Derrick P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Mar 6, 2019

0120171771 (E.E.O.C. Mar. 6, 2019)

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

Derrick P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120171771

Agency No. OCFO-CF-2016-00575

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 10, 2017, finding no discrimination
regarding his 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
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounting
Technician (AT), GS-0525-07, Vendor and Customer Maintenance Section (VCMS), Mater Data
Management Branch, Reporting, Reconciliation and Analyst Division, Financial Management
Services, with the Agency’s Office of Chief Financial Officer, located in New Orleans,
Louisiana.

On August 27, 2016, Complainant filed his complaint alleging discrimination based on race
(Black), color (brown), sex (male), and disability (depression, insomnia, unstable right shoulder,
and cervical and thoracic stenosis) when he was subjected to harassment in that:

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) Since April 20, 2016, management failed to accommodate his disability by refusing to
allow him to work a maxiflex schedule; and

(2) From May 2, 2016, to June 6, 2016, management denied his request for a reasonable
accommodation when he was not permitted to telework while he recovered from shoulder
surgery.

After completion of the investigation of the complaint, Complainant did not request a hearing
before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision
concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut. The Agency found no discrimination.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. 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.
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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).

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant 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 a reasonable accommodation. See Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 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. See 29 C.F.R. §
1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this
decision) that Complainant is an individual with a disability.

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. As an AT, Complainant maintained the vendor master records
for customers and vendors under contract to the Agency components.

Regarding claim (1), Complainant indicated that a maxiflex schedule allowed staff members to
arrive at work early, request time for medical appointments, and make up the time used within
the 80-hour pay period. Although notice of any extended absences was required, leave slips and
documentation in the Agency time and attendance records system was not required. The Agency
indicated that in 2015 – 2016, supervisory and nonsupervisory staff, including Complainant,
assigned to VCMS were not approved for maxiflex or telework schedules because of highly
sensitive workloads and because there was no longer enough work to support more than a regular
tour of duty. The Agency stated that if an employee worked over 40 hours on maxiflex, the
employee would receive overtime or compensatory time, which was not allowed because there
was no work to support it. Complainant does not claim that he was treated differently than other
ATs regarding the maxiflex; nor does he claim that he was denied leave for his medical
appointments.

Regarding claim (2), the Agency indicated that all ATs, including Complainant, had never been
allowed to telework because ATs printed hard-copy documents which were highly sensitive and
confidential, i.e., the Personal Identifiable Information containing Social Security Numbers,
Employee Identification Numbers, names, addresses-mail address, and banking information.
The Agency stated that in March – April 2016, Complainant was approved for 240 hours of
advanced sick leave for his surgery/recovery for back/shoulder. Complainant does not claim that
he was treated differently than other ATs regarding telework; nor does he claim that he was
denied leave for his surgery/recovery.
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After a review of the record, we find that Complainant failed to show that he was denied a
reasonable accommodation or that any Agency actions were motivated by discrimination.
Complainant did not produce any evidence or medical justification to show that his working on
maxiflex schedule or teleworking would effectively accommodate his disability to perform his
work. He does not dispute the fact that he was granted flexible and advanced leave in order to
accommodate his surgery and medical appointments. Despite his claim, it is noted that
Complainant was not entitled to an accommodation of his choice, i.e., maxiflex schedule or
telework. See 29 C.F.R. § 1630.9; EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, at Question 9
(October 17, 2002).

Regarding his claim of harassment, we find that Complainant failed to establish that the actions
were related to any protected basis of discrimination. After a review of the record, we find that
Complainant failed to show that there were any similarly situated employees not in his protected
groups who were treated differently under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s actions was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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.
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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.

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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

March 6, 2019
Date