Lashonda M.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Nov 6, 2019

0120182690 (E.E.O.C. Nov. 6, 2019)

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

Lashonda M.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120182690

Agency No. GSA-17-NCR-WP-0113

DECISION

On August 1, 2018, 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
July 3, 2018, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist,
GS-12, at the Agency’s Repair and Alterations Center Unit (RACU), Public Buildings Service
(PBS), in Washington, D.C.

On July 26, 2017, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her disability (vertigo), age (51), and in reprisal for her
prior protected 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. On May 24, 2017, Complainant’s Supervisor issued a Reasonable Accommodation
Final Decision in which she denied Complainant’s request to telework four days per
week;

2. On May 16, 2017, Complainant’s Supervisor presented Complainant with a
memorandum in which she required Complainant to attend remedial training; and

3. On June 5, 2017, Complainant’s Supervisor presented Complainant with a Record of
Infraction.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The record reflects that on November 30, 2016, Complainant requested reasonable accommodation
in the form of teleworking four days a week. Complainant experiences complications from the
conditions of vertigo and nerve pain in her head. Complainant’s medical conditions caused nausea,
vomiting, imbalance, limited mobility, double vision, sharp stabbing head pain and difficulty
concentrating. Complainant’s physician reported that two to three times per week Complainant
may not be able to fully function intermittently at work due to her symptoms.

Complainant’s Supervisor explained that Complainant served in a critical role in managing
contracts and that included being able to “show initiative in communication, be adaptable to
process and procedural changes and requirements, [be] mentally alert, focus and concentration,
juggle multiple deadlines… possess quick information processing skills, possess excellent
memory, pay attention to details, [have] emotion[al] and physical stamina, and [perform] timely
completion of work with few errors.”

Regarding claim (1), the Supervisor’s denial of Complainant’s reasonable accommodation request
noted that Complainant had been granted an interim accommodation of teleworking three days per
week due to symptom flares. The Agency stated that on May 11, 2017, the Supervisor issued
Complainant a Performance Counseling Memorandum for failing to update the procurement
tracking log in a timely manner and for failing to perform her job duties in an independent and
efficient manner. The Agency stated on May 22, 2017, Complainant requested reconsideration of
her Supervisor’s decision. On June 22, 2017, the Division Director denied Complainant’s request
for reconsideration.

Complainant stated that she personally was not approved two days of telework but rather the Office
of Acquisition as a whole was approved for telework two days a week. Complainant claimed that
her Supervisor stated to her that being sick was just part of being old.

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The Supervisor acknowledged that she was aware as of September 6, 2016, that Complainant
suffered from vertigo. The Supervisor denied that she equated Complainant’s medical issues with
her age. The Supervisor asserted that she had concerns about Complainant’s leave usage and
performance. The Supervisor explained that Complainant was performing below her grade level
and she believed Complainant’s physical presence was needed more in the office for her
development and to receive on-the-job training. According to the Supervisor, she provided
Complainant with a trial accommodation of three days telework even though office policy only
allowed employees two days of telework. The Supervisor maintained that during the trial
accommodation period, Complainant regularly took unscheduled leave one to three days per week;
did not follow through and execute work projects; and had the non-supervisory Team Lead
Contracting Officer complete her projects on most occasions. The Team Lead indicated that he
would have to ask for overtime pay due to being burdened with Complainant’s work.

The Supervisor stated that while on telework, Complainant failed to follow her instructions to use
all communication tools and could not correct the significant deficiencies in her work. The
Supervisor maintained that the interim accommodation was not working well as Complainant was
not receptive to constructive feedback and did not take responsibility for her work. According to
the Supervisor, Complainant each week indicated a need to be on telework or leave due to her
symptoms and she was performing minimal work. The Supervisor asserted it was clear that
Complainant wanted to use telework in lieu of leave because she lacked leave, but she was
incapable of fully performing her work tasks in the office or while teleworking.

The Supervisor stated that Complainant’s medical information did not establish that she needed
four days of telework. The Supervisor noted that Complainant consistently requested unscheduled
leave two to three days per week due to her symptom flares. The Supervisor further noted that
Complainant’s physician explained that Complainant was limited in performing her job duties
when experiencing such flareups. In light of the deficiencies that occurred during the trial
accommodation of three days telework per week, the Supervisor stated that she approved two days
of telework per week and situational telework as deemed appropriate.

The Division Director upheld the Supervisor’s denial based on her assessment of the interim
telework accommodation. According to the Division Director, her review of the frequency and
severity of Complainant’s disability limitations created concern that her medical symptoms limited
her capacity to perform effectively given the nature of her work as a Contract Specialist.

With respect to claim (2), Complainant argued that her Supervisor presented her with a
memorandum in which she required her to attend remedial training, specifically the FCN 190 –
Federal Acquisition Regulation (FAR) Fundamentals class. Complainant indicated there was not
a sufficient number of people registered for the class and the Supervisor volunteered people to
attend. Complainant maintained that she had previously attended the class and received
certification for the course, and therefore she declined to register for the class. According to
Complainant, the Supervisor was informed by a training official that it was a waste of government
monies for her to take the class again.
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Complainant asserted that age was a factor in the instruction to take the class given that the
Supervisor told her that she could benefit through remedial training because at her age she could
be forgetful. Complainant claimed that the instruction was also attributable to reprisal because the
Supervisor believed that she had been disrespectful and disobedient toward her.

The Supervisor denied making the alleged statement concerning Complainant’s age. The
Supervisor stated that the Team Lead had suggested a refresher course. In email correspondence
dated March 1, 2017, from the Supervisor to Complainant and a group of her coworkers, the
Supervisor stated, “If you haven’t registered for the FCN 190, please do so. Although you may
have taken the course a long time ago, it can be a refresher for you.” In a subsequent email dated
March 1, 2017, the Supervisor informed Complainant she did not need to register for this training.

With regard to claim (3), Complainant claimed that on June 5, 2017, her Supervisor presented her
with a Record of Infraction. Complainant asserted that in 2016, her Supervisor approved her
attending a two-week CON 360 – Contracting for Decision Maker class in June 2017.
Complainant was placed on a wait list. Complainant alleged that she informed the Acting Branch
Chief (formerly referred to as the Team Lead) in May 2017, of her plans to attend the class as a
“standby student” in hopes of getting a seat if there were any no-shows. Complainant maintained
that he responded, “good luck.” Complainant traveled to the training site and was subsequently
allowed to attend the class. On June 5, 2017, Complainant’s Supervisor emailed the team to advise
of the Acting Branch Chief’s absence and Complainant responded that she was attending the CON
360 class. On June 5, 2017, Complainant’s Supervisor issued Complainant the Record of
Infraction citing Complainant’s failure to inform her in advance of her attendance of the class.
Complainant disagreed with the reasons for the Record of Infraction because she had to be present
at the training site to know if there was an available seat and because she had informed the Acting
Branch Chief of her plans.

The Supervisor stated that Complainant did not inform her that she would be attending the class
and did not communicate the state of her workload and arrange for back-up. The Supervisor
asserted that she was given no notice to plan for Complainant’s absence for a two-week period.
The Acting Branch Chief maintained that he did not recall being informed and did not receive a
written notification that Complainant would be attending the CON 360 class. According to the
Acting Branch Chief, his personal journal entries on June 6, 2017, indicated he was surprised to
learn Complainant was out of the office for two weeks attending class. The Acting Branch Chief
stated that he would not have granted permission for a two-week absence without obtaining
approval from the Director.

The Agency noted email correspondence between the Team Lead and the Supervisor wherein the
Team Lead commented that Complainant’s work quality is poor, repetitive and inefficient. The
Team Lead stated in a subsequent email that he was unable to count on Complainant to complete
simple tasks and he essentially carried the burden of her workload. The Team Lead noted that
Complainant’s absences affected the reworking of documents and turnaround times.

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In the decision, the Agency initially dismissed the basis of reprisal for each claim on the grounds
of failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant claimed that she
was retaliated against for being disrespectful and disobedient toward the Supervisor’s management
style. The Agency stated that this claim was not based on prior EEO activity or other activity that
was protected by EEOC regulations. As a result, the Agency dismissed reprisal as a basis of
discrimination.

With respect to the Agency’s alleged failure to accommodate Complainant’s disability, the Agency
determined that Complainant was a qualified individual with a disability. The Agency stated that
it took reasonable actions to accommodate Complainant’s disability by way of the trial
accommodation of three days a week of telework. The Agency noted that the trial accommodation
did not prove to be effective. The Agency concluded that based on Complainant’s continuing
performance concerns, the three days a week accommodation was not an effective accommodation
for Complainant’s vertigo episodes. The Agency further noted that Complainant failed to provide
sufficient medical documentation indicating why four telework days were necessary for her to
perform her essential job functions. The Agency stated that Complainant was not entitled to an
accommodation of her choice, but rather an accommodation that was effective, i.e., two days of
telework and situational telework as deemed appropriate. As a result, the Agency found that
Complainant had not been denied reasonable accommodation in violation of the Rehabilitation
Act.

Next, the Agency assumed arguendo that Complainant had set forth a prima facie case of
discrimination and found that management had articulated legitimate, nondiscriminatory reasons
for its actions as documented above. Regarding claim (2), management asserted that it did not
issue Complainant a memorandum requiring her to attend remedial training. The Agency noted
that in her March 1, 2017 email the Supervisor stated that Complainant did not need to register for
the FCN 190 training. Regarding Complainant’s contention that the Supervisor stated that she
needed the remedial training due to her age, the Agency determined that Complainant provided no
evidence corroborating that she uttered that comment.

In terms of claim (3), the Agency stated that Complainant was issued the Record of Infraction after
she took leave to attend a class without providing management any notification of her upcoming
absence and without confirming support for her workload in her absence. The Agency noted that
Complainant argued that she informed the Acting Branch Chief of her absence, but the Acting
Branch Chief stated that he did not recall granting Complainant approval to attend the course. The
Agency pointed out that the Acting Branch Chief sent an email indicating his surprise at
Complainant’s absence.

The Agency determined that Complainant failed to establish that management’s reasons for its
actions were pretext for unlawful discrimination. As a result, the Agency found that Complainant
had not been subjected to discrimination as alleged. Thereafter, Complainant filed the instant
appeal without submitting any arguments or contentions in support.

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ANALYSIS AND FINDINGS

Initially, we observe that the Agency dismissed the basis of reprisal on the grounds of failure to
state a claim. We discern no evidence that Complainant has previously engaged in EEO activity
or any other activity protected by EEOC Regulations. In fact, Complainant does not claim to have
engaged in such activity but rather she states that the retaliatory measures taken against her were
due to her being disrespectful and disobedient toward the Supervisor’s management style.
However, this does not state a claim of reprisal. Accordingly, the Agency’s dismissal of the basis
of reprisal is AFFIRMED.

Denial of Reasonable Accommodation

The Commission notes that an agency is required to reasonably accommodate the known
limitations of a qualified individual with a disability, unless it can show that doing so would cause
an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney
G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision,
we assume that Complainant is an individual with a disability.

Here, Complainant requested four days of telework per week as a reasonable accommodation. The
Agency explained that Complainant received a trial accommodation of three days of telework per
week. However, the Agency stated that Complainant regularly took unscheduled leave one to
three days per week; did not follow through and execute work projects; had the non-supervisory
Team Lead Contracting Officer complete her projects on most occasions and the Team Lead
indicated that he would have to ask for overtime pay due to being burdened with Complainant’s
work.

The Supervisor stated that while on telework, Complainant failed to follow her instructions to use
all communication tools and could not correct the significant deficiencies in her work. The
Supervisor maintained that the interim accommodation was not working well as Complainant was
not receptive to constructive feedback and did not take responsibility for her work. According to
the Supervisor, Complainant was performing minimal work. The Supervisor asserted it was clear
that Complainant wanted to use telework in lieu of leave because she lacked leave, but she was
incapable of fully performing her work tasks in the office or while teleworking.

The Agency ultimately denied Complainant’s request for four telework days and instead offered
the two days of telework that was in adherence with office policy along with situational telework
and leave as needed. We find that while Complainant is entitled to an effective reasonable
accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep't of
Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Complainant has presented no evidence
showing that the four days of telework she sought would have been an effective reasonable
accommodation.
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The Agency pointed out that Complainant failed to provide sufficient medical documentation
indicating why four telework days were necessary for her to perform her essential job functions.
The Agency explained that two days of telework was a better option given Complainant’s
performance concerns, excessive leave, and learning and training needs and that Complainant
could take leave when her condition prevented her from fulfilling her work schedule. We find that
Complainant failed to establish that she was denied a reasonable accommodation in violation of
the Rehabilitation Act.

Disparate Treatment

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). She must generally 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 prima facie inquiry may be dispensed with where the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of disability and age
discrimination as to claims (2-3). The Agency explained with respect to claim (2) that the
Supervisor stated that the Team Lead had suggested a refresher course. The Agency observed that
in email correspondence dated March 1, 2017, from the Supervisor to Complainant and a group of
her coworkers, the Supervisor stated, “If you haven’t registered for the FCN 190, please do so.
Although you may have taken the course a long time ago, it can be a refresher for you.” However,
the Agency noted that in a subsequent email dated March 1, 2017, the Supervisor informed
Complainant she did not need to register for this training. We find that the Agency has presented
a legitimate, nondiscriminatory explanation for its actions in this matter.

With respect to claim (3), the Supervisor stated that Complainant did not inform her that she would
be attending the class and did not communicate the state of her workload and arrange for back-up.
The Supervisor asserted that she was given no notice to plan for Complainant’s absence for a two-
week period. We find that the Agency has articulated legitimate, nondiscriminatory reasons for
issuing Complainant the Record of Infraction.

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Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Complainant maintains that her Supervisor issued her a memorandum requiring her to take
refresher training and only relented after being contacted by the training specialist. However, the
record indicates that the requirement came in the form of an email directed to not just Complainant,
but her coworkers as well. In light of the fact that the requirement was directed to other employees
and Complainant was subsequently not required to attend refresher training, we find that no
discrimination occurred. With respect to claim (3), Complainant argues that she informed the
Acting Branch Chief that she intended to try to attend the CON 360 class and he did not object.
However, the Acting Branch Chief’s contemporaneous notes indicate he was surprised
Complainant was attending the class. We find that Complainant has not established that the
Agency’s stated reasons for issuing her a Record of Infraction were pretext intended to mask
discriminatory animus based on Complainant’s protected classes.

CONCLUSION

The Agency’s dismissal of the basis of reprisal on the grounds of failure to state a claim and its
determination that no discrimination occurred are AFFIRMED.

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.
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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. 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.

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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

November 6, 2019
Date