Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120123031 (E.E.O.C. Apr. 23, 2014)

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

Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120123031

Agency No. BLM-11-0440

Hearing No. 550-2012-00110X

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
June 19, 2012 final Agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Geographic
Information System Specialist at the Agency’s Nevada State Office in Reno, Nevada.
Complainant was diagnosed with diabetes in 1999, after being treated for cancer.
Complainant’s symptoms intensified in 2010, and she needed treatment for diabetic nerve pain
(DNP) in 2011. Complainant experienced pain in her left arm and into her shoulder, and her
diabetic condition affected her immune system, causing her to be more susceptible to illness.
Complainant was granted a flexible schedule in 2006, to enable her to attend doctor’s
appointments without taking leave.

In 2010, Complainant’s supervisor began noticing oddities in Complainant’s use of leave. For
example, Complainant would take annual leave one day and sick leave the next day. Further,
S1 noticed that Complainant was missing work on Mondays and Fridays, and her leave did not
always correspond with medical appointments. In addition, Complainant sometimes failed to
call in or notify S1 that she would be absent. Complainant’s attendance issues created a
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burden on the other employee in the section as there was a backlog of work. S1 began to
work with Complainant to address her failure to be regular in attendance. They agreed that
Complainant would comply with Agency leave policies regarding requests for and use of leave,
would submit sufficient medical documentation in support of sick leave, and that if
Complainant wanted advanced sick leave, she would need to provide supporting documentation
and forward the request to the Deputy State Director, Support Services. S1 also referred
Complainant to the Human Resources Office for information about the voluntary leave
donation program and the Family Medical Leave Act (FMLA). When Complainant’s
attendance problems continued, S1 drafted a Leave Restriction memorandum with the
assistance of the Management Analyst from the Human Resources Office.

On January 27, 2011, Complainant emailed S1 informing him that she had exhausted all of her
leave and needed the correct time and attendance code for 5.5 hours of leave without pay
(LWOP). Complainant had not requested LWOP in advance. In addition, Complainant told
S1 that she had used all of her leave for her DNP condition and that she now had a broken toe.
Complainant told S1 that she had medical documentation for her broken toe, but not for DNP
and that she was not able to get documentation from her doctor until the end of the week.
Complainant requested both advanced leave and FMLA leave to use for the next three months.

That same day, S1 met with Complainant and issued her the Leave Restriction memorandum.
In the memorandum, S1 again encouraged Complainant to contact the Human Resources Office
if she had a medical condition which needed to be addressed. Further, the memorandum
informed Complainant that she needed prior approval for any absence except illness or she
could be charged with absence without leave (AWOL). In addition, the memorandum stated
that Complainant needed to submit leave requests for medical appointments at least one day in
advance and submit sufficient medical documentation upon her return. Likewise, Complainant
was required to submit medical documentation for unanticipated absences related to illness or
emergency. Finally, S1 informed Complainant that he could not approve her request for
advanced leave without supporting medical documentation.

On February 1, 2011, based on her previous email informing him of her DNP condition, S1
sent Complainant a form for her doctor to complete. S1 told Complainant that her doctor
should indicate any accommodation that she may need and that they would all work together to
determine how best to accommodate her. In addition, S1 approved Complainant’s prior
FMLA leave requests contingent upon her submitting sufficient medical documentation. There
is no indication that Complainant ever submitted the requested medical documentation or the
form indicating her need for reasonable accommodation.

On February 8, 2011, Complainant left S1 a voicemail message informing him that she would
not be reporting for work that day and that she had a doctor’s appointment on February 9,
2011. On February 10, 2011, Complainant told S1 that she was hospitalized with pneumonia
and would return to work on February 14, 2011. S1 asked Complainant to submit medical
documentation when she returned. Complainant did not return on February 14, 2011, and did
not notify S1. S1 did not hear from Complainant for several days and became concerned.
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After failing to contact her or her emergency contacts, S1 drove to Complainant’s residence on
February 17, 2011. S1 spoke with Complainant and approved her absence for February 17
and 18, 2011. Complainant indicated to S1 that she would return to work on February 22,
2011, but had a doctor’s appointment on February 23, 2011. Complainant did not report to
work on February 22, 2011, did not request leave, and did not submit medical documentation
in support of her absence. As a result, S1 placed Complainant on AWOL.

On April 11, 2011, S1 issued Complainant a Notice of Proposed Suspension. In the Notice,
S1 charged Complainant with Failure to Follow Established Leave Procedures and for
Unauthorized Absences from Duty. The Notice noted that Complainant had previously been
placed on leave restriction, that she had been counseled about her leave usage and proper
procedures, and that she had been previously advised numerous times how she could request
reasonable accommodation if her medical condition was prohibiting her from performing her
duties. Complainant and her representative submitted a written response. After reviewing the
response, Complainant’s second-level supervisor (S2) sustained parts of the Proposed
Suspension, but reversed 16 of the charged 24.5 hours of AWOL based on Complainant
submitting acceptable documentation to substantiate her absences between February 14 and 23,
2011. As a result, S2 suspended Complainant for three days from June 14 through June 16,
2011.

On July 25, 2011, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the basis of disability when management denied her requests for advanced leave;
placed her on leave restrictions; required her to submit a doctor's note for each day she was
absent from work; disciplined her; and denied her reasonable accommodation. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge. Complainant timely requested a hearing, but subsequently withdrew her request.
Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of disability discrimination and determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1 maintained that he issued
Complainant the Leave Restriction memorandum because she did not follow established
procedures for requesting leave and had excessive absences. S1 noted that Complainant had
previously been advised and counseled about the Agency’s leave policies and procedures.
Further, S1 stated that he could not approve Complainant’s advanced leave requests because
she had demonstrated a pattern of absenteeism and leave abuse. In addition, he issued
Complainant the Notice of Proposed Suspension because she violated the Leave Restriction
memorandum and her excessive absenteeism adversely affected employee morale and the
ability of the office to get work completed. S2 confirmed that he issued Complainant the
three-day suspension based on her failure to adhere to the requirements outlined in the Leave
Restriction memorandum. The Agency found that Complainant failed to show that
management’s reasons for its actions were pretextual.

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With respect to her reasonable accommodation claim, the Agency found that management
officials stated that Complainant did not ever specifically request reasonable accommodation.
Even assuming that her requests for advance leave amounted to a request for accommodation,
the Agency noted that Complainant failed to submit any medical documentation despite
management’s numerous requests. S1 stated that he had no way of knowing what illness
Complainant had or what accommodation was needed as Complainant never supplied the
requested information. Accordingly, the Agency found that Complainant had not been denied
reasonable accommodation in violation of the Rehabilitation Act. As a result, the Agency
concluded that Complainant had not been subjected to disability discrimination as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that she asked for and was “unofficially” denied reasonable
accommodation numerous times in the form of advanced leave and FMLA leave. Further,
Complainant contends that her supervisor did not adequately respond to her requests.
Additionally, Complainant argues that she should have been reprimanded rather than
suspended. Finally, Complainant contends that management was aware of her disability and
she properly requested reasonable accommodation. Accordingly, Complainant requests that
the Commission reverse the FAD.

ANALYSIS AND FINDINGS
Denial of Reasonable Accommodation

Complainant alleged that she was denied reasonable accommodation when her requests for
advanced leave were denied. Under the Commission's regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the Agency can show that accommodation would
cause an undue hardship. 29 C.F.R. § 1630.9. For the purposes of analysis, the Commission
will assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1).

Reasonable accommodation includes modifications or adjustments to the work environment or
the manner in which a position is performed to enable an individual with a disability to
perform the essential functions of the position. 29 C.F.R. § 1630.2(o)(ii). Permitting the use
of accrued paid leave or unpaid leave is a form of reasonable accommodation. 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). An employer does not have to provide paid leave
beyond that which is provided to similarly situated employees. Id

.
Assuming that Complainant’s requests for advanced leave were requests for accommodation,
the Commission finds that the Agency did not violate the Rehabilitation Act in how it
addressed Complainant’s requests. A fair reading of the record indicates that the Agency
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engaged in the interactive process with Complainant several times in attempting to ascertain
more information about Complainant’s condition and what accommodations were possibly
needed. The record further indicates that Complainant never submitted the requested
documentation. Complainant was given several opportunities to provide sufficient
documentation in support of her requests, but she failed to do so. As a result, Complainant’s
requests for advanced leave were denied. The Commission notes that when a complainant
requests an accommodation, an agency is permitted to seek documentation where it is
necessary to determine that the individual has a covered disability for which the requested
accommodation is necessary. See

29 C.F.R. 1630.14; EEOC Appeal No. 01982798 (Aug. 2,
2001). Where an employee fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested
accommodation. Enforcement Guidance, Question 6. Accordingly, the Commission finds that
Complainant has not demonstrated that she was denied a reasonable accommodation in
violation of the Rehabilitation Act.
Disparate Treatment

To prove disparate treatment, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that she was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In the instant case, assuming arguendo that Complainant established a prima facie case of
disability discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1 affirmed that he issued Complainant
the Leave Restriction memorandum in January 2011, because she was not regular in
attendance, there were oddities in her use of leave, and her attendance issues were negatively
affecting the office. ROI, Tab B, at 3-5. The memorandum informed Complainant that her
failure to request leave in advance or to provide sufficient medical documentation for illnesses
could result in her being charged AWOL. Id. at 6-7. S1 noted that he could not approve
Complainant’s requests for advanced leave without supporting documentation. Id. at 4.
Complainant incurred several instances of AWOL in February 2011, after receiving the Leave
Restriction memorandum, and S1 issued Complainant the Notice of Proposed Suspension. Id.
at 8. S2 reviewed the Notice and Complainant’s response, determined that Complainant had
not taken the required steps under the Leave Restriction memorandum, and decided to suspend
Complainant for three days. ROI, Tab C, at 4-7.
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Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. at 256.
As Complainant withdrew her hearing request, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds that the record lacks persuasive evidence that Complainant’s disability was a factor in any
of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established
that she was subjected to discrimination as alleged.

CONCLUSION
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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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,
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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

(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 Date
April 23, 2014
Office of Federal Operations