Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120130579 (E.E.O.C. Mar. 20, 2014)

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

Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120130579

Agency No. ARHQOSA11JUL02893

DECISION
On November 28, 2012, Complainant filed an appeal from the Agency’s November 2, 2012
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. The Commission deems the appeal
timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist
for the National Guard Bureau. After Complainant’s office was relocated from Crystal City,
Virginia to Arlington Hall, Virginia, Complainant’s commute changed. Specifically, she had
to cross a bridge over the Potomac River to get from her home in Waldorf, Maryland to her
new office location. Complainant suffered from multiple phobias, including fear of drowning,
and heavy traffic on the bridge exacerbated her fear.

In June 2011, Complainant initially requested that her start time be changed from 6:30 a.m. to
6:00 a.m. so that she could secure a parking spot at the new office location, but she later
characterized her request as one of reasonable accommodation so as to avoid heavy traffic on
the bridge. Complainant was asked to submit medical documentation in support of her request
for reasonable accommodation. She declined to do so, stating that there was enough medical
documentation on file to support the request. The medical documentation on file indicated that
she has had an anxiety and panic disorder since 2001 and that she needed certain
accommodations to help prevent these attacks at work, including a clear written time line for
completing assignments and advance notice of required travel. Additional documentation
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stated that certain triggers that cause her panic attacks included public transportation, her
relationship with her first line supervisor, and unclear expectations.

Her first (S1) and second (S2) level supervisors initially denied the request because they
believed it was for Complainant’s personal convenience. Once she reframed the request as one
of reasonable accommodation, they requested medical documentation to support it, but
Complainant failed to provide it. Nevertheless, they engaged in the interactive process with
Complainant and ultimately granted it in November 2011. S1 devised an accountability
process to ensure that Complainant was actually working between the time she arrived at work
and the time a supervisor arrived at work. Upon her 6:00 a.m. arrival, Complainant was to
email S1 and then provide a log detailing what work she accomplished between 6:00 a.m. and
7:00 a.m. On one occasion in December 2011, Complainant did not send the email. S1 and S2
questioned her about it, and Complainant claimed to have forgotten. She was not disciplined
or docked time. Soon thereafter, Complainant received a transfer to Andrews Air Force Base,
closer to her home.

On August 12, 2011 (and later amended), Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of color (dark brown), disability and in
reprisal for prior protected EEO activity when:

1. On June 24, 2011, S1 and S2 denied her request for a reasonable accommodation to
adjust her start time;
2. On July 15, 2011, she learned that S1 had issued her a performance award of only
$150.00 for the rating period that ended March 31, 2011;
3. On August 3, 2011, S1 and S2 issued her a memorandum - Subject: Written
Warning for Unprofessional Conduct;
4. On November 10, 2011, S1 and S2 verbally placed her on strict time and attendance
procedures and performance monitoring by requiring her to log on to her computer
to track her arrival time each morning and to provide a daily log of assignments
and/or tasks she performed from 6:00 a.m. through 7:00 a.m.; and
5. On December 14, 2011, S1 and S2 accused her of not arriving at work on time.

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 EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision 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.

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ANALYSIS AND FINDINGS
Claim One - Denial of Reasonable Accommodation

For purposes of this analysis, we will assume that Complainant is a qualified individual with a
disability. Reasonable accommodations are required, absent undue hardship, to enable a
qualified individual with a disability to perform the essential functions of her position or to
enjoy the benefits and privileges of her employment. 29 C.F.R. § 1630.2(o)(1). The
reasonable accommodation requirement is best understood as a means by which barriers to the
equal employment opportunity of an individual with a disability are removed or alleviated. 29
C.F.R. Pt. 1630,App. § 1630.9. Assuming arguendo that Complainant needed an adjusted
start time to perform the essential functions of her position or to enjoy the benefits and
privileges of her employment, we decline to find the Agency liable because Complainant
refused to provide adequate medical documentation supporting her request for an earlier start
time to avoid experiencing a panic attack due to heavy traffic on a bridge. In any event,
despite Complainant’s refusal to submit what was required, management interacted with her to
determine that there was a basis for granting the request and ultimately did so. Finally, there
is no evidence that the Agency had in place rigid work schedules that did not allow for
flexibility as to when work was performed.

Claim Two – Performance Award

Complainant and her only similarly situated co-worker received the identical award amounts
during the relevant period. S1 explained that she had recommended Complainant for a higher
award but that the recommended awards were reduced due to budget limitations on awards for
civilian employees. We find no evidence that the reduced award amount was motivated by
Complainant’s color, disability or prior protected activity.

Claim Three – Discipline

During the second meeting in June 2011 regarding Complainant’s request for an adjusted
starting time, it is undisputed that Complainant demonstrated unprofessional conduct when she
accused S1 of lying and walked out of the meeting. As a result, she was issued a written
warning. Complainant claimed that her conduct was due to a panic attack arising from having
to interact with S1. We note that the Agency is not required to excuse such misconduct if it
would impose the same discipline on an employee without a disability. EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act at Q. 35 (Oct. 17, 2002). Further, there is no evidence that the warning was
motivated by Complainant’s color or prior protected activity.

Claims Four and Five – Time and Attendance Monitoring

The record establishes that there was significant distrust between Complainant and S1, the
source of which is not entirely clear. Given that Complainant was granted permission to report
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to work for a period of time where she would be unsupervised, we find that the Agency had a
legitimate and nondiscriminatory reason for creating an accountability procedure and
questioning her about her failure to adhere to it. Complainant failed to request a hearing so we
do not have the benefit of an AJ’s credibility determinations. We find that Complainant failed
to prove by a preponderance of the evidence that the Agency’s actions were unlawfully
motivated.

CONCLUSION
For the reasons set forth above, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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).
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 20, 2014