Ying B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

May 28, 2020

2019005781 (E.E.O.C. May. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ying B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2019005781 Agency No. 6X-000-0046-16 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 June 26, 2019, 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., 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 Disability Compliance Specialist, EAS 23, at the Agency’s EEO Compliance and Appeals in Gaithersburg, Maryland. On October 6, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race (African-American), sex (female), disability (asthma), age, (YOB: 1964), and in reprisal for prior protected EEO activity2 when, since March 24, 2016,3 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 Complainant testified that she filed a prior EEO complaint, Agency No. 6X-000-0034-16, against the same responsible management officials named in the instance complaint. 2019005781 2 and ongoing, Complainant has been denied reasonable accommodation when her request to telework from home five days per week was denied. After the investigation of the claim, 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 subsequently withdrew her request. On June 26, 2019, 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 argues, through counsel, that she was denied a reasonable accommodation and the Agency did not engage in the interactive process. Specifically, Complainant argues that the air filters were insufficient accommodations to address her medical condition and the Agency failed to continue to engage in the interactive process to determine another effective accommodation. ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission's regulations, 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(o) and (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her 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. Complainant testified that she was diagnosed with occupational asthma on March 31, 2016. Complainant explained that because of this condition, she is unable to perform any of her duties in an environment that affects her breathing, or that causes an asthma attack. Complainant testified that on April 5, 2016, she completed the District Reasonable Accommodation Committee (“DRAC”) form and requested to telework five days a week. 3 Complainant clarified in her affidavit that she requested a reasonable accommodation on April 5, 2016. 2019005781 3 Complainant stated that she submitted the DRAC form to her first-level supervisor (“S1”) and that S1 forwarded her request to the Reasonable Accommodation Committee (“RAC”) on April 6, 2016. Complainant acknowledged that S1 updated her on June 14, 2016, and subsequently offered her on July 15, 2016, to work out of the Brentwood office as an interim accommodation while her reasonable accommodation request was still processing. However, Complainant explained that she did not believe that this interim accommodation was effective and Complainant explained that S1 failed to consider her request to telework five days a week as an alternative interim accommodation. Complainant also stated that she returned to the office on November 7, 2016, and experienced coughing bouts and has had to use her inhaler since her return. We find that Complainant has not shown that the Agency violated the Rehabilitation Act as more fully discussed below. A copy of Complainant’s April 5, 2016 DRAC form reflects that Complainant requested to telework from home five days a week and she requested that the Agency check and clean the HVAC systems at the facility where she worked to meet EPA standards before she returned to the office. Complainant further indicated in her request that she has “environmental allergies and [she] believes something in the HVAC has caused [her] to now have asthma.” On July 15, 2016, S1 issued Complainant a letter informing Complainant that the RAC was still evaluating her request because the committee was waiting on additional information. The letter indicates that S1 informed Complainant that she could not provide a permanent accommodation because the RAC had not made a final determination. However, S1 offered to provide Complainant an interim temporary accommodation based on the recommendation of Complainant’s physician of a different work environment. S1 offered to reassign Complainant to another post office from June 18, 2016 through August 31, 2016, and S1 indicated that she would extend this temporary assignment if there had been no determination on Complainant’s reasonable accommodation request by August 31, 2016. Complainant, however, declined the interim accommodation. A copy of Complainant’s time and attendance records indicates that Complainant took sick leave from April 4, 2016 through November 4, 2016 and December 13, 2016 through December 23, 2016. On September 22, 2016, S1 issued Complainant another letter summarizing the updates regarding Complainant’s reasonable accommodation request. The letter indicates that S1 informed Complainant, via email, on July 29, 2016, that the medical consultant for the RAC completed his review of Complainant’s reasonable accommodation request. The letter further indicates that Complainant’s physician noted on July 15, 2016, that Complainant required a HEPA air filter and she required that the air ducts be cleaned every six months. In response, the RAC physician agreed with these recommendations, and further recommended placing a cheese cloth over the vents to capture particles, as well as vacuuming the vents out. 2019005781 4 The letter also notes that an Indoor Air Quality (“IAQ”) study was conducted on July 21, 2016, and a copy of this report was provided to Complainant on August 29, 2016. The IAQ study indicated that the air quality throughout the Capital Metro Area office on the 6th floor had not been negatively impacted and was generally good. The letter further notes that Complainant was scheduled to be seen by her physician on September 15, 2016. However, Complainant had not indicated whether her physician reviewed the IAQ study or whether her physician had any updates on the RAC doctor’s recommendations. Finally, S1 requested that Complainant inform her if Complainant’s doctor recommended a specific HEPA filter or if Complainant’s doctor had any issues with the IAQ report following Complainant’s next physician visit on September 29, 2016. A copy of the IAQ report reflects that the air quality on the Capital Metro Area office 6th floor was “generally good,” the area tested was below the exposure limits for mold, and the indoor quality was not negatively impacted. S1 testified that she was aware of Complainant’s asthma as well as Complainant’s foot condition. S1 noted that Complainant had previously submitted Family Medical Leave Act (“FMLA”) leave in December 2015 for medical restrictions resulting from her foot surgery. Specifically, Complainant could not drive more than 20 - 30 minutes. S1 therefore reassigned Complainant to the Waldorf Center Annex so that Complainant had a shorter commute to work in compliance with her medical restrictions. S1 further explained that after Complainant returned to the Capital Metro Area office, Complainant filed a worker’s compensation claim and requested a reasonable accommodation for her asthma in March 2016. S1 stated that she received Complainant’s request to telework five times a day on April 5, 2016. S1 forwarded this request to the RAC, and she recused herself in this matter because she was the RAC chair and deciding official. S1 acknowledged that Complainant did not meet with the RAC because the committee was waiting to receive information regarding Complainant’s request. Specifically, the RAC was waiting on the results from an IAQ study and the RAC was also waiting to receive additional information from Complainant’s physician. In the meantime, S1 explained that she offered Complainant a temporary placement at another post office, based on Complainant’s physician’s recommendations. Complainant, however, declined this offer. S1 clarified that Complainant’s physician indicated that Complainant “may need to telecommute” or “work in a different environment.” S1 reasoned that the medical RAC consultant subsequently determined that Complainant could work in her regular office with simple accommodations such as installing a HEPA filer and cleaning the air vents, and therefore, there was no need for Complainant to telework or work from an alternative site. Our review of the record indicates that the Agency did not violate the Rehabilitation Act. We note that Complainant took sick leave on April 4, 2016, the day before she submitted her DRAC form, and remained on sick leave through November 4, 2016 and again from December 13 -23, 2016. Thus, Complainant left the Agency before any determination had been made on her reasonable accommodation request. 2019005781 5 Nevertheless, the record reflects that the Agency offered Complainant an alternative accommodation instead of granting her request to telework five times a day. Complainant rejected this offer. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (“Guidance”), Question 9. However, alternative proposed accommodations must be “effective.” See U.S. Airways v. Barnett, 535 U.S. 391, 400(2002). “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. Here, we note that S1 testified that the medical documentation accompanying Complainant’s request indicated that Complainant may “need to telework if this is possible or work in a different environment” as effective accommodations. Consequently, the interim accommodation S1 offered was one of the two recommendations that Complainant’s physician suggested. S1 also acknowledged that Complainant was not “a well-known entity” with her Capital Metro Area HR Manager or the District Manager, and an assignment at another post office located in the Capital Metro Area would have better facilitated resolving this issue, as opposed to Complainant working from home full-time. There is no evidence in the record that Complainant working in another office would have prevented Complainant from performing the essential functions of her position. Moreover, our review of the record reflects that the Agency engaged in the interactive process with Complainant. S1 informed Complainant that she was the RAC chairperson and that she would recuse herself until the committee had made a determination. S1 informed Complainant on July 15, 2016 that the RAC was still reviewing her request, explained what information the RAC was waiting to receive, and offered Complainant an interim accommodation during the review period. S1 also provided Complainant with a copy of the IAQ study results, notified Complainant of the RAC doctor’s recommendations, and offered Complainant the opportunity to ask her physician if he recommended a specific HEPA filter that the Agency should purchase and to inquire whether her physician had any concerns with the IAQ study. Consequently, the Agency was prepared to make changes to meet Complainant’s medical restrictions, however, there is no indication that Complainant accepted these accommodations, rather, Complainant remained home on sick leave. Based on this evidence, we find that Complainant has not shown that the Agency violated the Rehabilitation Act in denying Complainant’s request to telework five days a week. 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). 2019005781 6 For a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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). 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). As previously discussed, we presume that Complainant is an individual with a disability. Our review of the record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. S1 acknowledged that Complainant requested to telework five times a day. However, S1 explained that teleworking was not the only recommendation Complainant’s physician made. S1 indicated that Complainant’s physician indicated that Complainant could work in an alternative location which was the very alternative S1 offered Complainant during the period the RAC was still reviewing Complainant’s request. S1 further noted that Complainant teleworking would not have been an ideal solution with establishing a strong working relationship with the Capital Metro Area HR Manager and the HR District manager as Complainant was not “a well-known entity.” Additionally, when it was later determined by Complainant’s physician that Complainant required a HEPA air filter and cleaning the air ducts every six months, the RAC doctor agreed with these recommendations, suggested additional steps (placement of cheese cloths over vents and vacuuming of the vents) and these suggestions indicated that Complainant could remain at her assigned post office with these accommodations. We conclude that neither during the investigation nor on appeal has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, disability, age, and reprisal for prior protected EEO activity. 2019005781 7 CONCLUSION 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. 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. 2019005781 8 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 May 28, 2020 Date