response, RAC provided Complainant with the
form and stated that once he received the completed form, he would determine whether
Complainant was a qualified individual with a disability and continue the reasonable
accommodation interactive process.

On October 5, 2016, Complainant’s first-line supervisor (S1) issued Complainant a Notice of
Termination. The notice explained that during Complainant’s two-month tenure, S1 had observed
a failure on Complainant’s part to complete his assignments and report to her when his assignments
were complete. S1 added that Complainant failed to follow instructions in a timely fashion and
build effective relationships. The notice indicated that Complainant was assigned the task of
updating performance statistics in August 2016 and although S1 assisted him several times,
Complainant failed to report to her that he had completed the task so that she could review his
work. S1 explained that she had to follow up with Complainant and counseled him on informing
her when tasks were completed. However, within weeks, she had to follow up on his work on the
Labor Management Forum. The notice described additional concerns with the timeliness of
Complainant’s work; failure to deliver Honorary Award plaques despite the instruction to do so;
Complainant’s failure to attend a meeting although the meeting venue was changed pursuant to his
request; and Complainant’s failure to answer S1’s call regarding the status of a task.

On November 17, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (mental) when:

1. On October 7, 2016, Complainant was terminated from his temporary appointment;
and

2. During the month of September 2016, Complainant’s supervisor failed to provide
Complainant with a reasonable accommodation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

In the FAD, the Agency explained that Complainant established a prima facie case of disability
discrimination, but management articulated legitimate, nondiscriminatory reasons for
Complainant’s termination. Specifically, S1 affirmed that she terminated Complainant’s
employment two months into his temporary appointment because he failed to complete
assignments and report to her when he had completed assigned tasks. S1 further stated that
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Complainant failed to show up for a scheduled meeting with a customer. As for Complainant’s
assertion that S1 lacked credibility based on an audio transcript and S1’s affidavit, the Agency
noted that there was no way to substantiate that the audio transcript constituted a memorialization
of the complete conversation that took place between S1 and Complainant.

As for Complainant’s failure to accommodate claim, the Agency found that it began to engage in
the interactive process with Complainant, as evidenced by a September 14, 2016 meeting between
Complainant and RAC, where Complainant was given the reasonable accommodation medical
certification. During the meeting, Complainant requested to use a conference room and RAC
offered an alternative location, which Complainant declined. While Complainant stated that he
declined the alternative location because he feared S1’s reaction, the Agency asserted that it could
not be held at fault for Complainant’s decision. As to Complainant’s argument that S1 failed to
engage in the interactive process, the Agency maintained that S1 followed the Agency’s
Reasonable Accommodation Policy by referring Complainant to RAC. Moreover, RAC engaged
in the interactive process with Complainant and attempted to provide a temporary reasonable
accommodation pending receipt of medical documentation. Accordingly, the Agency found that
management had not violated the Rehabilitation Act.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates that the Agency failed to provide him with a reasonable
accommodation. Complainant contends that the FAD omitted his rebuttals and interrogatories
within the record. Complainant alleges that S1’s statements lack credibility and that S1 terminated
his employment before he could provide documentation to continue the interactive process.
Complainant takes issue with the allegations in the Notice of Termination and asserts that he was
terminated for missing a non-mandatory meeting. Complainant avers that the Agency neglected
to further interrogate RAC and the EEO Specialist. Complainant concludes that the FAD is biased
and faulty, noting that the Agency disregarded audio recordings, key elements of sworn statements
from Complainant and witnesses, and audio transcripts.

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”).

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of disability discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding Complainant’s termination, S1 affirmed that
she terminated Complainant’s employment based on performance issues, as noted in the October
5, 2016 Notice of Termination. ROI, at 113, 118, 121. S1 stated that Complainant asserted that
he had a disability during the termination meeting, to which S1 informed Complainant that his
termination was strictly related to performance and had nothing to do with a disability. Id. at 113.
S1 stressed that she had no reason to believe Complainant’s performance issues were related to a
medical condition. Id at 111. She explained that Complainant mentioned that he was anxious or
nervous during conversation, which she attributed to his status as a new employee, but that she
was not aware that Complainant had a disability. Id. at 110. However, once Complainant
requested to use the conference room, she referred him to RAC. Id. at 111, 122. S1 asserted that
RAC did not provide her with any details of their conversation or indicate that he decided whether
Complainant had a disability. Id.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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 animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination as
alleged.

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Denial of Reasonable Accommodation

The Commission notes that an Agency is required to make reasonable accommodation 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. To
establish a denial of reasonable accommodation, Complainant must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he 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. The Commission will assume without deciding (for the purposes of
this decision) that Complainant is an individual with a disability.

RAC explained that he is responsible for processing the Agency’s reasonable accommodation
requests and informs the requestors of the decision to grant or deny the requests. ROI, at 161-162.
He added that with respect to Complainant’s request, he met with Complainant on September 14,
2016, and Complainant requested to telework and to relocate his desk to a conference room as his
private office as reasonable accommodations. Id. at 163. RAC stated that it was not feasible for
Complainant to use a conference room that all Human Resources employees could access and that
he instead offered Complainant a new desk location in the department’s second-floor suite, which
Complainant declined. Id. at 163. In addition, RAC asked S1 if Complainant could be moved by
a window, but Complainant declined that offered arrangement as well. Id. at 122. RAC asserted
that despite providing Complainant with the requisite medical documentation for his doctor to
complete, he never received a completed form or medical documentation to determine if
Complainant was a qualified individual with a disability. Id.

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 (Oct. 17, 2002); see also
Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Furthermore,
when an individual's disability or need for reasonable accommodation is not obvious, and he fails
to provide reasonable documentation requested by the employer, the employer will not be held
liable for failure to provide the requested accommodation. Enforcement Guidance, EEOC No.
915.002, Question 6 (Oct. 17, 2002).

We find that not only did RAC engage in the interactive process with Complainant, but he offered
Complainant a temporary alternative accommodation pending medical documentation. ROI, at
56, 163. Moreover, Complainant acknowledged that RAC “made efforts to provide reasonable
accommodations when he offered to relocate [Complainant’s] office to an environment where
[Complainant] would feel less claustrophobic and more at ease.” Id. at 56. RAC confirmed that
he never received the requested medical documentation in support of Complainant’s request for
accommodation prior to his termination. Id. at 163.

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We note that, although individuals protected under the Rehabilitation Act are entitled to reasonable
accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda
v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Here, Complainant has not
demonstrated that the offered alterative accommodations would have been ineffective. Further,
there is no evidence that Complainant submitted the requested medical documentation in support
of his request. Thus, Complainant has presented no evidence that the Agency was unwilling to
reasonably accommodate him or otherwise improperly denied him reasonable accommodation.

Finally, the Commission notes that a reasonable accommodation is always prospective, meaning
that even once Complainant disclosed his condition and requested reasonable accommodation, he
was entitled to accommodation only from the date of such disclosure. An employer is not barred
from imposing discipline or terminating an employee who, because of a disability, violated a
conduct rule that is job-related for the position in question and is consistent with business necessity.
See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). Complainant has
presented no evidence that he sought any kind of accommodation prior to many of the performance
deficiencies noted by S1 or that he was removed because the Agency did not provide him with
any requested accommodation. Accordingly, the Commission finds that the Agency did not deny
Complainant reasonable accommodation in violation of the Rehabilitation Act.

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 final decision because the preponderance
of the evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
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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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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).
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

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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:
____nature
__________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 14, 2019
Date