0120142794
02-02-2017
Allegra P.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Allegra P.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120142794
Hearing No. 410-2012-00171X
Agency No. IRS080872F
DECISION
The Commission accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 9, 2014 final order 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 reasons that follow, the Agency's final order is AFFIRMED.
On November 4, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability, and reprisal for prior protected EEO when on or around August 4, 2008, she was denied a reasonable accommodation in the form of a transfer to Augusta, Georgia. 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 (AJ). Complainant requested a hearing, and a hearing was held on April 2, 2014. The AJ issued a bench decision immediately following the hearing finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On July 9, 2014, the Agency issued a final order fully implementing the decision. This appeal followed.
Complainant entered on duty with the Agency, in April 1991, transferring from the Social Security Administration. She was working in New Carrollton, Maryland as a management program analyst in the Wage and Investment Division. In 2007, she requested a transfer to Augusta, Georgia because of a family situation. Complainant was instead offered an assignment to Atlanta, Georgia, because it was the headquarters for the Wage and Investment Division, which she accepted. Atlanta is approximately 148 miles from Augusta. Complainant bought a house in Augusta.
In her complaint, Complainant stated that:
"[a]t that time, I mistakenly assumed that I would be able to commute by train or some other means of public transportation between my residence to Atlanta on a daily basis. I never even thought about driving because I knew that since I was involved in a traumatic auto accident 20 years ago, I can only drive short distances. I assumed that my Augusta Atlanta commute would be similar to my Baltimore-New Carrollton commute in which I utilize the Marc train service."
During this time, A-1, a white female, was Complainant's supervisor. Complainant was allowed flexi-place, that is, to work from home during December 2007 and early 2008 from Augusta. In mid-January 2008, however, A-1 asked Complainant to report for duty in Atlanta. Complainant failed to do so and A-1 began to charge her with being AWOL, which ultimately led to her termination. Complainant had, at that time, requested a reasonable accommodation of a transfer to Augusta and/or to work flexi-place, but that was denied by A-1 and her supervisors. Complainant identified her disabilities, in pertinent part, as road phobia and vertigo.
A-1 stated that:
[Complainant] accepted relocation to Atlanta . . . where there was a W&I Submission Processing Headquarters' presence, but moved to Augusta . . . by her own choice, thus creating the driving issue. [Complainant] could have followed processes in place to permanently move to another post of duty, which include applying for other positions, voluntary transfers when positions open, and the hardship process. [Complainant] did not pursue any of those options to relocate to Augusta . . . .
ROI, Ex 8.
A-1, also indicated that it was her intent to make reasonable accommodation efforts to assist and support Complainant but she could not create a position in Augusta.
With respect to Complainant's claim that she was discriminated against due to her race, disability and previous EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for denying Complainant's reassignment request. Complainant requested a transfer, and was offered a transfer to the Atlanta office and the ability to work remotely from her residence. Complainant accepted the Atlanta transfer, but moved to Augusta. Complainant was allowed to work from her home for approximately one month, but, in January 2008, Complainant was asked to report to the Atlanta office but she failed to do so. As a result of her failure to report to duty, Complainant was charged with being AWOL and was ultimately terminated. Assuming Complainant established prima facie cases of discrimination based on race, disability and reprisal, she was unable to show that any conduct on the part of the Agency was based on discriminatory animus, or occurred as a result of her filing the complaint which formed the basis of this appeal. We note A-1's statement that Complainant should have reported to her official post of duty in Atlanta, and requested flexi-place, but she did not report as assigned. According to A-1, had Complainant reported to the Atlanta office she would have considered her flexi-place request. We find no evidence of pretext. Complainant did not establish that employees who were non-Black, non-disabled or with no prior EEO activity were granted transfers or flexi-place after they refused to report to their primary duty stations.
With respect to her claim that she was denied a reasonable accommodation, assuming, arguendo, that Complainant was a qualified individual with a disability, we find that she was not denied a reasonable accommodation. Complainant's accommodation request of reassignment to Augusta and/or to work flexi-place was denied because she did not establish that these requests were necessary to enable her to perform the essential functions of her position. As noted above, the record indicates that she requested these accommodations because she wanted to remain in Augusta because of her family situation and concerns about driving to Atlanta.
Furthermore, the record indicates that she did not provide requested medical documentation that A-1 sought to support Complainant's stated medical reasons for not reporting to the Atlanta office. The Commission has held that an individual is not entitled to reasonable accommodation when the need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012). We find that A-1's request for medical documentation to be reasonable given Complainant's contention that she was unable to drive to Atlanta due to medical conditions.
Finally, the Commission acknowledges that while the suggestions and preferences of an employee seeking a reasonable accommodation are highly relevant and must be considered, an agency is not required to provide the precise accommodation an employee wants, so long as the agency provides a reasonable accommodation that is effective. See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 6 and 8. The Agency providing the accommodation "has the ultimate discretion to choose between effective accommodations ...." 29 C.F.R. � 1630.9 (app.). Again, assuming Complainant was a qualified individual with a disability, it was management's position that the requested, and approved, reassignment to the Atlanta office provided an effective accommodation, and based on the availability of public transportation, would have addressed both Complainant's limited ability to drive to her requested post of duty and her reasons for a hardship transfer. We find that the Agency was not required to transfer Complainant to Augusta under the circumstances.
Finally, Complainant has not established that a vacant, funded position existed in Augusta to which she could have been transferred. In this regard, we note A-1's statement that she was not going to create a position in Augusta. In sum, the Agency had already provided Complainant with an effective accommodation, and she did not produce any evidence to establish that she was entitled to more.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
_2/2/17_________________
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.
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