Wilburn R.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120171323 (E.E.O.C. Oct. 18, 2018)

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

Wilburn R.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120171323

Hearing No. 570-2012-00938X

Agency No. 10-CO-FAS-NAD-36

DECISION

On February 21, 2017, 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
February 10, 2017 final order concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of 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

During the period at issue, Complainant worked as a National Account Management Specialist,
GS-0301-13 at the Agency’s Accounts and Customer Relations Department of the Federal
Acquisition Services in Arlington, Virginia.

On May 27, 2010, Complainant filed a formal EEO complaint, claiming that the Agency
discriminated against him based on disability (bladder cancer) and age (62) when, on or about
March 22, 2010, his request for a reasonable accommodation was denied.

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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The undisputed facts of record indicate that on or around March 15, 2010, Complainant
submitted GSA Form 3676, to his first line supervisor, formally requesting a reasonable
accommodation. Specifically, Complainant requested that the Agency allow him to work from
home on Monday, Thursday and Friday, or more days each week if necessary. Complainant
provided a copy of a medical document dated March 3, 2010 which indicated that Complainant
was under medical care and treatment for bladder cancer since 1995. The document described
the course of Complainant’s medical treatment and indicated that during treatment and
surveillance procedures, it was “desirable for [Complainant] to work at home to better manage
fatigue and frequent and urgent trips to the bathroom.” ROI Exhibit 10, page 36.

After reviewing Complainant’s request for accommodation, Complainant’s first line supervisor
issued Complainant a memorandum dated March 22, 2010. Therein, Complainant’s supervisor
advised Complainant that the medical documentation provided was insufficient, because the
documentation did not adequately explain the effects of Complainant’s medical condition on his
ability to perform the essential duties of his job. The Agency’s memorandum advised
Complainant that without additional information regarding the nature of Complainant’s condition
and how it limited his ability to perform his job, the Agency could not make an informed
decision on Complainant’s accommodation request. The Agency requested that Complainant
provide a detailed medical statement describing the effects of his medical condition on his daily
activities and ability to work effectively. Moreover, the Agency’s memorandum informed
Complainant that his failure to provide appropriate medical documentation could result in a
denial of reasonable accommodation.

Complainant did not respond to the March 22, 2010 request for medical documentation. The
Agency sent an email to Complainant on April 29, 2010, inquiring as to the status of the
requested documentation necessary to decide on Complainant’s request. Complainant’s counsel
on record at the time, informed the Agency that Complainant had provided sufficient medical
documentation and that no additional documentation would be forthcoming. Although
Complainant averred that his medical condition necessitated an accommodation, he failed to
respond to the Agency’s repeated requests to provide documentation to support his contention
regarding his disabling condition.

After an 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). Complainant timely requested a hearing.
When the Complainant did not object, the AJ assigned to the case granted the Agency’s June 3,
2016, motion for a decision without a hearing and issued a decision by summary judgment in
favor of the Agency on June 30, 2016. 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.

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ANALYSIS AND FINDINGS

Summary Judgment Decision

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Here,
while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to
point with any specificity to particular evidence in the investigative file or other evidence of
record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Reasonable Accommodation

The Commission's regulations require an Agency to make reasonable accommodation for the
known physical and mental limitations of a qualified individual with a disability unless it can
show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). 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, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

Essential functions are the fundamental job duties of the employment position the individual
with a disability holds or desires. 29 C.F.R. § 1630.2(n).
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A function may be essential, for example, because the reason the position exists is to perform
that function or there are a limited number of employees available among whom the performance
of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular
function is essential includes the employer's judgment as to which functions are essential; written
job descriptions; and the amount of time spent on performing that function. Id. at § 1630.2(n)(3).

We assume, for purpose of analysis only, and without so finding, that Complainant is an
individual with a disability. Complainant did not provide the Agency with the medical
documentation needed to determine whether he was a qualified individual with a disability.
Despite several requests for the necessary documentation and specific information as to what
was needed, Complainant did not provide the necessary medical documentation. We
acknowledge that Complainant provided the Agency with 432 pages of medical records some of
which were relevant to the treatment of Complainant’s bladder cancer, while others were
unrelated to Complainant’s current health condition as it relates to his request to telework at an
accommodation for his disability. However, Complainant nevertheless failed to provide the
Agency with material needed to make a decision, despite the volume of documentation
submitted. The Commission has held that, if an individual's disability or need for reasonable
accommodation is not obvious, and the person refuses to provide the reasonable documentation
requested by the employer, then the individual is not entitled to reasonable accommodation.
Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012).

Disparate Treatment : Age

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

Finally, on the basis of age, we determine that the record supports the AJ’s finding that
Complainant: (1) did not identify any similarly situated individuals outside his protected age
group who were provided with accommodations similar to that which he requested; and (2)
Complainant provided no nexus between his age and the accommodation requested. The AJ’s
finding of no discrimination based on age was proper.

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CONCLUSION

We AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing, finding
no discrimination.

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.
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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

October 18, 2018
Date