[Redacted], Catrice M., 1 Petitioner,v.Michael J. Rigas, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Petition No. 2020002037 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catrice M.,1 Petitioner, v. Michael J. Rigas, Acting Director, Office of Personnel Management, Agency. Petition No. 2020002037 MSPB No. DC-0752-19-0335-I-1 DECISION On January 8, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Human Resources (HR) Specialist, GS-201-13, at the Agency’s Employment Services facility in Washington, D.C. On July 25, 2017, Petitioner filed a formal complaint alleging that the Agency has subjected her to discriminatory and retaliatory harassment (non-sexual) on the bases of her race (African- American), color (dark brown), sex (female), age (over 40), disability and retaliation (prior EEO activity) since November 2016. Petitioner cited nine incidents as examples of the alleged harassment. After an investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Petitioner timely requested a hearing.2 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2 On May 6, 2019, the assigned EEOC AJ dismissed Petitioner’s request for a hearing and stated that the complaint would be held in abeyance pending the outcome of a MSPB appeal. The AJ 2020002037 2 On October 24, 2018, the Agency issued Petitioner a Proposed Removal containing one charge: Tardiness, with 35 separate specifications, from January 11, 2018 through April 12, 2018. Petitioner’s second-level supervisor issued a Final Decision regarding the Notice of Proposed Removal on February 1, 2019, which notified Petitioner that her appointment was officially terminated due to chronic tardiness. Petitioner filed an appeal with the MSPB concerning her removal on March 1, 2019. A hearing was held before an MSPB Administrative Judge (MSPB AJ). As the MSPB AJ explained, the parties agreed that the only material issue to be decided, to the exclusion of all other issues, was whether Petitioner proved that the removal action was the product of disability discrimination based on the Agency’s failure to grant her accommodation request. Thereafter, the MSPB AJ issued an initial decision finding that Petitioner failed to demonstrate that her removal was based on her disability when the Agency allegedly failed to accommodate her disability. The MSPB AJ determined that Petitioner failed to establish that she was disabled and that, even if she had, she failed to establish that she was a qualified individual with a disability. In support, the MSPB AJ noted that medical documentation indicated that Petitioner was incapable of performing her job functions when her undisclosed condition flared up. Moreover, according to the MSPB AJ, overwhelming evidence indicated that Petitioner’s chronic tardiness resulted from her lengthy and unpredictable commute. Finally, the MSPB AJ noted that numerous individuals had exercised a good-faith effort to engage in the interactive process while Petitioner failed to provide the requested information to consider and/or grant her requested accommodation. Petitioner then filed the instant petition. ARGUMENTS IN PETITION In her petition, Petitioner contends that the MSPB AJ erred in finding that Petitioner is not disabled and that her disability did not limit major life activities. Petitioner asserts that she did not have performance issues and was, therefore, a qualified individual. She adds that the Agency had adequate medical documentation to grant her accommodation request and failed to engage in the interactive process. Petitioner maintains that the requests for medical documentation were excessive and discriminatory, arguing that the Agency and the MSPB AJ erroneously determined that Petitioners’ self-reports of diagnoses to her licensed clinical social worker were insufficient. explained that, after the filing of her EEO complaint, Petitioner was removed from federal service and her removal was the subject of an active appeal before the MSPB. Petitioner alleged that the Agency discriminated against her on the basis of disability (anxiety and depression) when, effective February 1, 2019, Petitioner was terminated from her position. The EEOC AJ determined that the allegations set forth in the EEO complaint, which involved, inter alia, discipline for alleged time and attendance infractions and the Agency’s denial of telework to accommodate Petitioner’s alleged disability, were closely related to the subject matter of Petitioner’s MSPB appeal. 2020002037 3 In response, the Agency argues that Petitioner’s lack of credibility is uncontroverted, based on the MSPB AJ’s findings, which undermines or invalidates her allegations of discrimination. The Agency adds that Petitioner failed to establish at the hearing that she was disabled. The Agency reiterates its position that Petitioner failed to engage in the interactive process, by providing insufficient documentation. STANDARD OF REVIEW EEOC regulations provide that the Commission has jurisdiction over mixed-case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS 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. See 29 C.F.R. §§ 1630.2(o), (p); Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). A request for modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability…[to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. To establish a denial of reasonable accommodation, Petitioner must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). 2020002037 4 “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). When the disability and/or the need for accommodation is not obvious, the agency may ask the employee for reasonable documentation about his/her disability and functional limitations. Enforcement Guidance on Reasonable Accommodation, at Question 6. Assuming, arguendo, that Petitioner is a qualified individual with a disability, we find that the MSPB AJ properly determined that the Agency did not fail to provide Petitioner with a reasonable accommodation. Between July 2017 and November 2018, Petitioner requested full-time telework, flexible work hours, and time off to attend medical appointments as reasonable accommodations. In her requests, Petitioner stated that she needed the requested accommodations to address her anxiety and depression, which she asserted worsened due to the stress on the job and her long commute. Petitioner provided two statements from licensed clinical social workers in connection with her requests, dated July 17, 2017 and August 16, 2017. In the July 2017 statement, Petitioner’s treatment provider stated that Petitioner was seen in counseling through her Employee Assistance Program on January 5, January 17, January 31, and March 30, 2017. The statement went on to note that Petitioner was under a doctor’s care for depression and anxiety with difficulty sleeping and concentrating. Contributing factors included a high level of work-related stress and a long commute. Petitioner’s treatment provider noted that each session with Petitioner included the same or higher levels of stress/anxiety related to being in the job environment. The statement failed to address Petitioner’s requested reasonable accommodations. As for the August 2017 statement, Petitioner’s treatment provider indicated that Petitioner had been diagnosed with adjustment disorder with mixed anxiety and depressed mood. Therein, Petitioner’s treatment provider stated that Petitioner felt that telework would support her in the reduction of symptoms to attend to her work responsibilities. Petitioner’s treatment provider added that Petitioner “at times” struggled with work hours due to sleep difficulties but did not indicate that Petitioner required full-time telework to perform her essential functions as requested. The record indicates that the Agency requested additional documentation from Petitioner to support her reasonable accommodation requests because the documentation that Petitioner submitted did not support her requests or reveal the relationship between her medical condition and her requested accommodations. Specifically, Petitioner’s medical documentation indicated that she was under the care of a physician for anxiety and depression, but Petitioner’s treatment providers failed to address a nexus between the requested accommodations and her disabilities outside of Petitioner’s self-reporting. 2020002037 5 Additionally, the record includes a certification from Petitioner’s health care provider in connection with a FMLA request. Therein, Petitioner’s health care provider indicated that Petitioner had an unspecified medical condition that resulted in flare-ups one time per week, which would last one day per episode and render Petitioner unable to commute. The documentation, however, did not contain the information requested by the Agency for Petitioner’s reasonable accommodation request. Petitioner repeatedly stressed that she required the requested accommodations but did not clarify how the requested accommodations were connected to her medical conditions, and the medical documentation that she submitted did not explain the connection either. Moreover, a review of the record indicates that Petitioner was, in fact, often tardy for a variety of reasons that were not connected to her disability. Specifically, Petitioner and Agency officials testified that Petitioner attributed her tardiness to a long commute and familial obligations. On three occasions, the Agency’s contract physician reported an inability to determine whether Petitioner’s requested accommodations were within the range of options that could assist in meeting the essential functions of her position. Email correspondence within the record reveals that Petitioner was informed that she needed to provide medical documentation describing the nature, severity, and duration of her impairments; the activity or activities that her impairments limit; the extent to which her impairments limited her ability to perform the activity or activities; and why she required reasonable accommodation or the particular reasonable accommodation that she requested, as well as how the reasonable accommodation would assist in performing the essential functions of the job. Agency officials repeatedly informed Petitioner that the medical documentation that she provided did not include an explanation as to why she required the particular accommodations or how they would assist in performing the essential functions of her job. Petitioner responded to the requests by providing the same documentation that the Agency explained was not sufficient to support her request. Therefore, we find that Petitioner has not substantiated her claim that the Agency failed to engage in the interactive process. We note that Commission precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. for recons. denied, EEOC Request No. 05A30114 (Jan. 9, 2003). Here, the record does not indicate that a failure on the Agency’s part to engage in the interactive process caused the denial of accommodation. In this instance, Petitioner contributed to the breakdown of the interactive process when she failed to submit updated medical documentation and resubmitted documentation that she had been informed was insufficient. The only documentation that came close to indicating that Petitioner required the requested accommodations was the notation that she would experience flare-ups one time per week. However, that document simply stated that Petitioner was unable to commute and required telework during flare-ups without an explanation as to why the condition rendered Petitioner unable to commute. Moreover, Petitioner failed to establish that her tardiness was connected to her disabilities and the record reflects that other issues contributed to Petitioner’s difficulty commuting. Accordingly, we find that Petitioner has not demonstrated that the Agency denied her reasonable accommodation request in violation of the Rehabilitation Act. 2020002037 6 To the extent Petitioner alleged a claim of disparate treatment, Petitioner must satisfy the three- part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas, 411 U.S. 792 (1973). Petitioner 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 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 804 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on disability, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal. Specifically, the Agency stressed that Petitioner was removed due to her unacceptable attendance and, as the MSPB AJ noted, Petitioner conceded that she engaged in the charged misconduct. Petitioner has not established that the Agency’s reasons are pretextual. Further, she has not shown that the Agency’s explanation is unworthy of credence. Accordingly, we find that the Agency did not subject Petitioner to disability discrimination. CONCLUSION Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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. 2020002037 7 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 Petitioner’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 December 29, 2020 Date