[Redacted], Herb L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2022000191 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000191 Hearing No. 510-2020-00143X Agency No. 200I-0010-2019103705 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 7, 2021, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency’s Network Contracting Office-8 in Tampa, Florida. On September 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (post-traumatic stress disorder (PTSD)) when, on August 20, 2019, Complainant’s second-level supervisor (S2), Supervisory Contract Specialist/Division Chief, denied his reasonable accommodation request to telework 3 days per week. 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. 2022000191 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ held a hearing on April 26, 2021, and issued a decision in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. The Agency and Complainant stipulated to the following. Complainant was a qualified individual with a disability. Prior to April 22, 2019, Complainant was permitted to telework for one day per week, and the Agency never offered him more than that amount of telework during the time relevant to the complaint. Complainant had requested coverage under the Family and Medical Leave Act (FMLA), which the Agency approved on April 15, 2019. Complainant’s annual and sick leave were eventually exhausted due to Complainant’s medical issues. The AJ found Complainant’s PTSD symptoms became aggravated when he began working for his first-line supervisor (S1), Branch Chief. Complainant’s chosen work schedule consisted of him working four days per week for 10 hours each day. Immediately after his FMLA request was approved, Complainant requested a reasonable accommodation of 3 days of telework per week. Complainant felt the 3 days of telework would help him perform his duties by avoiding workplace conflict with S1 and be in lieu of him taking leave without pay under the FMLA. The AJ noted that on the same day Complainant made his reasonable accommodation request, he signed his midyear performance review, which stated that Complainant needed improvement. After receiving Complainant’s request for a reasonable accommodation, Agency management asked Complainant’s medical provider for additional information. The Agency asked the provider some clarifying questions, such as why telework would help Complainant given that he had to interact with management officials and team members while in person or teleworking, what “environmental stressors” in the workplace exacerbate his symptoms, and what recommendations the caregiver had to reduce those stressors. The provider wrote that Complainant “has reported [the] perception that telework will allow him to employ his mood and anxiety coping strategies” and that his “anticipation is that reducing his exposure to [face-to-face interactions] will result in less perceived mood and anxiety symptoms.” She also suggested that “[r]educing external stimulus such as noise, light may be of benefit.” Based on its review of these responses and the other documentation Complainant provided, the Agency offered Complainant the following accommodations: (1) noise-cancelling headphones; (2) dimming of the office lights and closing his office door; (3) additional break periods for medical issues (use of annual leave, sick leave or leave without pay); and (4) meetings with S1 to discuss specific issues that were the source of the conflict. Though Complainant initially accepted these options, a few days later he asked for reconsideration of the Agency’s reasonable accommodation determination. 2022000191 3 According to his testimony, Complainant felt that the noise-cancelling headphones would prevent him from hearing the phone ring or when someone was trying to get his attention, that he could already turn off his lights, and that the use of break periods would use up his leave time. The Agency denied Complainant’s request for reconsideration, believing that what it offered Complainant met with his provider’s recommendations and would allow for sufficient in-person supervision of Complainant in order to improve his performance. The AJ found that, based on testimony at the hearing, Complainant’s concerns regarding the offered accommodations were adequately addressed. His phone had a light on it that would indicate when the phone rang, calls could be forwarded to his cell phone that vibrated, or the caller could leave a message. If Complainant’s door was closed, someone could knock or return later, or a message could be left at the door. Complainant was already turning off the lights in his office, but having one’s door closed with the lights off was against office policy, and Complainant worried he could get in trouble. If management approved such accommodations, however, the AJ found Complainant had no cause to worry about violating that policy. As for use of leave time, the AJ found that Complainant had not presented evidence showing that increasing his telework to 3 days per week would decrease the need for breaks. Lastly, the AJ concluded that Complainant “did not want to meet with [S1] as he had issues with her judgment and morals. Because Complainant had these issues with [S1] and when he thought he was being treated negatively, Complainant would have issues with his PTSD flaring up.” The AJ found, based on Complainant’s testimony, that reducing Complainant’s in-person interactions with S1 could be accomplished by S1 telephoning Complainant in his office as opposed to speaking to him face-to-face, which would have a similar effect to when he spoke with S1 remotely while teleworking. The AJ determined that the Agency’s four-pronged accommodation offer properly addressed what Complainant’s medical provider noted would help Complainant-“as opposed to what Complainant told the care giver would work”-while also permitting the Agency to monitor Complainant’s performance.2 In addressing Complainant’s argument that others were allowed to telework two days per week while he was not, the AJ found that this was due to office policy that required contract specialists to be in the office a minimum of 3 days per week, and that those permitted to telework for 2 days did not have the compressed, 4-day-week schedule Complainant did. The AJ concluded that the Agency had not failed to accommodate Complainant in violation of the Rehabilitation Act. On appeal, Complainant argues that the alternative accommodations the Agency offered “were not actual accommodations” and that they were not effective at mitigating his PTSD symptoms. For instance, Complainant argues that the headphones would “be frowned upon” and hinder his ability to do the functions of his job, that having his lights off with the door closed would create a negative perception among his colleagues, that providing him additional breaks was not new since he was already entitled to use his leave for medical reasons, and that he was already 2 The AJ noted that after not receiving his requested accommodation, Complainant resigned from the Agency. 2022000191 4 permitted to meet with S1 to discuss their issues, but because S1 “was in fact the source for triggering Complainant’s symptoms of PTSD,” such meetings would not be helpful. Complainant contends that face-to-face interactions with S1 would further exacerbate his disability because he felt their disagreements over work decisions triggered his symptoms. Complainant also argues that none of his essential job functions would have been affected by the Agency granting his desired accommodation, because none of his clients were local to Tampa where his office was located. He therefore argues that the Agency failed to look past his position description to focus on what his actual job entailed when it assessed his request for increased telework. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 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. 29 C.F.R. § 1630.9. In order to establish he was unlawfully denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (October 17, 2002). Here, assuming that Complainant is a qualified individual with a disability, we find Complainant has not established he was denied a reasonable accommodation when the Agency denied his request to telework for 3 days a week. On appeal, Complainant does not show that he was denied an accommodation for which he has shown or provided sufficient medical documentation as necessary for his duties. Complainant’s caregiver, when asked, simply stated that Complainant’s “perception” was that he needed fewer face-to-face interactions with S1, but she noted on her own that noise reduction and less light would be helpful. Moreover, substantial evidence supports the AJ’s finding that the Agency’s offered accommodations were effective. 2022000191 5 The Agency’s consideration of Complainant’s performance and ability of management to directly observe his work was reasonable. The Agency offered Complainant the alternatives of noise-cancelling headphones, permission to shut off his lights and close his door, to take breaks during the day using his leave, and to discuss issues with his supervisor. While Complainant would have preferred the requested 3 days of telework per week for the reasons he states on appeal, we do not find that the AJ erred in concluding that the Agency attempted to reasonably accommodate him and sufficiently addressed the possible pitfalls of the accommodation options presented to him. We also find that the Agency did not solely consider his position description in making its determination, as Complainant suggests. It is the Commission’s position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9; see EEOC Enforcement Guidance on Reasonable Accommodation, at Question 9; Complainant v. Dep’t of Def., EEOC Appeal No. 01970984 (Jan. 16, 2001). Thus, while Complainant is entitled to an effective reasonable accommodation under the Rehabilitation Act, he is not entitled to the accommodation of his choice. Substantial evidence supports the AJ’s conclusion that Complainant’s reasons for refusing the alternatives were insufficient to show that the offered accommodations were not effective. Accordingly, we agree with the AJ that the Agency provided Complainant with an effective reasonable accommodation despite the fact it was not the accommodation he had requested. Thus, we find that Complainant has failed to show he was denied a reasonable accommodation. CONCLUSION Accordingly, we AFFIRM the AJ’s decision, which became the Agency’s final order, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2022000191 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000191 7 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 January 4, 2023 Date