Wilfredo M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172680 (E.E.O.C. Dec. 19, 2018)

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

Wilfredo M.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120172680

Hearing No. 531-2016-00339X

Agency No. HHSFDACTP04716

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 12, 2017,
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Regulatory Counsel, GS-12, at the
Agency’s Center for Tobacco Products ("CTP"), Office of Medical Products and Tobacco in
Silver Spring, Maryland.

On March 30, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him and subjected him to a hostile work environment based on
disability and in reprisal for prior protected EEO activity when:

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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1. Complainant’s supervisor retaliated against Complainant for prior EEO activity
when the supervisor gave Complainant a lower Performance Management
Appraisal Program (“PMAP”) rating;

2. on February 17, 2016, Complainant’s supervisor falsely accused Complainant of
not completing a task which was assigned;

3. on February 16, 2018, Complainant’s supervisor failed to meet with Complainant
to discuss outstanding issues regarding a recent contract transition, as well as
requiring Complainant to complete an assignment although Complainant was not
the proper employee assigned to the task;

4. Complainant’s supervisor continued to deny Complainant’s reasonable
accommodation as it relates to Complainant’s disability; and

5. On January 26, 2016, Complainant’s supervisor refused to provide clear
instructions for work assignments that were Standard Operating Procedure
(“SOP”), which was one of Complainant’s approved reasonable accommodations.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
initially requested a hearing but later withdrew his request. On July 12, 2017, the Agency issued
the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant did not submit any additional statements
or briefs in support of his appeal.

ANALYSIS AND FINDINGS

Disparate Treatment:

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, she
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). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant stated that he has been diagnosed with several medical conditions, including
migraine headaches, a number of back and knee problems, eye issues and sleep apnea. He also
has been diagnosed with an adjustment disorder, with anxiety and insomnia.2 He indicated he
had engaged in prior EEO activity when he made a request for reasonable accommodation for his
medical conditions in January 2014, and filed a prior EEO complaint in May 2014. He stated
that although his prior complaint was not against his current supervisor, he believed everyone in
management was aware of it.

Regarding claim 1, Complainant’s first-line supervisor (“S1”) stated that Complainant had two
prior managers in 2015 and S1 consulted with them to determine Complainant’s initial 2015
PMAP rating of 3.8. S1 testified that the union representative informed him that Complainant
would file a grievance if his rating was not changed to a 4. S1 explained that he conferred again
with Complainant’s prior manager and determined that a 4 rating was appropriate and noted that
the change “ha[d] no effect on pay, bonus, [or] promotion.”

The record contains a copy of Complainant’s 2015 PMAP indicating that his overall rating was
adjusted from a 3.8 to a 4.0.

Regarding claim 2, S1 testified that he only inquired from Complainant whether Complainant
had completed the assignment. S1 explained that he requested that Complainant conduct a
research assignment, but Complainant refused and decided to wait and let another employee
complete the assignment. S1 further explained that he instructed Complainant and another
employee (who was departing from the office) to coordinate transitioning contracts over to
Complainant by mid-January 2016. S1 stated that he learned in February 2016 that the task had
not been completed and Complainant acted as if he “didn’t know anything about the contract.”
S1 explained that he provided Complainant a list of instructions to complete the task, including
researching the point of contact for the contract, and Complainant responded by stating that S1
was “aggravating his disability” and that S1 “needed to go to counseling.” S1 further explained
that he inquired about the status assignment because Complainant never indicated whether it had
been completed.

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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Regarding claim 3, S1 explained that he asked Complainant to complete “minor research” and
provide information which was an assignment well within Complainant’s duties as a Contracting
Officer Representative (“COR”).3 S1 further explained that Complainant attempted to schedule
his meeting with S1 on the same day and time that S1 conducted his “standing meeting” every
Friday. S1 stated that all employees have access to his calendar and Complainant could have
selected a day and time which S1 had open on his calendar. S1 further testified that he has
standing one-on-one meetings with all employees, but Complainant has cancelled his meeting
with S1 since February 2016.

The record includes a February 16, 2016 email from S1 to Complainant indicating that S1
informed Complainant that the date and time Complainant selected conflicted with S1’s other
meeting. The email further indicates that S1 encouraged Complainant to pick another date and
time that was convenient for both of them. Another email dated, February 16, 2016, indicates
that S1 requested that Complainant conduct “research so [he] can meet the needs of [the] office.”

Regarding claim 5, S1 explained that no SOP existed for outlining the process CORs were to use
to staff documents for review. However, S1 stated that he ultimately provided Complainant
“detailed” “step-by-step directions” on how to complete the process. Nevertheless, S1 testified
that Complainant “refused to do anything” with this information.

Reasonable Accommodation Request: Claim 4 and Claim 5 in-part

To establish that he was denied a 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 him with a reasonable accommodation. See 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). A qualified person with a
disability is an individual who can perform the essential functions of the position with or without
an accommodation. We presume, without so finding, that Complainant is a “qualified individual
with a disability.”

The record indicates that Complainant requested reasonable accommodations in 2014 and in
2015. The record further indicates that on April 3, 2014, the Agency granted Complainant’s
requests for (1) flexi-time and telework one day per week; (2) noise cancelling headphones; (3) a
computer glare screen; and (4) accessible/designated parking.

The Agency partially approved Complainant’s 2015 reasonable accommodation requests. In a
June 9, 2015 decision, the Agency granted Complainant’s requests to: (1) receive direction,
assignments, and request from one supervisor or individual; (2) engage in direct (streamlined)

3 S1 explains in his affidavit that Complainant is a COR, but was initially working as regulatory
counsel in a different division before he was moved to the contracting branch.
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communication in general; and (3) work independently, particularly when developing work
product.

However, the Agency denied Complainant’s request to only communicate with individuals in his
chain of command. A copy of the June 9, 2014 management decision on this accommodation
request indicated, in pertinent part, that it was denied because:

It will be necessary for the employee [Complainant] to communicate with
colleagues at all levels in order to complete assignments, provide responsive
service in support of program efforts and requirements, deal with unusual
circumstances, and to share knowledge.

We find that the Agency provided sufficient evidence that granting this particular
accommodation would have interfered with Complainant performing some of the essential
functions of his position. Although protected individuals are entitled to reasonable
accommodation under the Rehabilitation Act, they are not necessarily entitled to their
accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9
(October 17, 2002). Here, we find that Complainant has not been unlawfully denied a reasonable
accommodation. The other three accommodations granted Complainant were in lieu of this
accommodation and there has been no showing by Complainant that they were not effective in
addressing his disability-related concerns.

With regard to claim (5), we note that the record fails to indicate that Complainant requested a
reasonable accommodation when he requested a copy of the SOPs from S1. When an individual
decides to request accommodation, the individual or his representative must let the employer
know that he needs an adjustment or change at work for a reason related to a medical condition.
To request accommodation, an individual may use “plain English” and need not mention that
ADAAA/Rehabilitation Act or use the phrase “reasonable accommodation.” See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, EEOC Notice 915.002 (Oct. 17, 2002) (Enforcement Guidance
on Reasonable Accommodation). Here, S2 testified that she was not aware that SOPs were
included in the 2015 Reasonable Accommodation Request Decision she wrote for Complainant.
S2 further stated that “in late January 2016, [Complainant] asked her ‘if there could be a
formalized process for how CORs are supposed to have SOWs approved,’” but Complainant did
not indicate that he was requesting a reasonable accommodation. S2 explained that she
suggested that Complainant follow up with S1 and she further explained that she suggested to S1
that Complainant help draft the SOPs.

The record includes a copy of a January 26, 2016 email from Complainant to S2 where
Complainant addresses his concern and need for a “formalized process” for the purposes of
“avoid[ing] usurpation of COR input and relevance.” Complainant fails to indicate that his
reason for having a “formalized process” is related to his medical condition.

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Based on this evidence, we find that Complainant has not shown that the Agency failed to
provide her a reasonable accommodation.

Harassment

To the extent that Complainant alleged that all matters discussed above were also designed to
subject his to discriminatory harassment, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected basis – in this case, his disability and reprisal
for prior protected EEO activity. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself. Here, as we have
already concluded, Complainant simply has provided inadequate evidence to support his claim
that his treatment was the result of his disability and/or reprisal. A case of harassment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Accordingly, 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 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.
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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

December 19, 2018
Date