Karry S.,1 Complainant,v.Dana J. Boente, Acting Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120143245 (E.E.O.C. Feb. 16, 2017)

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

Karry S.,1
Complainant,

v.

Dana J. Boente,
Acting Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Appeal No. 0120143245
Agency Nos. ATF-2012-00892, ATF-2013-00161

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated September 4,
2014, finding no discrimination with regard to her complaints 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. For the following reasons, we AFFIRM the
Agency’s final decision.

BACKGROUND

The record indicates that Complainant filed two complaints, ATF-2012-00892 on September 5,
2012, and ATF-2013-00161 on January 29, 2013. The Agency consolidated the two
complaints and addressed them in one decision.

ATF-2012-00892

The Agency framed Complainant’s claims as whether she was discriminated against based on
race (Hispanic)2, sex (female), disability (neurological condition), and in reprisal for prior
EEO activity when:

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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(1) Responding officials failed to timely update her on the status of her reasonable
accommodation requests and otherwise failed to engage in the interactive process from
February 2012 - September 5, 2012;

(2) On April 27, 2012, her supervisor (S1) denied her reasonable accommodation request
to telework during her upcoming Duty IOI week, which was April 30, 2012 - May 4,
2012; and

(3) The Agency failed to provide her an effective accommodation for her disability on June
5, 2012.

ATF-2013-00161

The Agency, undisputed by Complainant, framed the claims as whether she was discriminated
against based on sex (female), disability (neurological condition), and in reprisal for prior EEO
activity when:

(4) From April 30, 2012 - January 28, 2013, her reasonable accommodation request to
telework during her Duty IOI weeks were denied; and

(5) Her Director of Industry Operations (DIO) rated her “Interpersonal Relations” as
“Minimally Satisfactory” on her 2011-2012 annual performance evaluation and she was
initially not given enough time to include her comments and sign the evaluation.

After completion of the investigation of the complaints, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision consolidating the two
complaints and finding no discrimination. In its decision, the Agency also dismissed the
claims based on sex, race, and disability for failure to state a claim. Complainant filed her
appeal. On appeal, Complainant indicates that the Agency failed to investigate her claim
regarding a Letter of Reprimand (LOR) of February 14, 2012, which was later amended on
February 22, 2012.

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 (EEO MD-110), Chap. 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

2 We shall treat this basis as also alleging national origin discrimination. We find no
discrimination based on any race or national origin.
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submissions of the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").

LOR claim

On appeal, Complainant contends that the Agency failed to investigate her LOR. The record
indicates that Complainant, although she raised the claim in the complaint for ATF-2012-
00892, did not raise the claim during EEO counseling. The Agency, in refusing to accept the
LOR claim, indicated in its acceptance of the complaint in a letter dated October 19, 2012
(modified on December 11, 2012), that Complainant raised the LOR in her prior complaint,
Agency No. ATF-2012-00137, filed on January 17, 2012, which was pending for its issuance
of a final Agency decision. The record indicates that after she filed her prior complaint,
Agency No. ATF-2012-00137, Complainant was issued the LOR. In February, 2012,
Complainant asked the Agency EEO Manager if she could add the LOR to the prior complaint,
Agency No. ATF-2012-00137, for investigation. The EEO Manager instructed Complainant
to amend the prior complaint to include the subject claim if she wanted the LOR claim
investigated. According to the Agency, Complainant then told the EEO Manager that she will
consult with her attorney and would make a decision. Complainant does not dispute the
foregoing. Complainant did not amend the prior complaint to add the LOR. The record
indicates that the investigation of the prior complaint was conducted from April 14, 2012,
through May 25, 2012. In its June 17, 2013 final Agency decision, the Agency found no
discrimination concerning the prior complaint without addressing the LOR. The record
indicates that Complainant appealed and the Commission in EEOC Appeal No. 0120132821
(July 15, 2015) affirmed the Agency’s June 17, 2013 decision.

Once a claim is set forth in a complaint then an agency must accept and investigate the claim
pursuant to 29 C.F.R. § 1614.106 or dismiss the claim pursuant to 29 C.F.R. § 1614.107.
Here, the Agency did neither. That was in error. In the interests in judicial economy, however,
we are not remanding the LOR claim when it is clearly subject to dismissal for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Although the LOR claim may have
been timely raised during the processing of ATF-2012-00137 (the prior complaint),
Complainant did not amend her prior complaint despite being provided the opportunity. Thus
any attempt to raise the LOR claim during the processing of ATF-2012-00137 (the prior
complaint) must be considered abandoned. For purposes of the instant complaints, the LOR
claim was not raised until at the earliest September 5, 2012 (the filing of one of the instant
complaints). The LOR date was in February 2012. Thus, Complainant’s contact in September
2012, was clearly beyond the 45-day time limit and we find the LOR claim is properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).

Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) she is an individual with a disability, as
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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 a reasonable accommodation.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”). 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. See
29 C.F.R. §§ 1630.2(o) and (p). Here, we will assume without deciding (for the purposes of
this decision) that Complainant is an individual with a disability.

The record indicates that during the relevant time period at issue, Complainant was employed
as an Industry Operations Investigator (IOI), GS-1801-13, at the Agency’s Albuquerque II
Field Office (AFO), Phoenix Field Division, Office of Field Operations, Albuquerque, New
Mexico. Complainant indicated that she was diagnosed with a neurological condition called
Cerebeller Tonsillar Ectopia in May, 2010, which made her especially sensitive to certain
lighting conditions, including directly or indirectly seeing the light coming from her office
computer screen, the office’s various overhead lights, or the office’s windows at certain times
of day. Complainant also indicated that exposure to the office’s lighting conditions triggered
and/or exacerbated her neurological symptoms, which included debilitating headaches, neck
aches, and nausea; and her symptoms occurred about five times a month even without
exposure to the office lighting. In a letter dated June 18, 2012, Complainant’s physician
indicated that Complainant had a medical condition that made her sensitive to light especially
when working on the computer; in doing computer work with too much ambient or screen
illumination, she suffered from an increase in headaches with accompanying nausea; and she
should be given a work area with reduced or subdued lighting or be allowed telework.
Complainant indicated that she could control the lighting environment at her home.

With regard to claims (1) and (3), the record indicates that on December 28, 2011,
Complainant made a reasonable accommodation request to move her desk to the north wall so
that she did not have to stare at lights while typing on her computer. We note that while an
individual with a disability may request a reasonable accommodation due to a medical
condition, this request does not necessarily mean that the employer is required to provide the
request. A request for reasonable accommodation is the first step in an informal, interactive
process between the individual and the employer. See Enforcement Guidance at Question 1;
29 C.F.R. § 1630.9. Upon review, we find that during the relevant time period at issue, the
parties were clearly engaged in the interactive process via numerous electronic messages,
phone calls, and meetings trying to accomplish Complainant’s requests. Despite
Complainant’s claim, she submitted, during the investigation of the complaint, numerous
exhibits of electronic messages between the parties concerning her accommodation requests.

Specifically, the record indicates that in January, 2012, Complainant, S1, a Reasonable
Accommodation Coordinator, the DIO, other Agency officials, building management, and
contractors started to work on the floor plan to reconfigure her workstation to move her desk
to the north wall to address her sensitivity to light. The parties discussed two layouts for the
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reconfiguration, replacing lights and lamp fixtures with the “egg crate” fixture for less harsh
lights, placement of shelves and extra panels, the costs of the work, and a redrawing/revision
of the floor plan for Complainant’s approval. In February, 2012, the record indicates that
Complainant expressed her concerns about a gray desk by the entrance of the proposed
workstation and placement of her file shelves; and she also asked to have her workstation
configured as other IOIs’ workstation. On February 23, 2012, Agency Special Agent in
Charge approved Complainant’s workstation reconstruction of which she agreed and the
Agency submitted a work order to proceed with the reconstruction. Both the Agency and
Complainant believed that the new workstation would accommodate her medical conditions.

After the Agency’s approval of the reconstruction, the record indicates that in March and
April, 2012, the contractors and Agency officials had further conversations about labor pricing
and tried to expedite and finalize panel reconfiguration. The installation of the workstation
was scheduled for May 15, 2012. On May 15, 2012, the contractors, without notifying the
Agency, did not come to the office to install Complainant’s workstation as scheduled. On May
17, 2012, the Agency officials were informed that the contractors did not come on May 15,
2012, because two workstation panels did not arrive to its warehouse. The parties rescheduled
the installation for June 5, 2012. Complainant acknowledged that on June 5, 2012, her
workstation was reconstructed and reconfigured as she requested. A few hours thereafter,
Complainant however notified S1 that the reconfiguration did not resolve her symptoms
because the light over her next neighbor’s desk was now bothering her peripheral vision giving
her headache. The record indicates that the Agency officials then discussed with building
managers about raising the partitions on Complainant’s workstation to the ceiling to block the
lights coming from the neighbor, but they were informed that it was not a practical solution
since it would disrupt the air flow for the heating and air condition systems of the office.

The record clearly indicates that during the reconfiguration of her workstation, Complainant
was apprised of its progress and was provided an alternative work site, a conference room, to
use when she came into the office. Meanwhile, the parties also discussed and explored other
accommodating options, i.e., purchasing an anti-glare screen for Complainant’s computer and
her wearing a hat or sunglasses while using her computer, of which Complainant indicated that
they did not effectively resolve her symptoms. When the new reconfigured workstation did not
resolve Complainant’s symptoms, the parties further discussed changing the conference room
to accommodate her conditions. The record indicates that the Agency officials proceeded to
black-out the conference room by placing black-out blinds, purchasing a lamp, and replacing a
movement sensor with on/off light switch as Complainant specifically requested. Complainant
does not dispute this on appeal and does not argue that working in the conference room failed
to accommodate her conditions. In her January 26, 2013 electronic message to S1,
Complainant admitted that the light switch in the conference room was taken care of as she
requested.

Based on the foregoing, we find that the parties were clearly engaged in an interactive,
ongoing process to accommodate Complainant’s conditions and the Agency did not fail to
accommodate her request. Complainant acknowledged that she was allowed to telework since
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late 2007, except on rare occasions when there was a meeting in the office and during her Duty
IOI, as discussed herein.

With regard to claims (2) and (4), Complainant claimed that she was denied her reasonable
accommodation request to telework during her Duty IOI weeks from April 30, 2012 to January
28, 2013. Complainant indicated that she and eight other IOIs in her office were assigned to
the Duty IOI week every eight or nine weeks in a rotational basis. Complainant claimed that
she could come in to the office during the mornings of her Duty IOI week to process mail and
forward the office phones to her mobile phone, and then telework the rest of the office day.
Specifically, S1 indicated that S1 denied Complainant’s request indicating that all IOIs were
required to conduct field assignments related to inspections of firearm and explosive applicants
and licenses. S1 stated that since the office had no administrative staff, all IOIs were tasked
with the Duty IOI week once every eight to ten weeks, depending upon staffing levels and
scheduling. S1 stated that the Duty IOI was needed in the office all day to assist with
administrative duties including processing and picking up mail, answering telephone inquiries,
providing assistance to Agency Criminal Enforcement, providing assistance to individuals that
come to the office, and conducting duties as assigned by the supervisor. S1 indicated that the
Duty IOI in the office was an essential element of an IOI’s job for the efficiency of the office
and that, otherwise, S1 would be in the office alone overwhelmed with work without any
support from her IOI during Duty IOI week.

Upon review, we find that allowing Complainant to telework as she requested constitutes an
undue hardship since such action would compromise the efficiency of the office and result in
S1 being overwhelmed with work without any IOI support. See 29 C.F.R. § 1630.2(p)(2);
Enforcement Guidance at Question 43. Furthermore, we note that on appeal, Complainant
does not dispute the fact that the Agency accommodated her conditions by moving her into the
conference room, described above, and despite her claim, we note that she was not entitled to
an accommodation of her choice, i.e., teleworking during the Duty IOI week (rather than
working in the conference room which accommodated her claimed disability).

With regard to claim (5), the DIO indicated that he gave Complainant an overall rating of
“Exceeds” but gave her the rating at issue for her interpersonal relations because she had
difficulty in working with her peers. Complainant acknowledged that she and her coworkers
did not get along well.

The DIO also indicated that on October 25, 2012, Complainant was informed to include her
comments in the evaluation at issue by October 31, 2012, but she failed to do so. The DIO
stated that in Human Resources Connect he indicated that Complainant’s appraisal and critical
elements were closed out and she was unwilling to acknowledge them. On November 1, 2012,
Complainant notified the DIO that she did not get to the evaluation in a timely manner because
she was Duty IOI and she was sick on October 31, 2012. Complainant acknowledged that on
November 5, 2012, she was ultimately allowed to access her evaluation and she added her
comments and signed the evaluation at issue on November 7, 2012. After a review of the
record, we find that Complainant failed to show that there were any similarly situated
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employees not in her protected groups who were treated differently under similar
circumstances.

Based on the foregoing, we find that Complainant failed to show that she was denied a
reasonable accommodation or that any Agency actions were motivated by discrimination.
Complainant does not allege that she was required to perform her duties beyond her medical
restrictions. With regard to her argument that these claims amounted to harassment, we find
that Complainant failed to establish the severity of the conduct in question or that any of the
alleged incidents were motivated by discrimination.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.3

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 request or opposition must also include proof of service on the other
party.

3 Although the Agency in its decision also dismissed Complainant’s claims based on sex, race,
and disability for failure to state a claim, since we affirmed its finding of no discrimination on
those bases, we do not address whether the procedural dismissal was proper.
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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 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

February 16, 2017
Date