0120170304
10-04-2018
Starr R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Starr R.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
Agency.
Appeal No. 0120170304
Agency No. 200305862014101021
DECISION
On October 19, 2016, 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 September 28, 2016, 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., and 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 (FAD).
ISSUES PRESENTED
Whether Complainant was discriminated against based on disability (blepharospasms and meige - light sensitivity) and reprisal (prior EEO activity) when her request to telework in her existing position was denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telephone Advice Pharmacist, GS-12 at the Agency's Sunny Montgomery VA Medical Center facility in Jackson, Mississippi. She worked in the Telephone Advice Center. On February 18, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her as indicated above. The record indicates that Complainant had been provided with a reasonable accommodation permitting her to telecommute.2 This arrangement was memorialized in a settlement agreement dated October 25, 2011. Under the terms of the settle agreement, Complainant was placed in the position of Staff Pharmacist - Telephone Advice GS-660-11 and performed telework from 7:30 a.m. to 4:00 p.m.
The agreement stipulated that Complainant "remained subject to the Agency regulations allowing telework in the appropriate circumstances." The agreement also resolved all of Complainant's prior EEO Complaints, and her civil lawsuits.
Subsequently, the Agency denied Complainant's request to continue teleworking in her existing position. The reason for the denial was a new policy by management changing of the conditions under which the Telephone Advice Center operated. According to the Agency, it changed the conditions relating to the Telephone Advice Centers to improve its operations, provide for monitoring of all calls, and to increase speed and call resolution. The record indicates that no employee in the Telephone Advice Center was allowed to perform work outside of the workplace.
The Agency, through two of its managers, engaged Complainant in an interactive effort to accommodate her conditions given the changes in Agency policy regarding the Telephone Advice Center. She was given multiple offers to telecommute in other nursing positions. Complainant, however, rejected the offers.
Complainant contends that the Agency's offers were not made in writing (a claim which is denied by the Agency) and that the Agency violated the settlement agreement that permitted her to remain in her position. The Agency contends that it was in compliance with the settlement agreement because the language of the agreement provided that Complainant remained subject to Agency regulations allowing telework in appropriate circumstances.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued the FAD 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.
CONTENTIONS ON APPEAL
Complainant's statement on appeal reiterates her contention that she was denied a reasonable accommodation and that the settlement agreement with the Agency was violated.
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").
At the outset, we note that to the extent Complainant believes that its settlement agreement with the Agency has been violated, she needs to comply with the procedures set forth in 29 C.F.R. � 1614.504(a). Accordingly, we will not address this issue in the decision herein.
Reasonable Accommodation
In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).
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(c) and (p). The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience. education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
In this case, the Agency changed its operational model for the Telephone Advice Center, and it no longer allowed telecommuting with phones not located in the Center. The Agency's decision applied to everyone in that department. For purposes of this decision, we will assume that Complainant is a qualified individual with a disability. We note, however, that while individuals with disabilities are entitled to reasonable accommodations, they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). The record indicates that the Agency offered Complainant several alternative accommodations in other nursing positions that would have allowed her to continue teleworking. Complainant, however, rejected those offers. Accordingly, we do not find that she was denied a reasonable accommodation.
Reprisal
Complainant, in order to establish that she was subjected to disparate treatment based on her prior EEO activity, must satisfy the three-part evidentiary scheme set forth in 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden 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). Third, should the Agency carry its burden, Complainant must then 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 Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination, we find that the Agency provided a legitimate, non-discriminatory reason for changing its operational policies at the Telephone Advice Center, and that these changes affected all employees, regardless of their prior EEO activity. We find no persuasive evidence of pretext in this case. As the record indicates Complainant's EEO activity was two or more years before the Agency's policy changes.
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 FAD.
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 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 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
_10/4/18_________________
Date
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.
2 Per her doctor's orders, Complainant needed to avoid extreme lights, laser lights, stressful environments and group interactions.
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