Claudia A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120171713 (E.E.O.C. Dec. 12, 2018)

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

Claudia A.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120171713
Hearing No. 570-2015-00674X
Agency No. HSH017732014

DECISION

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 March 10, 2017, final
decision 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-13, at the Agency’s Enterprise Business Management Office (EBMO)
facility in Washington, D.C. Complainant took a voluntary downgrade to this position on
February 9, 2014. Previously, she was a GS-15 Program Manager with the Agency.

In April 2012, Complainant fell at work and was injured. As a result of this injury, she has been
diagnosed with disc displacement, thoracic pain, myofascial pain, muscle spasm, cervical
radiculopathy, and cervical disc displacement. Complainant’s ability to work, to care for herself,
to sit, to stand, and to walk has been impacted. Her complaint details that her pain and
medications cause mental impairment as well.

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's doctor opined that with ergonomic furniture and period breaks, Complainant
could handle the position on a full-time basis in the office. Her doctor did not indicate that, based
on her medical condition, she needed training prior to receiving assignments. On November 29,
2013, Complainant requested an ergonomic workstation, evaluation and ergonomic
modifications to her workstation, telework, a flexible location (to work from home), a flexible
work schedule, and flexible use of leave. Complainant was granted a telework schedule and
elected to telework at all times giving rise to this complaint.

On September 10, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (mental and physical) and denied her a
reasonable accommodation (RA) when:

1. The Agency failed to provide Complainant with four to six months of time for training,
necessary training materials, access to resources, and time to learn foundational
information before receiving assignments as agreed to by the Deputy Director in
December 2013 and February 2014.
2. On April 14, 2014, the Director assigned Complainant work without providing her
access to required resources and training, as previously agreed to by the Deputy Director.
3. On June 25, 2014, Complainant's first-line supervisor, the Director, placed her on a
Performance Improvement Plan (PIP).
4. On July 11, 2014, the Director had only partially provided Complainant with items on
her RA list.
5. On August 4, 2014, Complainant learned that the ergonomic modifications to her
assigned office space were not installed.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but
subsequently withdrew her request. Consequently, 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 her to discrimination as alleged. On appeal, Complainant did not submit a
brief or supporting statement.

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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”).

Claims 1, 2, 4, and 5

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation,
Complainant 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.
§1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance on Reasonable Accommodation”).

An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience,
education, and other job-related requirements of the employment position that the individual
holds or desires and, with or without reasonable accommodation, can perform the essential
functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental job
duties of the employment position that the individual holds or desires. Id. § 1630.2(n).

We will assume for the purposes of this decision, without deciding, that Complainant is disabled.
Based on her medical condition, Complainant’s doctor opined that she was capable of working
full time with reasonable accommodations, specifically ergonomic furniture and periodic breaks.
The record reflects that the Agency engaged in an interactive process with Complainant to
process her reasonable accommodation request.

Specifically, after Complainant made her November 29, 2013 request, the Agency participated in
an ongoing dialogue between November 2013 and April 2014, to find an appropriate
accommodation.
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During this period, the Agency provided Complainant with an ergonomic work-station
assessment, full-time telework from her home, a flexible work schedule, flexible use of leave,
periodic short breaks, additional time to complete training and assignments, as well as additional
training to assist her in completing her assigned assessments. The Agency maintained, however,
there is no evidence to support Complainant’s claim that she was promised four to six months of
time to complete training and resource materials. The Deputy Director at the time directly refutes
this allegation. Additionally, the record does not contain a recommendation from Complainant’s
doctor, based on a medical need, for an accommodation for training. Regardless, the Agency did
provide online training, including real time training viewing a coworker’s screen as assessments
were processed, as well as one-on-one training for Complainant with the Director at
Complainant’s home.

Regarding claim two, the Deputy Director at the time averred that in the approximate one year
she and Complainant worked together at EBMO, she was not aware of any completed work
product submitted by Complainant. Complainant discussed the voluntary opportunity to select a
downgrade to a GS-13 level with the Deputy Director. Prior to Complainant selecting the new
GS-13 position on February 9, 2014, Complainant was provided with scoring guide and
reference materials as well as the instruction manuals for preparing IT Dashboard assessments, a
required task of the position.

The record establishes Complainant received her first assignments on February 24, 2014, from
the Director at the instruction of the Deputy Director at the time. Contrary to Complainant’s
allegations, Complainant was provided access to Program Health Assessments Guidebook, IMS,
and SharePoint on or before February 27, 2014, in order to complete assessments as required by
her position. Her first training session occurred on February 26, 2014. The Agency informed
Complainant that the nPRS training was not required. Thereafter, Complainant requested three to
four weeks prior notice before she received training in her home. During the training sessions,
Complainant demonstrated that she was able to navigate through forms and other pages in order
to complete an assigned assessment. However, Complainant failed to complete the assigned
assessments including an assessment assigned on April 14, 2014.

Regarding claims four and five, while a qualified individual with a disability is entitled to a
reasonable accommodation, he or she is not necessarily entitled to the accommodation of choice.
See Complainant v. United States Postal Service, EEOC Appeal No. 01931005 (February 17,
1994). Complainant received an in home ergonomic assessment as well as ergonomic
accommodations for her telework capability based on her medical need. Regarding the
ergonomic accommodations for her office work space, the record indicates after her ergonomic
assessment the purchasing was put on hold due to Complainant’s selection of a telework
schedule. Complainant never returned to the office after her medical leave in order for the
necessary assessment and modifications for her in office ergonomic accommodation request to
be completed. Accordingly, Complainant failed to establish that the Agency denied her
reasonable accommodation.

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Ultimately, we find that Complainant received all of her requested reasonable accommodations
except for the amount of training she requested and ergonomic furniture in her office. We find
that Complainant failed to show a medical need for additional training and we find that
Complainant was accommodated with full-time telework. Furthermore, Complainant’s failure to
return to the office to complete the ergonomic assessment meant that the office furniture (not
necessary since she was teleworking) could not be installed.

Claim 3

Complainant alleges she was treated differently than other employees by being placed on a PIP
on June 25, 2014. In analyzing a disparate treatment claim under the Rehabilitation Act, where
the Agency denies that its decisions were motivated by Complainant's disability and there is no
direct evidence of discrimination, the Commission applies the burden-shifting method of proof
set forth in McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens
Village Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir.
1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order
to establish a prima facie case, Complainant must demonstrate that: (1) she is an “individual with
a disability”; (2) she is “qualified” for the position held or desired; (3) she was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).

The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were
a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is
her obligation to show 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); U.S. Postal Serv.
Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming arguendo that Complainant established a prima facie case of discrimination, the record
reflects that the Agency articulated legitimate, nondiscriminatory reasons for placing her on a
PIP. In the final decision, the Agency explained that it placed Complainant on a PIP because she
failed to meet the requirements of her performance work plan and was unable to complete
assignments successfully. The record establishes an essential part of Complainant’s job as a
Management and Program Analyst is to support the Program Assessments team by completing
all assigned IT Programs Health Assessment evaluations in a timely manner. The Agency
articulated that Complainant failed to perform these essential functions.

Complainant failed to establish that the Agency’s legitimate, nondiscriminatory reason was a
pretext for discrimination. The record shows that Complainant was provided with the necessary
training and resources to be able to complete her assessment assignments, and there is no support
for Complainant’s claim that the Director placed her on the PIP based on her disability.
Additionally, Complainant has not provided any facts to establish similarly situated employees
outside of her protected class were treated differently from her.
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CONCLUSION

Accordingly, we AFFIRM the Agency’s decision finding no discrimination.

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.
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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

December 12, 2018
Date