Mauricio C., Complainant,v.Jonodev Osceola Chaudhuri, Chairman, National Indian Gaming Commission, Agency.

Equal Employment Opportunity Commission

Jul 27, 2017

0120151615 (E.E.O.C. Jul. 27, 2017)

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

Mauricio C.,
Complainant,

v.

Jonodev Osceola Chaudhuri,
Chairman,
National Indian Gaming Commission,
Agency.

Appeal No. 0120151615

Agency No. NIGC-13-03

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January
28, 2015, final decision concerning his 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 decision.

BACKGROUND

Complainant worked as a Field Auditor at the Agency’s Regional Office in Tulsa, Oklahoma.
On September 9, 2013, Complainant filed an EEO complaint in which he alleged that the Acting
Audit Manager (AAM), his acting immediate supervisor at the time, and the Senior Auditor (SA)
who served as the alternate Acting Audit Manager, discriminated against him on the basis of
disability (speech impediment) by denying his requests to telecommute in April 2011, May 2012,
October 2012, and June 2013. He also alleged that in denying his request for permanent
telework in November 2013, his new supervisor, the permanent Audit Manager (PAM) failed to
provide him with a reasonable accommodation for his disability.

Complainant was hired in May 2009 and voluntarily resigned on March 7, 2014. Investigative
Report (IR) 45-46, 115, 372. From the date of his hiring until May 31, 2011, he was supervised
by the Audit Director. The AAM took over as Complainant’s acting supervisor on June 1, 2011,

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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and served in that capacity until October 6, 2013. IR 93. Complainant was supervised by the
PAM from October 2013 until his resignation in March 2014.

When he was hired, Complainant submitted a Standard From 256 in which he identified a speech
impairment as a disability. He averred that he had a stutter since he was eight years old, and that
the condition was permanent. IR 45-47, 374.

In April, 2011, Complainant submitted his first request to telework to the Chief of Staff.
Complainant’s stated reason for the request was that he needed to maintain two households as
well as a long-distance relationship with his significant other. He averred that on August 11,
2011, the AAM had informed him that the Chief of Staff had denied his request without giving a
reason. IR 48-49, 93.

Complainant next submitted a request for permanent telework from Wichita, Kansas, in May,
2012, and that the AAM acted unilaterally in denying his request. Complainant admitted that his
reasons for wanting to telecommute included the financial and emotional hardships that he said
he was experiencing as a result of having to work in the office. He averred that he was
experiencing severe insomnia and anxiety for which he had to use leave under the Family
Medical Leave Act. IR 49. In an email to Complainant dated May 29, 2012, the AAM informed
Complainant that he had discussed the telework request with the SA and that the two of them had
agreed that it was necessary to deny the request. The AAM stated in the email that the reason for
working in the office was not dictated by the work performed but rather for the need to develop
working relationships with the Regional Director, compliance officers, and other auditors. The
AAM emphasized the need for cooperation and consultation in order to produce better work
products. IR 59, 95,100.

Five months later, Complainant submitted a request to telework from his residence in Gladstone,
Missouri, a northern suburb of Kansas City, during November and December of 2012. The
reasons he gave for this third request was that he needed to perform the necessary repairs and to
prepare the house to be rented out or sold. IR 94. He submitted his initial request on October 17,
2012, and a follow-up to the request on October 23, 2012. IR 12, 50-51, 194-97. On November
1 and November 6, 2012, Complainant received emails from the AAM notifying him that the
Chief of Staff had denied his request without providing a reason. He reiterated his belief that the
Chief of Staff had approved his request and that the AAM had acted unilaterally in denying his
request. IR 51, 62, 95-96, 102, 197, 199.

On June 13, 2013, Complainant submitted a request to permanently telework from his residence
in Gladstone, Missouri, to the AAM and the SA. The reason he gave for the request was that
during the two years and two months that the AAM required him to work out of the Tulsa
Regional Office, he had been experiencing severe insomnia and anxiety. In support of his
request, he submitted a health care provider certification form on which his doctor reported that
his insomnia and anxiety were due to the stress of being away from his family and maintaining
two households. IR 53, 110, 130. In an email to the AAM and the SA dated June 12, 2012,
Complainant cited additional reasons, including the financial burden caused by declining home
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values, his significant other’s acceptance of a job offer in a more distant location, and the desire
to spend more time with his father. IR 63, 68-69. In a response email to Complainant dated June
25, 2012, the AAM informed Complainant that neither he nor the SA had sent the request to the
Chief of Staff or the Deputy Chief of Staff, and that he had decided to deny the request. The
AAM stated in the email that while he understood Complainant’s desire to telework from the
Kansas City area, he maintained that Complainant’s presence in the Tulsa Regional Office would
be in the Agency’s best interests. He also advised Complainant that he could resubmit his
telework request once a permanent Audit Manager was brought on board. IR 53, 62, 132.

A reasonable accommodation request confirmation form dated November 4, 2013, indicates that
Complainant requested that as a reasonable accommodation, he be granted approval to
permanently telework from his home in Gladstone, Missouri. The reason he gave for the request
was that health issues had caused him to miss work, and that those health issues would be
substantially reduced or eliminated if he were allowed to telework permanently, IR 86, 208. A
healthcare provider certification form indicated that he was treated by a physician on September
3, 2013. The physician reported that Complainant had been experiencing insomnia, fatigue, and
generalized anxiety, and that he was having trouble concentrating. In item (5) of the form, the
physician indicated that Complainant would not be incapacitated for a single continuous period
of time due to his medical condition, and that there was no need for follow-up. IR 209-10.
There is no other documentation in the record pertaining to Complainant’s reasonable
accommodation request, which was not referenced at all in Complainant’s affidavit.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
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 him to discrimination as alleged.

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, at Chapter 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”).

2 On page (17) of its final decision, the Agency stated that it had assumed that Complainant’s
request for reasonable accommodation was not granted.

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Complainant claims that the AAM not only discriminated against him on the basis of disability
but failed to offer him a reasonable accommodation.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas. Dept. of Community. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

These first two steps can be dispensed with in this case, however, since the AAM articulated
legitimate and nondiscriminatory reasons for denying Complainant’s multiple requests for
telework, namely that such an arrangement would not serve the needs of the Agency. See U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dept. of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency's proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). In his rebuttal affidavit, Complainant took issue with the AAM’s
assertion that his speech impediment was not a factor in his decision to deny the telework
requests. Complainant averred: “I never stated that my disability was the reason for my telework
requests; it is my assertion that the AAM denied my telework requests based solely on my
disability.” IR 90. However, he has not presented any affidavits, declarations, or unsworn
statements from witnesses other than himself nor documents which contradict the AAM’s stated
reasons for denying his telework requests, or which call into question the AAM’s veracity.
While Complainant did submit the affidavits of two coworkers who emailed the AAM in support
of Complainant’s telework request, both of these individuals averred that they had seen no
indications that the AAM denied Complainant’s requests because of his speech impediment. IR
149, 165. We therefore find, as did the Agency, that Complainant has not established that the
AAM considered his speech impediment in denying his multiple requests to telework.

Reasonable Accommodation

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
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operations. See 29 C.F.R. §§ 1630.2 (o), (p). A qualified individual with a disability is an
“individual with a disability who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential functions of such
position.” 29 C.F.R. § 1630.2(m).

Complainant in this case admitted that his speech impediment was not the reason for his
telework requests. IR 90. Rather, according to the documentation he submitted in support of his
reasonable accommodation request on November 4, 2013, he identified insomnia, fatigue,
anxiety, and other stress-related conditions as the reasons for requesting telework as a reasonable
accommodation. IR 209-10. Consequently, in order to be legally entitled to telework as a
reasonable accommodation, he must first establish that those conditions constitute a disability
within the meaning of the Rehabilitation Act.

A disability is: a physical or mental impairment that substantially limits one or more major life
activities; a record of such impairment; or being regarded as having such an impairment. 29
C.F.R. § 1630.2(g). Factors to determine whether an individual is substantially limited in a
major life activity include: the nature and severity of the impairment; the duration or expected
duration of the impairment; the permanent or long-term impact, or the expected permanent or
long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). Here,
Complainant has not submitted any documents or statements identifying diagnosis, prognosis or
any other indications that his insomnia, anxiety, fatigue, and inability to concentrate are of a
permanent or long-term duration. The fact that Complainant’s doctor reported that he would not
be incapacitated due to those conditions significantly undermines his implied contention that the
conditions he identified as the reasons he needed to telework constitute a disability. We
therefore agree with the Agency that, to the extent that Complainant premises his reasonable
accommodation request on insomnia, anxiety or any condition other than his speech impediment,
he is not an individual with a disability for the purpose of obtaining a reasonable accommodation
consisting of being allowed to permanently telework.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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.
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.
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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

July 27, 2017
Date