Complainant,v.Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Stennis Space Center), Agency.

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-0939-0500 (E.E.O.C. Sep. 1, 2015)

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

,
Complainant,

v.

Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Stennis Space Center),
Agency.

Appeal No. 0120130939

Agency No. NCN-11-NSSC-011

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 30, 2012 final Agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant at
the Agency’s Financial Management Division facility in Hancock, Mississippi. In January
2008, Complainant was involved in an automobile accident which resulted in surgery on her
vertebrae. Complainant was involved in a second accident in March 2010, and needed further
surgery to her vertebrae in May 2010. Complainant returned to work in June 2010, and
management accommodated Complainant’s physician’s request that she be mobile for 15
minutes twice in the morning and twice in the afternoon.

On July 26, 2010, Complainant submitted medical documentation to her supervisor (S1) in
which her nurse stated that Complainant was stressed and anxious and needed to be moved to
another area. S1 informed Complainant that there were no available vacant positions to
transfer her. Complainant later submitted documentation from her nurse which simply stated
that Complainant had a medical condition which met the requirements for a disability under the
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Rehabilitation Act. Complainant did not submit any accommodation request with this
documentation, and Agency management continued with the previously granted
accommodation of mobility in the morning and afternoon.

On July 9, 2010, S1 issued Complainant a Memorandum of Instruction regarding her use of
leave. In the memorandum, S1 placed Complainant on leave restriction and established a sign
in/sign out procedure. The memorandum was intended to ensure the accuracy of
Complainant’s timekeeping and management’s expectations of Complainant in requesting,
using, and documenting leave. Further, the memorandum noted that Complainant had a zero
balance of annual leave and negative balance of 230 hours of sick leave. The memorandum
instructed Complainant to receive approval prior to incurring leave.

On July 16, 2011, Complainant left the office without receiving prior approval and was
charged absence without leave (AWOL). In addition, on July 19, 2011, Complainant left the
office without signing out or receiving proper leave approval. On July 21, 2011, S1 issued
Complainant a Letter of Admonishment for not following the instructions established in the
Memorandum of Instruction and for her failure to follow instructions regarding an incident in
which Complainant failed to document a tag-up meeting.

On August 6, 2010, S1 issued Complainant a Letter of Reprimand for Complainant’s failure to
adhere to the July 2010 Memorandum of Instruction. S1 cited eight instances of Complainant’s
failure to abide by the memorandum and Agency leave policies. Additionally, the Letter of
Reprimand noted four incidents of insubordination and Complainant’s failure to follow
directions.

On September 16, 2010, Complainant submitted a formal request for accommodation.
Complainant requested, among other things: a different work space, a divider, headphones,
approval to use email rather than face-to-face interactions with co-workers and her supervisor,
a change in her arrival and departure times, frequent breaks, and to be removed from S1’s
supervision to another supervisor in the Financial Services Branch. On September 20, 2010,
S1 granted most of Complainant’s requested accommodations including, allowing Complainant
to use email as primary communication, and providing Complainant two 15-minute breaks in
the morning and in the afternoon. The Agency obtained headphones for Complainant;
however, Complainant found them to be inadequate and later obtained them from another
source. S1 denied Complainant’s request for reassignment as there were no vacant positions
available. On September 20, 2010, Complainant requested an ergonomic assessment and again
requested a tour of duty change. On November 16, 2010, S1 submitted the request for an
ergonomic assessment, and Complainant was subsequently provided the assessment’s
recommended high-back chair.

On November 8, 2010, S1 issued Complainant a Notice of Proposed (Three-Day) Suspension.
The notice cited seven instances of Complainant’s failure to follow the July 2010 Memorandum
of Instruction and four incidents of insubordination. Complainant responded to the notice,
and, on December 10, 2010, Complainant’s second-level supervisor sustained the suspension.
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On January 7, 2011 (and amended on April 5, 2011), Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of disability and in reprisal for
prior protected EEO activity when on December 10, 2010, she was issued a three-day Notice
of Suspension for January 4 – 6, 2011.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was suspended due to her
continued absences, her abuse of leave, and her failure to follow instructions. S1 analyzed
Complainant’s absences and found that Complainant had taken leave 23 of 26 pay periods from
December 2009 through August 2010. Further, Complainant had a deficiency of -222 hours in
her leave balances, which would have taken her over two years to reimburse, and that she had
worked on average 20 hours per week in the year preceding her suspension. On several
occasions, S2 instructed S1 to change some of Complainant’s AWOL charges to leave without
pay (LWOP) to show management’s support and willingness to support Complainant. Despite
management’s attempts to encourage Complainant to comply with the Agency’s leave policies
and warnings that she could face discipline, Complainant continued to have absences and to
leave work without prior approval. As a result, management decided to issue progressive
discipline in the form of a three-day suspension. The Agency determined that Complainant
failed to show that management’s reasons for its actions were pretext for unlawful
discrimination or reprisal. As a result, the Agency found that Complainant had not been
discriminated against or subjected to reprisal as alleged.

As to Complainant’s reasonable accommodation claim, Complainant alleged that the Agency’s
failure to accommodate her reassignment request directly correlated to her many absences and
ultimately resulted in her suspension. The Agency determined that management had
accommodated all but one of Complainant’s requested accommodations, including periodic rest
breaks, a flexible schedule, and use of email as a primary form of communication. The
Agency attempted to reassign Complainant to the Financial Services Branch as she requested;
however, there was no available position. As a result, the Agency found that management had
not denied Complainant reasonable accommodation in violation of the Rehabilitation Act. The
instant appeal followed.

1 The Agency dismissed several additional claims pursuant to 29 C.F.R. § 1614.107(a)(2) as
untimely and 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant raised no
challenges regarding the dismissal of these claims on appeal; therefore, the Commission will
not address them in this decision.
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CONTENTIONS ON APPEAL

On appeal, Complainant argues that she has suffered severe discriminatory and retaliatory
actions by the Agency and that her health and livelihood have been affected. Complainant
contends that she has documents and evidence showing why she believes she has been
discriminated and retaliated against. Accordingly, Complainant requests that the Commission
reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that Complainant failed to present evidence to rebut
the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, the record
evidence reveals that Complainant was issued the Notice of Suspension for violating the
Agency’s leave policies and the July 2010 Memorandum of Instruction. ROI, Ex. 11a. On
July 9, 2010, S1 issued Complainant the Memorandum of Instruction placing Complainant on
leave restriction and providing her instructions and expectations regarding her use and
documentation of leave. ROI, Ex. 11d1. S1 issued it based on Complainant’s low leave
balances and her frequent absences. ROI, Ex. 8, at 2. S1 subsequently issued Complainant a
Letter of Admonishment on July 21, 2010 and a Letter of Reprimand on August 6, 2010,
based on Complainant’s continued difficulties in adhering to the Agency’s leave policies and
the Memorandum of Instruction and other conduct issues. ROI, Ex. 11d2 On November 8,
2010, S1 issued Complainant a Notice of Proposed (Three-Day) Suspension as progressive
discipline after Complainant incurred additional charges of AWOL in violation of the
Memorandum of Instruction and for failure to follow instructions on numerous occasions.
ROI, Ex. 11a. On December 10, 2010, S2 sustained the suspension. ROI, Ex. 11c.

The Commission finds no evidence that Complainant's protected classes were a factor in any of
the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
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reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that she was subjected to discrimination or reprisal as alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant alleges that the Agency’s failure to accommodate her
was the reason for her ultimate suspension, the Commission notes that an agency is required to
make reasonable accommodation of the known physical and mental limitations of a qualified
individual with a disability unless it can show that accommodation would cause an undue
hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). In the instant case, the Agency provided
Complainant with all but one of her requested accommodations, including primary email
communication with co-workers, rest breaks, a high-back chair, and headphones. Complainant
has offered no evidence that the provided accommodations were ineffective. While
Complainant requested reassignment, there is no evidence in the record that there was a
vacant, funded position for which Complainant was qualified and to which she could have been
reassigned. Accordingly, the Commission finds that the agency did not fail to accommodate
Complainant.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

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 Complainants 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 1, 2015
Date