Edie R.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

0120182185 (E.E.O.C. Sep. 12, 2019)

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

Edie R.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120182185

Hearing No. 420-2016-00068X

Agency No. ARRUCKER13FEB00634

DECISION

On June 12, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 11, 2018, final order 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

Whether the EEOC Administrative Judge properly issued a decision without a hearing finding
that Complainant failed to establish that the Agency’s action constituted a violation of the
Rehabilitation Act.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Personnel
Operations Specialist at the Agency’s U.S. Army Medical Command, Administrative Services
Division, in Fort Rucker, Alabama.

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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Complainant initially applied for a retirement under the Voluntary Early Retirement
Authority/Voluntary Separation Incentive Pay (VERA/VSIP). However, Complainant withdrew
her request. In June 2012, Complainant informed the Chief of the Human Resources Division
(Chief) of her eye condition. She stated that she had to wear glasses while looking at the
computer. Complainant submitted a new VERA/VSIP retirement package, which was approved.
The Chief called Complainant while she was on sick leave. Again, Complainant informed the
Chief that she could not retire because she could not afford to retire. As such, Complainant
rescinded her package again on August 10, 2012.

On August 1, 2012, Complainant applied for sick leave under the Family Medical Leave Act
(FMLA) which ran through September 24, 2012. The Chief asked Complainant to provide
medical documentation in order to approve FMLA leave. Complainant indicated that the doctor
would not supply the documentation. Complainant returned to work on August 15, 2012. The
Chief proceeded to charge Complainant with disciplinary action for being absent without leave.
Complainant provided the Chief with her medical documentation, which released Complainant to
return to work without restrictions. The Chief rescinded the disciplinary action.

On September 19, 2012, Complainant contacted the Human Resources Specialist. The Human
Resources Specialist explained to Complainant that the deadline had passed for Complainant to
submit her VERA/VSIP. Complainant indicated that she wanted to retire, again. The Human
Resources Specialist informed Complainant that she would make an exception. Complainant
completed the request for her retirement and signed a provision stating that the request was
irrevocable.

On September 25, 2012, Complainant spoke with the Colonel about her eye issue and
withdrawing her early retirement request. She also asked for a new assignment. Complainant
contacted Human Resources to ask for another withdrawal of her VERA/VSIP application. The
Agency did not allow Complainant to do so because she had signed the irrevocable agreement.
Further the Agency indicated that the package had been processed and the deadline had passed.
Complainant received $25,000 in incentive pay for her retirement, which became effective
September 30, 2012. Complainant learned that the Agency restructured her prior position from a
GS-9 to a GS-7 position. She believed that the Agency’s action constituted evidence of
discrimination.

On April 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability (eye injury) when she was denied a reasonable
accommodation which resulted in her forced retirement.

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). Complainant timely requested a hearing. The Agency filed a motion
for a decision without a hearing. Complainant responded to the Agency’s motion. The AJ
assigned to the case issued a decision without a hearing on April 30, 2018. The AJ found that
there were no material facts in dispute.
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Further, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its
action and that Complainant failed to show that the Agency’s reason constituted pretext for
disability-based discrimination.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

This appeal followed. Complainant argued that she was subjected to discrimination. She argued
that she did not file a completed retirement package three times. She also claimed that the
Agency restructured her position from a GS-9 to a GS-7 position. The Agency submitted a
statement in opposition to Complainant’s appeal which asked that the Commission affirm its
decision implementing the AJ’s decision finding no discrimination.

ANALYSIS AND FINDINGS

Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
failed to articulate any material facts in dispute. Ultimately, the AJ correctly determined that
there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the
AJ’s issuance of a decision without a hearing was appropriate.

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Denial of Reasonable Accommodation

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, we assume Complainant is an individual with a
disability. 29 C.F.R. § 1630.2(g)(1).

We note that Complainant alleged in her formal complaint that she was “denied a reasonable
accommodation.” However, we find that Complainant has not provided any argument which
demonstrates that the Agency’s decision to deny Complainant’s request to withdraw her
VERA/VSIP retirement application for a third time, following her signing of an irrevocable
agreement, constituted a denial of reasonable accommodation. As such, we conclude that
Complainant has not shown that the alleged discrimination constituted a denial of reasonable
accommodation.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
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. 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, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Again, for the purposes of analysis, we assume Complainant is an individual with a disability,
and established a prima facie claim of discrimination. We find that the Agency provided a
legitimate, nondiscriminatory reason for its action.
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The Agency indicated that Complainant sought a VERA/VSIP on three different occasions and
withdrew her VERA/VSIP twice. When Complainant made her third request for retirement
under the VERA/VSIP program, the Agency obtained Complainant’s signature indicating her
understanding that it was an irrevocable submission of the retirement package. Further, the
Agency indicated that Complainant’s position was restructured after Complainant had submitted
her request for early retirement. Finding that the Agency articulated legitimate,
nondiscriminatory reasons for its action, we turn to Complainant to establish that the Agency’s
reasons were pretext for discrimination. After a review of the record, we determine that
Complainant provided no evidence to establish that the Agency’s reasons were pretext for
discrimination in violation of the Rehabilitation Act.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action.

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.
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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

September 12, 2019
Date